Gavin v. Gavin

• Decision Date: 10 December 1917
• Docket Number: 19791
• Citation: 76 So. 879,116 Miss. 197
• Court: Mississippi Supreme Court
• Parties: GAVIN ET AL v. GAVIN ET AL

76 So. 879

116 Miss. 197

GAVIN ET AL v. GAVIN ET AL

No. 19791

Supreme Court of Mississippi

December 10, 1917

Division B

APPEAL from the chancery court of Noxubee county, HON. A. Y WOODWARD, Chancellor.

Bill by Nicholas Gavin and others against Rosa Gavin and others for partition and accounting.

From a decree for defendants, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Geo Richardson and Green & Green, for appellant.

Counsel contends that this proceeding is merely to obtain the use and benefit of the homestead. However, the demurrer expressly admits the allegation of the bill which sets forth that the timber had been removed and in so doing "has denuded said lands, of their greatest asset in the sale of said timber, which timber was the most valuable on said land."

Now in McKenzie v. Shows, 70 Miss. 390, it was expressly held that: "The growing trees are a part of the realty and may be, in case the lands are what are denominated timber lands in contradistinction to other lands called agricultural lands, a very valuable part of the realty. In a readily supposable case, the sale and removal of the entire forest growth would practically destroy the value of the realty. In the case at bar it is alleged in the bill, and not denied in the answer, that the lands in question would be only worth about one-half as much as they are, if the timber should be taken off."

Hence by this direct decision, if the said James Gavin had no power, without Rosa's consent, to denude the homestead of this timber and thus convert a part of the homestead to his own use, it goes without saying that those who are tenants in common, and who, at most have but the right to object to a partition could not do that which the owner in fee could not have done. This case of McKenzie v. Shows is conclusive.

We deny that the sole question in this case is the right to enjoy the land "free from rent or hire and from partition during her widowhood."

The contention turns chiefly upon the destruction of the timber and the impairment of the rights as set forth in the original brief.

We respectfully submit that admitting the right of the widow to make a selection under chapter 216 of the Laws of 1912, that no selection has been made in conformity therewith, because when such selection is made where the husband leaves a widow and children, such selection must be the joint selection of widow and children and not the selection of the widow alone.

In order to determine the rights under section 1659 and to make a selection thereunder, the property must have descended in accordance therewith.

In the case at bar we asked for a decree against the widow for property which she has already destroyed and converted. With deference, we submit that the accounting herein should be granted and the relief given, especially as the appellee, Rosa Gavin, has no right to do other than keep the property from being partitioned, which does not vest in her the power to divide it so as to take part of it and appropriate it to her own use and benefit, and let the other go.

Strong & Bush, for appellee.

The sole question to be decided in this case is whether or not the widow, Rosa Gavin, is entitled to the use and occupation of this land in question free from rent or hire and from partition during her widowhood, although her husband, Jas. Gavin, did not reside on this land at the time of his death. It is true that for the sake of the demurrer every material allegation in the bill filed in this cause had to be admitted, but regardless of these admissions about the shotgun proceedings and the wholesale cutting of timber, which allegation makes it look like this woman is a holy terror, still this whole proceeding, as shown by the pleadings, is purely and simply an attempt to partition this land by having a sale of the same and thereby defeating the very part of a law made for the welfare of a family of this kind where there are a great number of children by a former wife scattered in every direction and another set of children by the present widow who are minors and dependent upon their mother for support.

Section 1659 of the Code of 1906, is in the following words: "Exempt property not to be partitioned in certain cases." "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 consents."

Under chapter 216 of the Laws of 1912, provides for the selection of property by the widow in case a homestead has not been designated by the deceased husband during his lifetime, and it will be noted that in this act of the legislature the widow has a right to designate the property as the homestead of the decedent and not as a homestead of his widow and children, and the very purpose of this law was to give the widow and her family every right given under section 1659 of the Code of 1906, and keep down any confusion with other sections of the statute relative to exempt property.

In this case it was not essential for the widow Rosa Gavin, or other heirs at law, to make a homestead declaration for the reason that there was no other property to select from, but the chapter 216 of the Laws of 1912, is of more benefit in case the decedent dies seized of more than one hundred and sixty acres of land no homestead had ever been made in order to apprize the creditors of what land they might expect to issue execution on or apply to their debts, and certainly in the latter case if homestead is made by the widow she automatically derives the benefit and protection under section 1659 of the Code of 1906, that being the case, how in reason can there be any difference in the rights given the widow with a whole lot of land and where she has only...