Stevens v. Wilbourn

• Decision Date: 11 June 1906
• Citation: 88 Miss. 514,41 So. 66
• Court: Mississippi Supreme Court
• Parties: CLAUDIA STEVENS ET AL. v. ELLA J. WILBOURN

41 So. 66

88 Miss. 514

CLAUDIA STEVENS ET AL. v. ELLA J. WILBOURN

Supreme Court of Mississippi

June 11, 1906

April 1906

FROM the chancery court of, first district, Yallabusha county HON. JULIAN C. WILSON, Chancellor.

Mrs Stevens, the appellant, was complainant in the court below Mrs. Wilbourn, the appellee, was defendant there. From a decree in favor of defendant, complainant appealed to the supreme court.

One James M. Wilbourn died, leaving him surviving as his heirs his widow, Mrs. Ella J. Wilbourn, the appellee, and two children, Mrs. Claudia Stevens, the appellant, and Willis E Wilbourn, both of whom were children of a former marriage, and who were adults at the time of the death of their father. At the time of decedent's death he owned a homestead within the corporate limits of the village of Tillatoba, consisting of one hundred and eighty-two acres of land, worth less than $ 2,000. The other land which he left was without the corporate limits of the village, and was not adjacent to the homestead. His estate, both real and personal, was duly administered, his lands other than the homestead divided among his heirs, his widow taking her share. The homestead was occupied or used by the widow under the circumstances next to be mentioned. The appellant, Mrs. Stevens, afterwards filed the bill in this case, claiming that she was tenant in common in the homestead with the widow and her brother, and alleging that the widow had leased the homestead to tenants, and praying that a receiver be appointed to take charge of the premises, and that an accounting of all receipts and disbursements be made, and that she be awarded her share of the rents and profits. of the homestead. Mrs. Wilbourn's answer admitted that she had leased some parts of the homestead, but had reserved a room in the house for herself. She made her answer a cross-bill, and prayed an injunction against Mrs. Stevens and Willis E. Wilbourn, enjoining them from the use and occupation of any part of the homestead, and from any interference with the tenants working thereon. The injunction was granted. A motion to dissolve the injunction was made and overruled. The appellant claimed, among other things, that the homestead, although in the village, could not exceed in area one hundred and sixty acres.

Affirmed and remanded.

I. T. Blount, for appellant.

By sec. 1551 of the annotated code, lands of a decedent descend to the widow and children as tenants in common. This applies alike to all the lands.

By sec. 1553, the homestead may not be partitioned during the use or occupancy by the widow, so long as it is occupied by her, unless she consent.

The question here presented, and for the present it seems to be the only question to be considered, is the effect of these statutes on the rights of parties to this suit.

It is not contended by Mrs. Stevens that she can prevent the widow from the use and occupancy as a tenant in common with her, of her homestead rights, but her right to the exclusive use and occupancy of the homestead, whatever that may be, and to the utter exclusion of complainant, is denied and challenged, and on this question we ask a specific declaration by the court.

In Middleton v. Claughton, 77 Miss. 131 (s.c., 24 So. 963), this question being under discussion, the court had this section of law under consideration, and a casual reading of the opinion delivered in that case points to the conclusion that the court intended to decide that the widow, to the exclusion of the children, is entitled to the homestead exemption, but my contention is that this court did not intend, nor did it so declare, but that it is expressly decided that she takes as a child does, by descent, an equal share of the fee, but cannot be compelled to partition or account for the user so long as it is occupied or used by her. And in the latter part of this decision, on page 559, the opinion says: "The widow who is entitled to protection herself is left as head of a family and is as the husband was entitled to undisturbed use and occupation during her widowhood and ownership of her share."

Keeping in mind the object and purposes...