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MATTER OF HENDRICKS

June 18, 1969

IN THE MATTER OF JAMES R. HENDRICKS AND IDA BELLE HENDRICKS, BANKRUPTS.


The opinion of the court was delivered by: Robert D. Morgan, District Judge:

DECISION AND ORDER ON REVIEW OF REFEREE'S DECISION

This matter comes on to be heard upon the petition of Barry M. Barash, Trustee of the captioned bankrupt estates, for review of a decision issued in said cases by Stephen J. Covey, Referee in Bankruptcy of this Court, on February 27, 1969, and said Referee's Certificate of Review filed pursuant to said petition on March 7, 1969. The Court has considered such certificate and scholarly briefs submitted on behalf of said trustee, as well as on behalf of the bankrupts, has heard the arguments of counsel, and is fully advised in the premises.

The Referee's writen decision clearly and succinctly sets forth the pertinent facts and the rationale of his decision as follows:

STATEMENT OF FACT

"IDA BELLE HENDRICKS and JAMES R. HENDRICKS, husband and wife were adjudicated bankrupts on October 15, 1968. On the date of bankruptcy, the bankrupts owned the following described property as joint tenants and not as tenants in common and resided in it together as husband and wife with their children:

  Residence in Victoria, Illinois — All of Lots 5 and 6
  in Block 4, in the Becker, Berry, Pease and Hedstrom
  Addition to the Village of Victoria, situated in the
  NE¼ of Section 13, Township 12 N, Range 3 E of the
  4th Principal Meridian, Knox County, Illinois.

"Said property is subject to a mortgage in favor of the Farmers and Mechanics Bank, of Galesburg, Illinois, and the value of the real estate exceeds the amount of the mortgage by $1800.00. In their bankruptcy schedules filed herein, both bankrupts claimed a $5,000.00 homestead exemption in said real estate pursuant to Chapter 52, Section 1 of the Illinois Revised Statutes. On December 4, 1968, BARRY M. BARASH was appointed Trustee in both cases and on December 6, 1968, he filed the instant petition in both cases asking that this Court determine the proper allowance and allocation of the homestead exemption.

OPINION

"Chapter 52, Section 1, of the Illinois Revised Statutes provides as follows:

  `1. AMOUNT 1. Every householder having a family,
  shall be entitled to an estate of homestead, to the
  extent in value of $5,000, in the farm, or lot of
  land and buildings thereon, owned or rightly
  possessed, by lease or otherwise, and occupied by him
  or her as a residence; and such homestead, and all
  right and title therein, shall be exempt from
  attachment, judgment, levy or execution, sale for the
  payment of his debts, or other purposes, and from the
  laws of conveyance, descent and devise, except as
  hereinafter provided. As amended by act approved
  August 13, 1965. L. 1965 — H.B. No. 1075. Effective
  Jan. 1, 1966.'

"Section 70 of the Bankruptcy Act provides in part as follows:

  `70. TITLE TO PROPERTY. a. The Trustee of the estate
  of a bankrupt and his successor or successors, if
  any, upon his or their appointment and
  qualifications, shall in turn be vested by operation
  of law with the title of the bankrupt as of the date
  of the filing of the petition initiating a proceeding
  under this Act, except insofar as it is to property
  which is held to be exempt, to all of the following
  kinds of property wherever located. * * *'

"It has been clearly established in Illinois that where husband and wife own property as joint tenants and reside together on the premises that the husband is the householder contemplated by the Statute and he alone is entitled to the homestead exemption. See Johnson v. Muntz, 364 Illinois 482 [4 N.E.2d 826] where the Court says:

  `* * * If the husband is living and residing with his
  family he is the householder contemplated by the
  statute and the homestead estate is vested in him.
  (Taylor v. Taylor, 223 Ill. 423 [79 N.E. 139]; Brokaw
  v. Ogle, 170 id. 115 [48 N.E. 394].) Two separate
  homestead estates ...

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