| Miss. | Mar 15, 1908
delivered the opinion of the court.
This is a controversy as to whether the piece of land claimed as a homestead was or was not a homestead. If it was not, then undoubtedly it was liable in this proceeding to be partited among the heirs of W. B. Brown. Mrs. Gilmore was one of these heirs. She files a bill for partition, and avers that the homestead was in the village of Lafayette Springs, and occupied as such by W. B. Brown when he died. She avers this village property was abandoned by the widow, one of the appellees, Mrs. Sarah E. Brown. Complainant prays alternatively that-, if it be held that the widow is entitled to hold this village property, then the decree will order partition of the country property, of which it is averred the widow is in possession. The learned chancellor below, on the facts, found that the one hundred and sixty acres of the country tract as the real homestead had never been abandoned as such by him, but that he and his family had taken up their abode in the village of Lafayette Springs only temporarily, and that no abandonment was ever
We think it sufficiently shown that there never was any purpose on the part of the deceased to abandon his country homestead, and that his only object in moving to the village was to furnish school facilities to his children and that his design was at the start, and continuously was, to return to his country home as soon as his object was attained. He supervised his homestead, had always one of his family there, and never ceased to assert that it was his homestead. The difficulty in this case is that Brown, while residing at Lafayette Springs, became a qualified voter there and was elected to and held the office of alderman of that village at a time during the two or three years that he had his actual residence there. It will be noted that by Code 1906, § 2146, real estate exemption is given to every citizen of this state, being a householder and having a family entitling him to hold the exemption, being the land and buildings owned and occupied as a residence by him, not to exceed one hundred and sixty acres, with a different exemption in cities, towns and villages. The universal rule as to exemptions is a liberal construction in favor of the citizen head of a family. It would never be held that a householder in the country, who left his homestead temporarily in order to educate his children and with the purpose always to return to his country home, would forfeit his exemption. Being in the village and with such purpose, it has been often held that his voting in village elections and holding office there would not necessarily be an abandonment of the original homestead. Corey v. Schuster, 44 Neb., 269" court="Neb." date_filed="1895-03-05" href="https://app.midpage.ai/document/corey-v-schuster-hingston--co-6649788?utm_source=webapp" opinion_id="6649788">44 Neb., 269, 62 N. W., 470; Mallard v. First National Bank, 40 Neb., 784" court="Neb." date_filed="1894-06-05" href="https://app.midpage.ai/document/mallard-v-first-national-bank-6649138?utm_source=webapp" opinion_id="6649138">40 Neb., 784, 59 N. W., 511; Dennis v. Omaha Nat. Bank, 19 Neb., 675" court="Neb." date_filed="1886-01-15" href="https://app.midpage.ai/document/dennis-v-omaha-national-bank-6644862?utm_source=webapp" opinion_id="6644862">19 Neb., 675, 28 N. W., 512; Benbow v. Boyer, 89 Iowa, 494" court="Iowa" date_filed="1893-10-17" href="https://app.midpage.ai/document/benbow-v-boyer-7106004?utm_source=webapp" opinion_id="7106004">89 Iowa, 494, 56 N. W., 544; Porter v. Chapman, 65 Cal., 365" court="Cal." date_filed="1884-06-28" href="https://app.midpage.ai/document/porter-v-chapman-5441712?utm_source=webapp" opinion_id="5441712">65 Cal., 365, 4 Pac., 237; Campbell v. Potter, 29
All these cases hold that the proof of these facts, while competent and very persuasive evidence, is not conclusive of the abandonment of a homestead, but is to be considered in determining whether the homestead was left temporarily or permanently, which is the matter to be determined at last. In 15 Am. & Eng. Enc. of Law (2d ed.), 647, in speaking of this matter, the text says: “But this presumption is not conclusive. If the attendant circumstances show that the new home was intended to be used only as a temporay residence, there will be no abandonment.” And in note 4 to the text are cited cases from Arkansas and Texas. In 21 Cyc. 601, the text says: “If the debtor removes from the home property for the purpose of obtaining better educational facilities for his children, his absence is not regarded as an abandonment, if the removal is not to be permanent” — citing divers cases from Kentucky, a case from Missouri, divers cases from Texas, one case from Wisconsin, and also citing the case of Campbell v. Adair, 45 Miss., 170" court="Miss." date_filed="1871-10-15" href="https://app.midpage.ai/document/campbell-v-adair-7984038?utm_source=webapp" opinion_id="7984038">45 Miss., 170. We adopt the reasoning and conclusion of these cases. They are to be differentiated from Thompson v. Tillotson, 56 Miss., 36" court="Miss." date_filed="1878-04-15" href="https://app.midpage.ai/document/thompson-lampkin--co-v-tillotson-7985117?utm_source=webapp" opinion_id="7985117">56 Miss., 36, where the homesteader removed from his place in January, 1875, and “had not returned, nor, so far as the record indicates, did he propose to return to it, when the final decree passed in 1877.” In short, in that case there was no definite purpose of returning to the homestead.
Affirmed.