Rogers v. Marsh

1. Homestead: widow’s title : bights of children. Where a husband at the time of his death occupies as a homestead land of which he is seized in fee, the wife will become seized of a fee, and the minor children will be entitled to enjoy the land with her until they attain their majority. Wag. Stat., p. 698, § 5. 2. -: vests in widow and children, without being set apart, when. If land occupied by a man and his family as a homestead does not exceed in quantity and value what the law allows for that purpose, the homestead estate conferred by the statute will vest in his wife and children immediately upon his death, without being set apart by commissioners. 3. --- : EFFECT OF ADMINISTRATOR’S SALE ON HOMESTEAD RIGHT: burden of proof. An administrator’s sale will not divest the homestead right of the widow and minor children of the decedent, unless it is made to pay debts contracted before the filing of the deed under which they claim. The burden of proving that it was so made rests upon one denying their right. 4. Estoppel. There is no estoppel unless the action of the party asserting it was influenced by something either done or said by the other. 5. Suit by next Eriend to Infant Plaintiff: pleading. In a suit brought by plaintiff as next friend of an infant, the defendant cannot take advantage of plaintiff’s failure to prove his appointment as next friend, unless the matter has been properly put in issue by the answer.

Appeal from Gentry Circuit Court. — Hon. S. A. Richardson^ Judge. 1. The minority of plaintiffs Lula and Joel, and the appointment of a next friend by the Gentry circuit court, is alleged in the petition and denied in the answer, and there is no proof upon the subject. No authority, therefore, has been shown for the prosecution of this suit in their behalf. 2. The widow is estopped from claiming a homestead. She stood by without asserting her claim and saw Marsh purchase at a sale by her husband’s administrator for a price, which, together with a sum paid for her dower right, was the full value of the land, and saw him and those claiming under him, occupy for nearly the period of the statute of limitations and make valuable improvements upon the land. Gragg v. Gragg, 65 Mo. 348. 3. The introduction of the administrator’s deed showed title out of plaintiffs and a complete defense to the action. The deed was evidence of the recitals therein made, and among them, that the court ordered the sale. “ The court (probate) has an undoubted right to ascertain and declare the extent of the homestead,” (Brown v. Brown, 68 Mo. 393,) and, of course, whether there was a homestead, and if so, whether there were debts of decedent contracted prior to the acquisition of the homestead for which it was necessary to sell it. The court would not have had jurisdiction to order the sale of an acknowledged homestead. To take jurisdiction of the order, the probate court must have found the jurisdictional facts upon which its authority to make it depended, viz : 1st, That there was not other property, real or personal, sufficient to pay the debts: 2nd, That the debts to pay which the sale was ordered, were contracted prior to the acquisition of the homestead. Defendants were not required to go back of the administrator’s deed. Presumptions will be indulged in favor of jurisdiction to make the order; every hypothesis should be assumed to uphold it. Prima facie, then, the sale was ordered to pay pre-contracted debts. Johnson v. Beazley, 65 Mo. 250. The deed showed title out of iffs, and the burden was on them to avoid it. Swan v. Stephens, 99 Mass. 8. Howe v. McGivern, 25 Wis. 580. 1. The premises in controversy, being owned in fee simple by N. Thomas Rogers, and being occupied and used by him, up to the time of his death, on his decease passed to and vested in fee simple in his widow and minor children ; such estate to continue in the minor children until they attain their majority, respectively. Wag. Stat., p. 698, § 5; Skouten v. Wood, 57 Mo. 380; Gragg v. Gragg, 65 Mo. 343 ; Day v. Adprns, 42 Yt. 510; Simonds v. Powers, 28 Yt. 354; Davis v.-Andrews, 30 Yt. 678; Keyes v. Hill, 30 Yt. 759; Doane v. Doane, 33 Yt. 652; McGlary v. Bizby, 36 Yt. 257. 2. The setting apart of the homestead by commissioners to the claimant thereof, is not a condition precedent to the vesting of the homestead in such claimant. Wag. Stat., p. 697, §§ 2, 5, 9, 10, 11; Parks v. Reilly, 5 Allen 77 ; Vogler v. Montgomery, 54 Mo. 577., A sale of the homestead, except in the mode permitted by the statute, is absolutely void. Deffelizv. Pico, 46 Cal. 289 ; Dunn v. Tozer,. 10 Cal. 167 ; Green v. Marks, 25 111. 221; Kendall v. Glark, 10 Cal. 17 ; Williams v. Young, 17 Cal. 403 ; Barton v. Drake, 21 Minn. 299 ; s. c., 2 Cent. Law Jour. 308. To make such sale valid, it must be shown affirmatively by those claiming under it that the homestead was sold for debts contracted before the homestead right attached, {Howe u. McGivern, 25 Wis. 525,) which was not done by defendants in this case. 3. Under the homestead law, the homestead descends to and vests in the widow and children, upon the death of the husband, and forms no part of the estate to be administered by the probate court. If it be clearly within the limits, in extent and value, as provided in the act, then it is not necessary for the probate court to appoint commissioners as provided in section 5, and in that case such court has nothing whatever to clo with the homestead. Carter v. Randolph, 47 Texas 879; Estate of Tompkins, 12 Cal. 114; Estate of James, 28 Oal. 416; O’Doeherty v. Mc-Grloin, 25 Texas 72; Deltzer v. Scheuster, 37 III. 301; Cannon v. Bonner, 38 Texas 487; Sloan v. Nance, 45 Ga. 310; Blue v. Blue, 38 111. 10. Under the doctrine of Vocjler v. Montgomery, 54 Mo. 577, if the homestead exceeded the limitations in value and quantity, as provided in section 1, a sale of it before appraisers had set apart the homestead, would be void. With much greater reason, then, would a sale of it be void, if it were sold without the intervention of commissioners when it was clearly within the limits specified in section 1, in quantity and value. 4. There is nothing to estop Mrs. Rogers. The sale of the administrator was not her act, nor done by her direction or consent. Marsh did not buy the premises of the administrator on the faith of any admission or promise made by her. Hence, one ingredient of an estoppel is lacking. Taylor v. Zepp-, 14 Mo. 482; Bigelow on Estoppel, (2 Ed.) 345. The sale of her dower interest was made March 8th, 1869. The administrator’s sale took place June 7th, 1869. They were, therefore, distinct transactions, in nowise connected with each other, so far as the evidence shows. If she sold her dower interest in the premises to Marsh, under a mistake as to what was her interest in the same, she is not estopped from afterward claiming the fee. Thompson v. Renoe, 12 Mo. 157; Gragg v. Gragg, 65 Mo. 343. Having repurchased her dower interest, she is in precisely the same position as that she occupied before the sale of her dower interest. 5. No act of the widow could prejudice the rights of the minor plaintiffs. Harkins v. Arnold, 46 Ga. 656 ; Blue v. Blue, 38 111. 10 ; Dunton v. Woodbury, 24 Iowa 74; Moore v. Dunning, 29 111. 130.