Todd v. Todd

• Decision Date: 11 June 1934
• Docket Number: 31306
• Citation: Todd v. Todd, 155 So. 343, 170 Miss. 589 (Miss. 1934)
• Court: Mississippi Supreme Court
• Parties: TODD et al. v. TODD et al

155 So. 343

170 Miss. 589

TODD et al. v. TODD et al

No. 31306

Supreme Court of Mississippi

June 11, 1934

Division B

WILLS.

Will devising homestead as particularly described by reference to deed by which land was conveyed to testator held to dispose of all property within description of deed owned by testator at his death, notwithstanding that certain buildings on property described were leased for business purposes.

HON. V J. STRICKER, Chancellor.

APPEAL from chancery court of Hinds countyHON. V. J. STRICKER Chancellor.

Suit by A. M. Todd, Jr., and others, against Mrs. Maude Todd and others, for the construction of the will of A. M. Todd, Sr. deceased.From an adverse decree, complainants appeal.Affirmed.

Affirmed.

Alexander, Alexander & Satterfield, of Jackson, for appellants.

The will itself is definite and the intention of the testator is so clearly expressed by the language used that there is no room for an attempt to vary the actual legal meaning of the will.

Wallace v. Wallace, 114 Miss. 591, 75 So. 449;Ehrman v. Hoskins,67 Miss. 192;Harvey v. Johnson, 111 Miss. 566, 71 So. 824.

The word "homestead" has a fixed and definite meaning and it does not include property which is a part of the original lot but which has been dedicated to business purposes.

McKeough's Estate v. McKeough, 69 Vt. 34, 37 A. T. L. 275;29 C. J. 830;13 R. C. L. 594-595, 598.

Occupancy for the purpose of use in connection with the home and residence is essential to invest the property with the character of a homestead.

Where there is no occupancy for the purpose stated such property ceases to retain its character as a homestead.

Partee v. Stewart, 50 Miss. 717; Coke on Littleton, 4, 6; Thompson on Homesteads, section 100;Ackley v. Chamberlain,16 Cal. 181;Todd v. Gordy,28 La. Ann. 666;Acker v. Trueland, 56 Miss. 30;70 Am. Dec. 348, note.

The leasing of buildings to others not servants of the lessor thereby severs the property so leased from the lessor's homestead even though the building included in the lease is on the same lot and is not divided from the homestead property by a fence or street.

Kaster v. Williams, 41 Ala. 302;Kurtz v. Brusch,13 Iowa 371;Hoitt v. Webb,36 N.H. 158;Wade v. Wade,7 Baxt. 612;Wilson v. Cochran,31 Tex. 677;True v. Morrill,28 Vt. 672;Scheoffen v. Landauer,19 N.W. 95;Greeley v. Scott, 2 Woods, 657;Casselman v. Packard, 16 Wis. 114, 82 Am. Dec. 710.

A homestead in law means the home place or place of a home and is designated as a shelter over the homestead roof and not as a mere investment in real estate or the rents and profits derived therefrom.

Lyon v. Harden, 29 So. 777, 129 Ala. 643;Norris v. Kidd,28 Ark. 483;Dickman v. Birk Hauser,16 Neb. 686, 21 N.W. 396;Jaffery v. McGough,7 So. 333;Semmes v. Wheatley, 7 So. 430.

The will being unambiguous and the words used having a fixed legal significance, the status of the property at the time the will went into effect determines the property included in the devise.

Page on Wills, par. 1422; Thompson on Construction of Wills, 26 and 31.

Watkins & Avery, of Jackson, for appellees.

The devise to Mrs. Maude Todd was specific and as to such devise the will speaks from the date of its execution.

White v. White, 53 S.E. 371, 73 S.C. 261;In re Woodworth's Estate,31 Cal. 595;Wilts v. Wilts,130 N.W. 905;Mathis v. Mathis,18 N. J. Law, 59;Edds v. Edds, 282 S.W. 638.

The authorities are uniform that while a will cannot pass title to property until the death of the testator and therefore does not take effect until the date of the testator's death, that as to specific devise the will speaks from the date of its execution.

40 Cyc. 1424;Construction of Wills by Thompson, page 35;28 R. C. L. 235, par. 196;Underhill on Wills, sec. 15, page 22.

This honorable court has repeatedly laid down the rule that in determining the intention of the testator evidence may be introduced showing the circumstances and conditions surrounding the testator at the time of the execution of the will.

Keeley v. Adams, 149 Miss. 201, 115 So. 344;Chrisman v. Bryant,66 So. 779, 108 Miss. 311, 318;Watson v. Blackwood,50 Miss. 15;Lesche v. Cutrer,135 Miss. 469, 99 So. 136;Noel v. Jones,216 S.W. 98, 185 Ky. 835;Fuller v. Fuller,146 N.E. 174, 315 Ill. 214;Haward v. Hayward, 11 A. 53, 95 Conn. 122.

The technical definition of the word "homestead" under the exemption statutes has no bearing on the will.

McKeough's Estate v. McKeough, 69 Vt. 34;Lusby v. Cobb,80 Miss. 715;International Harvester Co. v. Bye, 169 N.W. 385.

The erection of the filling station and pig stand on the lots in controversy after the execution of the will did not in anywise prevent title to that property from vesting in Mrs. Maude Todd under the will.

Section 3, Thompson on Construction of Wills.

While it is not the rule in a few jurisdictions, the weight of authority is to the effect that a change, subsequent to the making of the will, in the form of property devised or bequeathed, does not prevent the operation of the provisions of the will and the property, in its changed form, passes to the devisee or legatee.

40 Cyc. 1046.

Argued orally by John Satterfield, for appellants, and by Ralph B. Avery, for appellees.

OPINION

Ethridge, P. J.

The appellants filed a bill in chancery to have the will of A. M. Todd, Sr., father of appellants and husband of Mrs. Maude Todd, construed.The will, which was made an exhibit to the bill, reads as follows:

"I A. M. Todd, of Fondren, Mississippi, of legal age and of sound disposing mind and memory, so hereby make this my last will and testament, expressly revoking all other and former wills and testaments.

"1st. I give, devise and bequeath unto my wife, Mrs. Maude Todd, our homestead at Fondren, Mississippi.This property is more particularly described by reference to a deed from Isham Cade, dated April 29, 1896, and recorded in Book 25, at page 364.Also I give, devise and bequeath unto my wife, Mrs. Maude Todd, Lots seven (7) and eight (8) in Block 'G' Ridgelawn Subdivision; it being intended to also will to my wife the same property which was conveyed to me by Mrs. Jessie Sims Lorenz on January 9, 1922, by deed recorded in Book 138, at page 137.And I also will and bequeath unto my wife, all of the household furniture, furnishings and equipment in our homestead.

"2nd.The remainder of my property I give, devise and bequeath, in equal shares to my seven (7) children, Charles Todd, A. M. Todd, Jr., Mrs. Cecile Todd Cummings, Mrs. May Todd Williams, David C. Todd and Thomas B. Todd.

"3rd I appoint my wife, Mrs. Maude Todd, as executrix of this my last will and testament, waiving the...