Jarboe v. Hayden

Opinion of the Court by Wm. Rogers Clay, Commissioner

Reversing.

These two eases involving the same questions were heard upon an agreed statement of facts, and will therefore be considered together.

'The facts are as follows: John R. Jarboe and Charles Jarboe obtained a judgment against appellee, William Hayden, at the- September, 1908, term of the Marion Circuit Court. At the January, 1908,_ term of the same court R. A. Burton’s administrator also obtained judgment against appellee, William Hayden. Neither of said judgments has been satisfied in whole or in part. Executions were issued on said *380 judgments in the month of September, 1808, in favor of appellants (plaintiffs below), and were placed in the hands of the sheriff of Marion county. Thereupon the sheriff levied said executions upon a tract of land, worth about $500, which was occupied by the appellee as his home, and-also upon a horse and buggy valued at $150, and household furniture valued at $25. Prior to her death appellee’s wife, Mary C. Hayden, owned a small farm worth about $500. Upon this farm appellee and his wife lived for more than twenty years. This was the only land owned by appellee or his wife. Appellee’s wife died in the year 1907, leaving a last will and testament which was duly probated in the Marion County Court. By this will she devised the farm, on which she and appellee lived, to appellee in fee simple. Appellee never at any time renounced the provisions of this will, but accepted and held the land under the will. Since his wife’s death appellee has had no one living with him who was dependent upon him for support, but lives entirely alone. Some months after his wife’s death he sold and conveyed the land devised to him by his wife for the sum of $500, and with the identical money purchased the home upon which the executions were levied. Immediately upon leaving the home devised to him by his wife, he moved to his present home and is still occupying it as- a home. The debts upon which appellants brought suit were incurred prior to the death of appellee’s wife. The cases being consolidated and submitted for judgment, the trial court held that neither appellee’s real estate nor personal property was subject to the executions in favor of plaintiffs below. From that judgment this appeal is prosecuted.

*381 We shall first consider the question whether or not appellee’s home is exempt as a homestead. There are two classes of homestead, one arising by virtue of Sec. 1702, Ky. St. (Russell’s St. Sec. 4661), and the other by virtue of Sec.1708 (Sec. 4667). To entitle one to homestead under Sec. 1702 two conditions are necessary: First, the claimant must be an actual, bona fide housekeeper with á family resident in this Commonwealth; second, the debt or liability sued upon must not have existed prior to the acquisition of the homestead. Both of these requirements are lacking in the cases before us. Neither at the time his wife devised her farm to him nor at any other time since her death has appellee had any one living with him who was dependent upon him for support. Furthermore, the debts sued upon were incurred prior to the time of his wife’s death arid before he acquired the home. It is apparent, then, that appellee is not entitled to homestead under and by virtue of Sec. 1702. The only other statute giving the right of homestead is Section 1708, which is as follows: “The homestead of a woman shall, in like manner, be for the use of her surviving husband and her children, situated as 'above, and when his and their interest ceases it shall be disposed of in like manner and the proceeds applied on the same terms to her debts if none, divided among her children.” There can be no question that under this section appellee could have elected to claim a homestead in the land of his wife. Ellis v. Davis, 90 Ky. 183 , 14 S. W. 74 , 11 R. 893 . This he did not do, but, on the contrary, elected to take under the. will, and thereby acquired the property in fee simple. In a long line of decisions this court has held that a homestead may be disposed of .'by will, 'and that unless the *382 widow renounces the will she will not be entitled to homestead in the property devised. Taylor v. Loller’s Ex’rs, 3 S. W. 165 , 8 Ky. Law Rep. 773 ; Hazelett, etc., v. Farthing, etc., 94 Ky. 421 , 22 S. W. 646 , 14 R. 197 , 42 Am. St. Rep. 365 ; Harrison v. Taylor, 51 S. W. 193 , 21 Ky. Law Rep. 287 , Nichols v. Lancaster, 32 S. W. 676 , 17 Ky. Law Rep. 777 . The same rule, of course, by'parity of reasoning, applies to the husband’s homestead derived through his wife. Having elected to take the fee simple title, he could not thereafter claim a homestead in the property devised. By taking under the will, his position was the same as if he had acquired the property by purchase. Nichols v. Lancaster, supra. Not being entitled to a homestead either by virtue of Sec. 1702 or 1708, Ky. St., it follows that the land occupied by appellee as a homestead is not exempt from execution. As appellee has no family, it also follows that the personal property levied upon is not exempt from execution. Sec. 1697, Ky. St. (Russell’s St. Sec. 4656).

Judgment reversed and cause remanded for proceedings consistent with this opinion.