Kelly v. Alred

65 Miss. 495 | Miss. | 1888

Arnold, C. J.,

delivered the opinion of the Court.

A married woman enjoys as large freedom in this State as a man in regard to the testamentary disposition of her property She may dispose of her estate, real and personal, by last will and testament, in the same manner as if she was not married. Code, Section 1169. When the title to the homestead exempted from execution or attachment is in the husband, no conveyance, mortgage, deed of trust, or other incumbrance upon it by him is valid or binding unless signed by his wife, if he is married and living with his wife. Code, Section 1258. And where the homestead is the separate property of the wife, no conveyance of it made by her is valid or binding, unless signed and acknowledged by her husband, if living with her. Code, Section 1260.

The restrictions imposed by these sections of the Code on the husband and wife as to the alienation and incumbrance of the homestead, do not limit or affect the right of either as owner to dispose of it by devise. By Section 1211 of the Code the homestead and property exempted by law from execution and attachment descends on the death of the husband or wife owning it, to the survivor of them, if there be, as in this case, no children of the decedent; but this section operates only in case of the intestacy of the owner óf such property. Norris v. Callahan, 59 Miss., 140; Osburn v. Sims, 62 Id., 429.

It was not intended to interfere with the right of the owner to dispose of such property in the same manner and with the same effect that he or she might dispose of other real estate by will.

When there has been no testamentary disposition of the homestead by the owner, the surviving husband or wife, as • the case may be, takes it by descent; but the right of the survivor is not absolute, but dependent on the owner dying intestate as to the homestead.

This is the interpretation which has been uniformly placed on our statutes on the subject. Our present Code does not change the rule, and it applies whether the homestead is owned, by the husband or the wife. Osburn v. Sims, 62 Miss., 429, and authorities therein cited.

The remedy of the husband or wife who is dissatisfied with the provision made for him or her in the will of the other, is to renounce such provision and claim a distributive share of the estate, whether it includes the homestead or other property, as provided by Section 1172 of the Code; or if no such provision is made in the will, to claim such distributive share' under Sections 1173 and 1174 of the Code, without renunciation. Turner v. Turner, 30 Miss., 428; Nash v. Young, 31 Id., 134.

Reversed.