Tiser v. McCain, 74 So. 660

Tiser v. McCain

74 So. 660 | Miss. | 1917

Ethkidge, J.,

delivered the opinion of the court.

C. D. McCain died intestate in Sunflower county, Miss., seised and possessed of one hundred and sixty acres of land which was occupied by him at the time of his death as a homestead. Shortly after his death his widow moved off the premises and into another county where her father lived, and J. E. McCain, one of the defendants who had administered on the estate of C. D. McCain, undertook to lease the premises in question as administrator for a term of .five years. Some time during the year of the death of the deceased the widow' returned to the premises and took up her residence thereon. The complainants filed a bill in chancery court for partition in August, 1913, in which the widow and other of the heirs were made defendants, stating that the widow' had abandoned the homestead by moving away, and also setting up that she had agreed, shortly after the time of the death of her husband, to a partition of the homestead. The widow was made defendant, and answered with the other defendants, claiming that she was entitled to use and occupy the homestead during her widowhood, and that she was unmarried and did not have any other property or homestead. The complainants introduced the father of Joe Tiser and some other witnesses, who testified that she, at the *784time of the death of the husband, stated that she could not live on the premises, and that she never expected to live on the premises, and had expressed a willingness to have the property divided. It is also shown in proof that J. E. McCain was an adult who lived off of the homestead, and that Joe McCain, a minor son, was at the time in college. There was no written agreement with reference to a partition and no state of facts showing that there was any consideration for any agreement to waive the widow’s right, nor any element of estoppel by which any party had been mislead to his injury in dealing with the property. Section 1657, Code of 1906, provides that the exempt property shall, on the death of the husband or wife owning it, descend to the survivor of them and the children or grandchildren of the decedent as tenants in common, the children and grandchildren to take the place of their deceased parent, who would, if living, have been heir to the property, and provides that where the surviving husband or wife shall own a place of residence equal in value to the homestead of the decedent and the deceased husband or wife have not surviving children or grandchildren by last marriage, but have children or grandchildren of a former marriage, in such ease the homestead shall descend to the surviving children and grandchildren by such former marriage. There is no pretense here that the widow had another homestead or property equal in value to the homestead of the deceased. Section 1659 of the Code reads as follows :

“Where a decedent leaves a widow to whom, with others, his exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during her widowhood, as long as it is occupied or used by the widow, unless she consent.”

This section has heretofore been interpreted as requiring a liberal construction in favor of widow’s rights. See Dickerson v. Leslie, 94 Miss. 627, 47 So. 659, and Moody v. Moody, 86 Miss. 323, 38 So. 322. Giv*785ing the statute a liberal construction for the purpose for which it was enacted, we think it manifest that the partition suit in this case cannot be maintained. The object of the statute was to provide a home and' a means of support for the widow to prevent her becoming a public charge or becoming a wanderer on the face of the earth without means of livelihood or place of abode, except such as might be offered her by others. The words “or used,” following the words “so long as it is occupied,” clearly intend that it is not necessary for the property to be physically occupied, but, so long as the income of the property is used for the support of the widow, whether she be residing upon the property or not that the property cannot be partitioned without her consent. There are two methods of partition in this state, one by written agreement where the parties are all adults, and the other by proceeding under statute in the chancery court; and, until one of these methods has been used and the property divided, the widow is not bound by a consent not obtained for a valuable consideration, but at any time may withdraw her consent, provided some element of estoppel does not intervene. The circumstances under which the alleged consent was obtained in this case was not only without valuable consideration, but was obtained under such circumstances as it would be impossible to hold her to such alleged consent without doing violence to the public policy founded on the statute. The record shows that the parties began to discuss this question with the widow before the burial of the deceased after his death and at a time when she was overwhelmed with grief and had not had time or opportunity of considering the question and of investigating her rights.

In addition to this we think the possession of the tenant must be treated as her possession of the other heirs. At the time the administrator undertook to lease the place as administrator, he was an heir, but had absolutely no authority as administrator to make a lease, *786and the lease made as administrator, being void for this reason, can only be treated as a valid lease from the heirs as such. Certainly a tenant in possession by an arrangement with one of the heirs would be treated as holding possession for all of the heirs, so the property did not, at any time cease to be used by the widow within the meaning of the statute. The chancellor evidently had this view, and the judgment is affirmed.

Affirmed.