Miers v. Miers

• Decision Date: 23 March 1931
• Docket Number: 29309
• Citation: 133 So. 133,160 Miss. 746
• Court: Mississippi Supreme Court
• Parties: MIERS v. MIERS

133 So. 133

160 Miss. 746

MIERS v. MIERS

No. 29309

Supreme Court of Mississippi

March 23, 1931

Division B

1 HOMESTEAD.

"Family," in eyes of homestead law, continues to exist so long as widow lives and remains widow (Code 1930, sections 1412, 1766).

2 STATUTES.

Unless letter and context of law otherwise require, statutes must be so construed that operation will be consistent and practical.

3. EXECUTORS AND ADMINISTRATORS.

Homestead is not subject to sale to pay year's allowance to widow (Code 1930, sections 1643, 1654, 1656, 1664, 1667).

4 HOMESTEAD.

Widow, being entitled to use and occupancy of homestead, was entitled to rents thereof, and would so continue during her life or widowhood unless she elected or consented otherwise (Code 1930, sections 1412, 1766).

HON. N. R. SLEDGE, Chancellor.

APPEAL from chancery court of Montgomery county, HON. N. R. SLEDGE, Chancellor.

Proceedings between Thomas L. Miers, executor, and Mrs. L. E. Miers. From the judgment, the former appeals. Affirmed in part, and in part reversed.

Affirmed in part and reversed in part.

W. T. Knox and V. D. Rowe, both of Winona, for appellant.

To sell the homestead to pay a year's support for the widow and children would amount to destroying the homestead in this cause, for the court has ordered, as will be seen by the final decree, that the homestead involved in this cause be sold subject to the homestead right of the widow. This would mean that no person other than the widow would purchase at such sale because no person other than the widow would be able to get possession of the property until after her death, or until her widowhood ceased.

The statute is plain to the effect that the year's allowance is to be satisfied out of the personal estate of the deceased person which is not exempt.

The allowance is a right to which the widow is entitled under the statutes, to be paid out of the funds or property in the hands of the administrator, at all events, and whatever may be the condition of the estate, whether solvent or insolvent, testate or intestate.

Gilmer v. Gilmer, 151 Miss. 23, 117 So. 371; Section 1664, Code of 1930.

The rent of the land accruing during the year of the death of the decedent, whether he died testate or intestate, is an asset and stands chargeable with all the just debts and funeral expenses of the deceased and the expenses of settling the estate, and the court below erred in requiring said rent to be paid to the widow for that year.

Section 1643, Code of 1930; Gordon v. James, 86 Miss. 719.

The homestead is not an asset and all claims against the estate whatever kind or nature must be paid out of the assets belonging to the estate. But the homestead is not an asset. The homestead cannot be taken into account in administering the estate of a deceased person. So far as the administration of a deceased person is concerned, it is as though the homestead property never belonged to the deceased.

Hudnall v. Hudnall, 82 Neb. 587, 118 N.W. 331.

Under our statute the homestead descends to the widow and children free from claims of creditors and all liabilities of the estate, except those specifically mentioned in our statute.

Code 1930, section 1410 and 1411.

J. W. Conger, of Winona, for appellee.

The widow is entitled to a year's allowance out of the effects of her deceased husband whether he died testate or intestate, solvent or insolvent; and the widow is not entitled to the exempt property of her deceased husband, who has devised it by his last will and testament, unless she renounce the will; and the allowance for a year's support stands upon "different ground" and is not on the basis of other claims; is a peculiarly special statutory" allowance and interferes with no right of disposition which the testator could be presumed to make of his property, and therefore, from the peculiar nature of the allowance, it is held to be, and is, a privileged claim upon the estate, whether he has left a will or not.

Turner v. Turner, 30 Miss. 428; Nash v. Young, 31 Miss. 134; Norris v. Callahan, 59 Miss. 142; Osburn v. Sims, 62 Miss. 433; Kelley v. Alred, 65 Miss. 498; First National Bank v. Donald, 112 Miss. 681, 73 So. 723.

Where a man took a homestead and died leaving his wife the only beneficiary, his children having become of age, she could take a year's support out of the homestead.

Cook case, 138 Ga. 88, 74 S.E. 795; 50 Ga. 597; 85 Ga. 731, 11 S.E. 845; 105 Ga. 54, 31 S.E. 122; 118 Ga. 569, 45 S.E. 420.

The chancellor's decree of sale in this case of this land subject to the right of the homestead will not interfere with, affect, destroy or have any bearing upon the widow's use thereof as a homestead. The chancellor specifically preserved for the widow her homestead rights by ordering a sale of the body of the land, subject to the homestead rights of the widow.

Where the property is purely homestead property and there is no money or thing from which the widow's allowance can come except the property that is homestead property then the remainder that will be owned in fee by other parties after the death of the widow or after she married, may be sold to pay up the allowance.

Tittel Case, 139 Cal. 149, 72 P. 909.

Argued orally by W. T. Knox and V. D. Rowe, for appellant, and by J. W. Conger, for appellee.

OPINION

Griffith, J.

Appellee's husband, A. J. Miers, a resident of Montgomery county, died on January 27, 1929, leaving a homestead consisting of eighty acres of land of the value of one thousand five hundred seventy-five dollars. Decedent had no personal property of any character, nor any other real estate. There survived him the widow, now more than sixty years of age, and five children, all adults. The widow applied for, and was granted, a year's allowance in the sum of four hundred dollars, and there being no money or other property out of which to pay the allowance, it was ordered by the court that the lands constituting the homestead should be sold to make said allowance, the said sale to be subject, however, to the homestead rights of the widow in said lands; that is to say, that the right of the widow to the occupancy or use of said homestead land during her life or widowhood should not be affected by said sale.

The question is whether the homestead may be sold to pay the year's allowance. It is a new question in this state and, so far as we can find, has been squarely decided in only one case in other states, namely, in Hadsall v. Hadsall, 82 Neb. 587, 118 N.W. 331, 333, wherein the answer was in the negative. In that case and under statutes apparently similar to ours the court said: "Under our statutes the homestead cannot be taken into account in administering the estate of a deceased person. So far as administration of a decedent's estate is concerned, it is as though the homestead property never belonged to the decedent."

Appellee relies on the case In re Estate of Tittel, 139 Cal 149, 72 P. 909, but that case is distinguished by the court in the Nebraska case, supra...