Kelly v. Alred
| Decision Date | 28 May 1888 |
| Citation | 4 So. 551,65 Miss. 495 |
| Court | Mississippi Supreme Court |
| Parties | JAMES W. KELLY v. ELLISON ALRED ET AL |
APPEAL from the Circuit Court of Copiah County, HON. T. J. WHARTON Judge.
In April, 1883, Ida A. Alred and her husband, Ellison Alred lived on and occupied a certain tract of land as a homestead. The land was the property of the wife, and the husband was partially insane. In that month they moved some eighteen or twenty miles to the home of a mother of Mrs. Alred. Whether to remain permanently or only temporarily is in dispute. On May 31, 1883, Mrs. Alred died, leaving a will in which she devised the land above referred to to her brother, James W Kelly. Ellison Alred, the husband of Mrs. Ida Alred, survived her; but she left no children.
In October, 1886, James W. Kelly, claiming the land by virtue of Mrs. Alred's will, brought this action of ejectment against one Wheeler and Sylvester Alred, who were in possession of the land as tenants of Ellison Alred. Ellison Alred, as landlord, was admitted to defend.
There was judgement for the defendants, and the plaintiff appealed.
Reversed.
Miller & Conn, for the appellant.
The statute making the husband's consent necessary to the wife's disposition of her homestead, Sec. 1260, Code of 1880, is confined to a conveyance of it by her, and a will is not a conveyance, in the sense in which that word is used in the statute. Secs. 1257 and 1169 of the Code give her the right to dispose of it by will.
Harris & Dodds, for the appellees.
Sec. 1260, Code of 1880, does not permit the wife to convey the homestead unless such conveyance is also executed by the husband.
Homestead acts of other states of the Union, similar to ours, restraining the wife from alone conveying the homestead, have been construed and the Courts hold that the wife cannot devise the homestead. 1 Brettum v. Fox, 100 Mass. 234; Stewart v. Brand, 23 Iowa 481.
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 1277 of the Code the homestead and property exempted by law from execution and attachment descends on...
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Freeman v. Lide
...to take away the estate by the curtesy which, if she had died intestate, would have gone to her husband. The case of Kelly v. Aired. 65 Miss. 495, 4 South. 551, is substantially to the same effect. We quote the first two headnotes, as follows: "1. Under section 1169, Code of 1880, which pro......
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