dissenting:
The opinion adopted by the majority effectively invalidates an important statutory provision of the homestead act. The result reached is unwarranted and unsupported and I accordingly respectfully dissent.
The majority point out that the homestead act of 1851, by failing to exclude the homestead from descent and devise, placed it within the power of those acquiring interests by such means to destroy the homestead of the surviving spouse. The act of 1872 wrought a change in this regard by extending the exemption (by the amendment the exemption was enlarged to an estate) to protection from interests acquired by descent and devise. This meant that thereafter persons who became co-tenants by descent or devise could not deprive the surviving spouse of the estate of homestead. The majority note that this history is set forth in Powell v. Powell.
By the 1965 enactment the legislature added to section 1 of the act: “This section is not applicable as between joint tenants or tenants in common but it is applicable as to any creditors of such persons.” The majority has found this sentence to be a mere codification of prior law, placing reliance on Heldt v. Heldt, La Placa v. La Placa, and Petrulionis v. Deduk. These cases are not at all apt. Heldt and La Placa dealt with husbands and wives who were joint tenants of the premises in question and occupied by both as their homestead. They noted that the husband, being the householder, was presently entitled to the homestead and the wife was not presently entitled to homestead. The court held, simply, that the husband’s right to homestead would be continued in his separate parcel if the premises were divided in partition, or the monetary equivalent of homestead paid from his one-half of the proceeds should the land be sold. In neither of the cases was the interest of the co-tenant seeking partition acquired by descent or devise, and both of the cases were decided prior to the 1965 amendment to the act.
The Petrulionis case does contain the statement that the 1965 amendment was a codification of the prior law. However, it is plainly evident that the Petrulionis case was erroneously decided. It placed sole reliance for its result upon Hertz v. Buchmann, 177 Ill. 553, 53 N.E. 67, notwithstanding the fact that the decision in that case was expressly predicated upon an interpretation of the homestead act as it existed prior to the amendment of 1872. See Kales, Homestead Exemption Laws §34, at 37 (1902). Accordingly, it cannot be authority for the decision in Petrulionis. Petrulionis erroneously compared the 1965 amendment to the pre-1872 act, rather than to the act as it existed following the 1872 amendment. Moreover, the Petrulionis case is squarely at odds with Powell v. Powell.
When the entire wording of the sentence added by the 1965 amendment is considered, together with its background, it will be seen that it is far from a codification of prior law. It constitutes a radical change in the right to assert the right of homestead against co-tenants, but at the same time it preserves the right to assert the claim of homestead against creditors of co-tenants as that right existed prior to the 1965 amendment.
This interpretation of the 1965 amendment is in keeping with the statement of the supreme court that the estate of homestead is essentially an exemption from the claims of third parties. (Heldt v. Heldt; La Placa v. La Placa.) In a case decided subsequent to the 1965 amendment, this policy statement was enlarged to:
“The [homestead] exemption which we have been discussing is actually created as a protection against third-party creditors, and is not an interest to be recognized as between joint tenants or tenants in common (Ill. Rev. Stat. 1973, ch. 52, §1). We, therefore, tend to question whether the homestead estate or exemption is even a cognizable interest to be bandied about between husband and wife, when they are equal owners of the property.” Gottemoller v. Gottemoller, 37 Ill. App. 3d 689, 693, 346 N.E.2d 393, 396.
The majority took note of the fact that Berg v. Berg, 45 Ill. App. 3d 422, 359 N.E.2d 892, and Ball v. Ball, 27 Ill. App. 3d 678, 326 N.E.2d 782, have reached a contrary conclusion regarding the effect of the 1965 amendment. Those cases reached their result by stating that the intent and meaning of the amendment was plain. With that I agree. The majority, while rejecting Berg and Ball, adopted the holding of Anderson v. Anderson, 42 Ill. App. 3d 781, 356 N.E.2d 788. However, Anderson is of doubtful worth as authority for, as pointed out in Berg, it relied on several pre-1965 cases and never even considered the 1965 amendment.
The result of the Berg and Ball cases is correct and I would follow them by affirming the judgment of the trial court.