43 Miss. 532 | Miss. | 1871
This ease comes to this court on a construction of the
Under article 172 Code, p. 469, the widow was entitled to all the exempt personal property of her deceased husband; although she owned separate property, equal to what would be her portion of her husband’s real and personal estate. Coleman v. Brooke, 37 Miss., 71. In the latter case of Whitley v. Stephenson, 38 Miss. Rep., 115, it was said that this property vests, by operation of law, in the widow, divested of all claims of creditors, and in the same manner as the land vests in the heir. It is really no part of the decedent’s estate, for the purposes of administration. In Wally v. Wally, 41 Miss. Rep., 658, the act of 1860, was construed. This act, sect. 1, p. 375, so amends the art. 172 of chap. 60 of the Code, as to “ provide that the widow and children of any deceased person shall be allowed to retain and hold to their use all the estate exempt from execution,” etc. It was held in plain conformity to the words and intent of this amendment, “ that the widow takes jointly with the children,” and that her right was in no wise affected by the circumstance, that she had separate property at the time of the husband’s death.
The title of the act of the 28th of November, 1865, is “ an act to amend the exemption laws of this state.” The 7th section, as if out of abundant caution, declares “ that this act shall be construed as amendatory of the exemption laws, and not intended to repeal said laws, otherwise than the amendments in this act shall supersede the former acts herein revised and amended.” The 3d section provides that “ the property shall descend to the widow as the head of the family, during her widowhood, for the use and benefit of herself and children, and in the event of her marriage or death, to descend in like manner as other property descends.” This idea of provision for the children seems to have grown in influence and importance in the legislative mind.
Originally, as in the Code, the widow took all the exempted property. By the act of 1860, the children are made
The benefit and use are joint and common to the widow and children so long as she continues a widow. But on her death or marriage, the property descends to the heirs of the deceased husband. She is entitled, with the children, to the occupancy and use of the exempted lands and moveable property. Her estate, which was a joint fee simple, with the children, by the act of 1860, has, and the last amendment in 1865, been reduced to a life estate, to be terminated or directed'by marriage. If, as the record shows in this case, the exempted property has been converted into money, the question is, what interest do the widow and children respectively have in the fund? We are of the opinion that the widow is entitled to a child’s part of the fund, to be used and enjoyed by her during life or widowhood, which, upon the happening of either event, goes to the children.
The decision of the probate court was predicated on the construction of the act that the widow was entitled to the whole fund during widowhood or life. We reverse the decree and remand the cause, with directions to the chancery court to pay to the widow, Jane Osborne, a child’s part of the fund in court, to be used during her widowhood or life, upon her giving bond, with good and sufficient sureties, that her executors or administrators, in case of her death, or herself, in case of her marriage, will refund to the children of the deceased husband, their respective portions or shares thereof.