APPEAL from the Circuit Court of Jasper County; the Hon. BILL
J. SLATER, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 21, 1978.
Defendant, Anna Chapman, appeals from that portion of a decree in partition entered by the circuit court of Jasper County which denied her claim of homestead. The property in question was owned by the defendant Chapman's husband, Everett Chapman, and occupied by them as their marital residence for over 26 years. On July 9, 1976, Everett Chapman died leaving defendant Anna Chapman, his wife, and six children of a previous marriage as his heirs. Since that time defendant Chapman has continued to occupy said premises as her home.
On January 18, 1977, Anna Chapman renounced the decedent's will and elected to take her statutory share of the estate. Thereafter his children by the previous marriage filed a partition suit. The court on May 18, 1977, ordered partition of the premises in question as well as two other parcels of land not involved in this appeal. Anna Chapman was granted an undivided one-third interest in the premises with an undivided one-ninth interest being awarded to each of the decedent's six children. The trial court expressly denied defendant's application for homestead rights in these premises and this appeal ensued.
Defendant claims that pursuant to sections 1 and 2 of the homestead exemption act (Ill. Rev. Stat. 1975, ch. 52, pars. 1, 2), she is entitled as a matter of right to have the homestead set aside as to the premises owned by her husband and occupied by them as the marital residence. Plaintiffs contend that since defendant Chapman's interest in the premises is that of a tenant in common, the 1965 amendment to the homestead act, a portion of which is underlined below, prevents the defendant from claiming homestead as against the plaintiffs. The act in pertinent part reads:
§ 1. Amount Application of section.
Every householder having a family shall be entitled to an estate of homestead to the extent in value of $10,000, 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 or as provided in Section 234 of the Probate Act, as heretofore or hereafter amended. This section is not applicable as between joint tenants or tenants in common but it is applicable as to any creditors of such persons.
§ 2. Continuance of exemption after death or desertion.
Such exemption shall continue after the death of such householder, for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead, * * *." (Emphasis added.) Ill. Rev. Stat. 1975, ch. 52, par. 1-2.
In accordance with the stipulation of the parties the trial court specifically found that the deceased was a householder at the time of his death and that defendant Anna Chapman continued to occupy the homestead following her husband's death.
1-3 The homestead exemption provided by section 1 of the homestead act (Ill. Rev. Stat. 1975, ch. 52, par. 1) may be claimed when three criteria have been satisfied. A person must be (1) a householder (2) with a family and (3) occupying the land as a residence. A householder is one who owns a dwelling house capable of being occupied as a dwelling. (Rock v. Haas, 110 Ill. 528.) A family is a person or persons dependent upon the householder for support. (First National Bank & Trust Co. v. Sandifer, 121 Ill. App.2d 479, 258 N.E.2d 35.) The land must be actually occupied as a dwelling. (Morris Investment Co. v. Skeldon, 399 Ill. 506, 78 N.E.2d 504.) Once these qualifications have been satisfied, the homestead is exempt from third-party claims by attachment or execution and is also exempt from the laws of conveyance, descent and devise. The homestead is exempt up to the value of $10,000.
Section 1 was amended in 1965 to include the following sentence: "This section is not applicable as between joint tenants or tenants in common but it is applicable as to any creditors of such persons."
Section 2 of the act provides that the homestead exemption shall continue (1) in the surviving spouse after the death of the householder, and (2) in the occupying spouse after the householder has abandoned the residence.
The appellees rely upon the 1965 amendment to uphold the trial court's denial of homestead to the surviving spouse. Anna Chapman renounced the will giving her a life estate in the property in favor of her statutory share of one-third of the fee. The six devisees under the will took the remaining two-thirds interest in fee and instituted this partition suit. Accordingly, the appellees argue, the parties hold as tenants in common and the homestead exemption is specifically denied by the statute.
4 The right of homestead is a freehold estate created by statute. It is an interest in land rather than a mere exemption. (20 Ill. L. & Prac. Homestead § 2 (1956).) The first homestead law was passed in 1851. Homestead was not exempted from the laws of descent and distribution under the 1851 law. The omission in the law of 1851 to exclude the homestead from the laws of descent and devise placed it within the power of the heirs to destroy the homestead estate of the surviving spouse by filing a suit for partition. (Turner v. Bennett, 70 Ill. 263.) The 1851 act continued in force until the act of 1872 was passed.
"The Act of 1872 made three important changes in the homestead law: (1) it changed a mere ...