96 Tenn. 185 | Tenn. | 1896
This is a creditor’s bill, filed in the County Court of Lincoln County against the widow and children, as well as the personal representative, of John Maddox, deceased, for the purpose of subjecting to the satisfaction of complainant’s debts a certain tract of land, specifically described in the bill. There was a demurrer interposed in behalf of defendants, which was sustained by the Court, and the bill dismissed. Complainants appealed, and have assigned errors.
The allegations of the bill necessary to be noticed are, that the intestate, John Maddox, departed this life in Lincoln County, Tennessee, about the year 1881, seized of the tract of land mentioned in the bill; that, during his lifetime, this land was allotted him as a homestead, and upon his death, his widow, Eliza Maddox, and his minor children, continued to occupy it as a homestead until the year 1892, when the said Eliza Maddox abandoned said homestead, and with her minor children removed to the State of Texas. It is charged in the bill that said Eliza Maddox, widow of said John Maddox, deceased, is now a citizen of Texas, and that her minor children are domiciled with her in said State.
It is further alleged in the bill that the de
There was a demurrer filed by the guardian ad litem on behalf of the minor defendants, in which three assignments are made, to wit: (1) That the bill shows upon its face that more than seven years
The first ground of demurrer is based upon § 3483 (M. & V.) Code, which provides, viz.: “But all actions against the personal representatives of a decedent for demands against such decedent shall be brought within seven years after his death, notwithstanding any disability existing, otherwise they will be barred forever.” The present bill was not filed until November, 1894, while the death of John Maddox, as therein alleged, occurred prior to 1881. As stated by this Court in Henderson v. Tipton, 88 Tenn., 258, this statute embodied in §§ 3119, 3483 (M. & V.) Code, is one of positive prescription, and not only bars the remedy, but extinguishes the right; that it runs against everybody, including the
The second ground of demurrer is that there can be no forfeiture or abandonment of' the homestead right as to the minor children of said intestate. Counsel, in support of this ground of demurrer, cite the case of Farrow v. Farrow, 13 Lea, 120. In that case it appeared that the intestate had lived for many years with his wife and children on the land on which homestead was claimed. His wife died, but he continued to live on the land with their children until his death. Between ten and twenty days after his death, J. J. Farrow, who had become the guardian of the minor children, removed them to the State of Mississippi, where he resided, and where he and they have since lived. The guardian rented out the land in Tennessee on which the homestead is claimed, for the benefit of his wards. A bill was filed in Tennessee by the administrator of the estate of the father for • the administration of the estate as insolvent, and the sale of this realty to pay debts. The only question presented for adjudication was whether the children, having removed with their guardian to the State of Mississippi, were entitled to homestead in this land in Tennessee. It was held by a divided Court that infant children, .occupying the homestead
The case now being decided does not fall within the principle announced in Farrow v. Farrow. In that case the father and mother had both died, and the infant’s right to the homestead exemption had attached. In this case the homestead right of the children had not attached, and was subsidiary to that of their mother, who is still living.
As stated by Judge Cooper in the 13 Lea case, viz.: ‘ ‘ The Legislature, recognizing the right of the parents of children to change their residence and domicile, provided that the homestead exemption should only inure to the benefit of the minor children occupying the same with their surviving parent at his or her decease.” Of course, since the Act of 1879, occupancy is not essential to the right of a' homestead, but, during the life of a parent, the infant’s right of homestead is contingent upon the parent’s right. The right of a parent to homestead is dependent upon citizenship or residence in this State, and is lost when a domicile is acquired in a foreign or sister State. .Nonresidents are not entitled to the
The third ground of demurrer is that this homestead, having been set apart to John Maddox in his lifetime, upon his death it passed to his wife during her natural life, for her own use and benefit, and that of her family who reside with her, and, upon her death, the same will pass to said minor children of the said John Maddox free from his debts. This demurrer is based upon § 2943 (M. & V.) Code, and the claim is that the children will take the fee in this land discharged of the debts of their father. This contention is wholly erroneous. It has been repeatedly held by this Court that the homestead is a mere right of occupancy, and the remainder or reversion therein may be sold, subject to the homestead. 7 Pick., 403; 2 Lea, 579; 16 Lea, 371.
The judgment of the County Judge sustaining the demurrer is reversed, and the cause will be remanded for further proceedings.