Byars v. Gholson
| Decision Date | 25 April 1927 |
| Docket Number | 26461 |
| Citation | 147 Miss. 460,112 So. 578 |
| Court | Mississippi Supreme Court |
| Parties | BYARS v. GHOLSON et al. [*] |
Suggestion of Error Overruled May 16, 1927.
APPEAL from chancery court of Marshall county HON. N. R. SLEDGE Chancellor.
Application by Alice Byars against Harris Gholson, executor of Washington Byars, deceased, and others, for a year's support from deceased's estate. From a decree for defendants plaintiff appeals. Affirmed.
Decree affirmed.
Smith & Smith, for appellant.
Appellant takes the position in this cause that at the time of the death of Washington Byars, she was his lawful, wedded wife and that in his will he so recognized his obligations to her as such that he left her a child's share in his estate. We further submit that the litigation for divorce between Alice Byars, appellant, and Washington Byars, testator, was a mutual litigation and that both parties thereto were seeking a divorce from the other and that the court denied a divorce to either thereby declaring that one was as much to blame as the other and that neither was at greater fault than the other. This mutual litigation terminated in the summer of 1925 and we find in the winter of 1925 that Washington Byars filed his own suit against appellant for divorce, thereby denying to her the right to return to his home and, in effect, driving her away therefrom so that when he died in the spring of 1926, he was aggressively seeking to destroy her status as his wife. It comes with poor grace that his executor should seek to deny his widow the support provided by law after he himself had granted her a share of his estate.
The executor has no right to contest her application for the year's support and as no one else is contesting it, the court is urged summarily to reject the intervention by the executor into this matter and render a judgment here for the allowance sought. Morgan v. Morgan, 36 Miss. 348; Whitehead v. Kirk, 106 Miss. 706, 64 So. 658; Turner v. Turner, 30 Miss. 428; McCrary v. Robinson, 12 S. & M. 318.
In the instant case it was the husband who in the last analysis was the active agency for the disruption of the union and the potential cause of the continued separation, when he became the complainant in the divorce suit which was pending at his death, and in that suit appellant would have been allowed support money, pendente lite, at least. Bank v. Donald, 112 Miss. 681.
In this connection it is interesting to study the history of the mutations of the statute law in this state on this subject: Code of 1880, section 1279; Code of 1892, section 1877; Code of 1906, section 2052; Hemingway's Code, section 1717.
In the section as it now stands it is manifest that the legislature intended for the year's support to be given a widow and such children as were being supported by the testator at his death, naturally excluding from this beneficial provision any allowance to children who had reached their majority or who were emancipated because under the law the parent owed no duty to support such children.
This is remedial legislation and should be liberally construed in favor of the allowance to the widow. Statutes setting apart specific property to the widow on the death of her husband are entitled to liberal construction for her benefit and apply where there is a will as well as in cases of intestacy. Re Estate of Michael L. Breen, 94 Kan. 474, 146 P. 1147, 4 A. L. R. 238; Re Coreils Estate, 83 So. 13, 145 La. 788; Veeder v. Veeder, 195 Iowa 587, 192 N.W. 409, 29 A. L. R. 191. The Veeder case and the instant case have a striking similarity.
Lester G. Fant, for appellant.
The statute in Mississippi governs the allowance of a year's support to the widow of a deceased person. Section 1717, Hemingway's Code. We call the court's special attention to the description of the widow and children: ". . . his widow and children who were being supported by him, or for the widow if there be no such children, or for such children if there be no widow . . ." Clearly, the intention of the statute was to provide for the family, so there would be no break in the family living.
Alice Byars, not coming under the description that the statute lays down, would not be entitled to a year's support and it would be a dereliction of the duty of the executor if he did not appear and contest the claim. 11 R. C. L., paragraph 270, page 241. It would appear that this statement of Ruling Case Law is borne out by the polity in Mississippi because our statute uses the language, ". . . who were being supported by him." See Barber v. Ellis, 68 Miss. 172; 93 Am. Dec. 683; Odiorne's Appeal, 54 Penn. 175; Estate of Noah, 73 Cal. 583, 2 A. S. R. 829; Murray v. Cargill, 32 Me. 516; Nye's Appeal, 12 A. S. R. 873.
The statute in Mississippi is a complete answer to the learned brief of appellant's counsel and this case should be affirmed.
Argued orally by L. A. Smith, Jr., and L. A. Smith, Sr., for appellant, and Lester G. Fant, for appellee.
The appellant and Washington Byars were married and separated prior to his death. A divorce suit was filed by Washington Byars against appellant, Alice Byars, in the chancery court of Marshall county, Miss. She answered, denying the allegations of the bill, and setting up, by way of a cross-bill, allegations for divorce on her own behalf, and also for the allowance of temporary and permanent alimony. The chancellor heard the case on bill, answer, and proof, and denied the relief on the bill and also on the cross-bill from which decree Alice Byars appellant, appealed to this court, where the judgment was affirmed on May 11, 1925. 104 So. 111. Thereafter, Washington Byars filed a second bill alleging desertion, which bill was answered by appellant, denying the allegations thereof, but not seeking any affirmative relief. While this suit was pending, before trial thereof, Washington Byars departed his life estate, providing in his will that Alice Byars should have a child's share in his estate. After...
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Estes v. Estes (In re Estate of Estes)
...her having no interest in their father's estate. As they saw it, Young's acts were akin to those of the wife in Byars v. Gholson, 147 Miss. 460, 465, 112 So. 578, 578–79 (1927), in which the Mississippi Supreme Court held that a voluntarily estranged wife was not entitled to a widow's allow......