Solomon v. Solomon

• Decision Date: 20 November 1939
• Docket Number: 33853
• Citation: 187 Miss. 22,192 So. 10
• Court: Mississippi Supreme Court
• Parties: SOLOMON et al. v. SOLOMON

192 So. 10

187 Miss. 22

SOLOMON et al. v. SOLOMON

No. 33853

Supreme Court of Mississippi

November 20, 1939

APPEAL from the chancery court of Bolivar county HON. R. E. JACKSON Chancellor.

Suit by Theodore O. Solomon and others against Mrs. Estella Jenkins Solomon. Decree for defendant, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Alexander Sparkman & Pace, of Cleveland, for appellant.

Section 1412 of the Mississippi Code of 1930 does not prevent cotenants who are not descendants or heirs of the deceased owner, their cotenant, of an undivided interest in property from partitioning property as against the widow of deceased cotenant.

Section 1412, Code of 1930; Lackey v. Harrington, 162 Miss. 512; 29 C. J., Homesteads, secs. 167 and 417; Thorn v. Thorn, 14 Iowa 54, 81 Am. Dec. 451; Peets v. Wright (S. C.), 109 S.E. 649; Clements v. Long, 51 Tex. 150; Masillon Engine Co. v. Barrow (Texas), 231 S.W. 368; McGrath v. Sinclair, 55 Miss. 89; Lewis v. White, 69 Miss. 352.

Section 1412 of Code should be construed in connection with Section 2920 of Code.

Construction of Section 1412 by lower court violates Section 14 of Article 3 of the Constitution of the State of Mississippi and also Article V of Amendments to the Constitution of the United States of America.

Shands, Elmore, Hallam & Causey, of Cleveland, for appellee.

Facts are not in dispute which bring the case within Section 1412.

Until 1932 this court was not called upon to construe this section in any case except where the deceased husband owned the entire interest in the lands which descended from him to his widow and children and in such cases the partition was sought against the widow by either a child or a vendee of a child, or a person in privity with a child. Every announcement of the court with reference to and upon Section 1412 is confined to cases where the foregoing situation and facts existed as are the cases cited in this portion of this brief. The cases cited are attempts at partition between the widow and children or their vendees. No situation and none similar in fact or principle to the case at bar was presented to the court for consideration or decision prior to 1932 when the court spoke in the Lackey case, 162 Miss. 512. In view of the above, we call the court's attention to the following cases, which we believe clearly and fully state the intent and purpose of the legislature in the original enactment and the consistent re-enactment of what is now said Section 1412:

Moody v. Moody, 86 Miss. 323; Dickerson v. Leslie, 94 Miss. 627; Tyser v. McCain, 113 Miss. 776; Wright v. Coleman, 137 Miss. 969; Lackey v. Harrington, 162 Miss. 512.

Appellants concede and rightfully so that Joe Solomon, deceased, husband and father of appellees, had a homestead in his undivided one-half interest in the property involved herein. Having such a homestead it constituted exempt property belonging to the said decedent.

Appellees say that the case of Lackey v. Harrington, 162 Miss. 512, decided by Division B of this court on January 18, 1932, and in which a suggestion of error was overruled on February 1, 1932 is squarely in point for the appellees and by the decision in which case the decree of the lower court should be affirmed.

Howie v. Panola-Quitman Drainage District et al., 168 Miss. 387; O'Donnell v. McIntyre, 23 N.E. 455.

Mrs. Solomon has met every requirement of the statute as to being a widow and as to living upon and using the property as her home. She has no other home. Joe Solomon's share of the property was unquestionably his exempt property. In this state of the case, if it is immaterial under the Lackey case from whence came the title Of the co-tenants, where the widow otherwise complies with the statute, then Mrs. Solomon is entitled to use and occupy this property as long as she remains a widow free from any partition thereof against her consent.

The complainants admit that Joe Solomon had and acquired a homestead interest in his one-half of the property during the lifetime of J. M. Solomon. Joe Solomon married and he with his wife, Mrs. Solomon, and their minor children, lived in, used and occupied the property of J. M. Solomon before his death. Appellants had no right, title, or interest in this property until the death of J. M. Solomon. Upon the death of J. M. Solomon complainants' rights arose. Joe Solomon's interest had already become fixed and his one-half interest therein was property exempt to him as his homestead. The rights of complainants to the property were acquired by them subject to those of Joe Solomon. Upon the death of Joe Solomon, under the facts in this record, Mrs. Solomon has the right to hold his exempt property, to-wit, at least his one-half interest, free from partition or sale from partition during her widowhood and as long as she occupies or uses it, unless she consent to the partition. The statute is fully complied with.

OPINION

Smith, C. J.

J. M Solomon and his son, J. L. Solomon, owned a house and lot in Cleveland, Mississippi, each owning a one-half interest therein. J. L. Solomon was married and lived in this house. J. M. Solomon died in 1930, leaving as his heirs J. L. Solomon and four other children. J. L. Solomon and his family continued to occupy the house until 1933, when he died, and his widow and children continued thereafter to occupy it as their home. The four surviving children of J. M. Solomon sued the widow and children of J. L. Solomon for a partition of the...