Barnett v. Barnett , 215 Ill. App. 17 ( 1919 )

Mr. Justice Gridley

delivered the opinion of the court.

In the matter of the estate of Eichard Barnett, deceased, an order was entered in the Probate Court of Cook county on May 19, 1917, approving the appraisers’ childrens’ award of $600 to Gussie Barnett, Emily Barnett and Sarah Barnett. From this order Eichard Barnett, Jr., prayed and perfected an appeal to the Circuit Court of Cook county. On April 23, 1918, the cause was heard before the Circuit Court without a jury, resulting in a finding and judgment approving said award of $600 and entering judgment against appellant for costs, from which judgment this appeal is taken.

Section 77 of the Act in regard to the administration of estates (J. & A. f[ 126) provides in part as follows:

“When the person’ dying is, at the time of his or her death, a housekeeper, the head of a family, and leaves no widow or surviving husband, there shall be allowed to the children of the deceased, residing with him or her at the time of his or her death (including all males under eighteen years of age, and all females), the same amount of property, and money * * * as is allowed to the widow for herself and children by this act, with the same right of selection of chattel property at its appraised value. * * * ”

The deceased departed this life while in a hospital on November 6, 1916. He was a widower. The appellees are female children of the deceased and at the time of his death were all of legal age. George S. Barnett, a son, was appointed the administrator of the estate. Appellant is also a son of the deceased.

Counsel for appellant contends that the Circuit Court erred in entering the judgment because (1) the deceased, at the time of his death, was not “a housekeeper, the head of a family,” and (2) the appellees were not residing with him at the time of his death.

In Bouvier’s Law Dictionary the word “housekeeper” is defined as “one who occupies a house.” In the Century Dictionary the word is defined as “one who occupies a house with his family, a householder.” In Bouvier’s Law Dictionary the phrase “head of a family” is defined to mean a “householder, one who provides for a family.” In Brokaw v. Ogle, 170 Ill. 115-126, it is said: “The ordinary signification, however, of a householder is, that such a person is the head of the family, upon whom the other members are dependent. The family, within the meaning of the Homestead law, consists of those members of the household who are dependent upon -the householder for support, or to whom the householder owes some duty.”

It was disclosed from the evidence, in substance, that deceased at the time of his death was, and had been for some time prior thereto, the owner of two lots known respectively as 2041 and 2043 Burling street, Chicago; that each of these lots was improved by separate flat buildings; that Gussie Barnett lived in the first flat of the building known as 2041 Burling street and “had the management and control of the house”; that George S. Barnett and Richard Barnett, her brothers, and Emily Barnett and Sarah Barnett, her sisters, lived with G-ussie Barnett; that Ida Schulte, another daughter of the deceased, lived in one of the fiats or houses at 2043 Burling street; that prior to Christmas Day, 1915, the deceased occupied a room in the basement of the building known as 2041 Burling street and took his meals generally with Gussie Barnett in her flat; that there was no inside stairway connecting said flat with said basement; that Gussie Barnett paid deceased no rent for said flat, he giving her the rent for his board; that about Christmas Day, 1915, nearly a year before his decease, he took up his abode with his daughter, Ida Schulte, at 2043 Burling street, and there slept and boarded until taken to the hospital in September, 1916; that he did not again sleep at 2041 Burling street, and that while living with Ida Schulte he “gave her the rent for his board at $12 per month.”

From the facts disclosed in this record we do not think that the deceased, at the time of his death, was •“a housekeeper, the head of a family,” or that appellees, to whom the award was allowed, were children “residing with him,” and we are of the opinion that the judgment should be reversed.

Reversed with finding of facts.

Finding of facts. We find, as ultimate facts in this case, that the deceased at the time of his death was not a housekeeper, the head of a family, and that at said time the appellees, Gussie Barnett, Emily Barnett, and Sarah Barnett, his children, were not residing with him.