Bohn v. Bohn

Full title: BOHN v. BOHN

Court: Supreme Court of Mississippi, In Banc

Date published: Feb 23, 1942

5 So. 2d 429 (Miss. 1942)

5 So. 2d 429

Opinion

No. 34766.

January 12, 1942. Suggestion of Error Overruled February 23, 1942.

1. HOMESTEAD.

Under statute providing that on death of husband or wife, exempt property should descend to the survivor and the children and grandchildren of the decedent as tenants in common, grandchildren inheriting their deceased parent's share, and under statute providing that when exempt property descends to a widow it should not be subject to partition during her widowhood, a widow takes a child's part in the fee with the right of undisturbed possession or use of the homestead during her lifetime (Code 1930, secs. 1410, 1412).

2. TENANCY IN COMMON.

Ordinarily, tenants in common are seized by the half and by the whole, and the right of possession is in common.

3. HOMESTEAD.

Under statutes giving a decedent's widow the right of undisturbed possession or use of the homestead and prohibiting partition thereof during her widowhood, the profits or rents from the homestead may not be divided among the widow and her children (Code 1930, secs. 1410, 1412).

4. HOMESTEAD.

Under statutes giving a decedent's widow the right of undisturbed possession or use of the homestead and prohibiting partition thereof during her widowhood, widow may occupy homestead without accounting for rents, and she is entitled to any rents therefrom (Code 1930, secs. 1410, 1412).

5. HOMESTEAD.

Under statutes giving a decedent's widow the right of undisturbed possession or use of the homestead and prohibiting partition thereof during her widowhood, "undisturbed possession" must be defined, not in terms of widow's forbearance or patience, but in terms of the legal right not to be subjected to the probability or possibility of a challenged dominion (Code 1930, secs. 1410, 1412).

6. HOMESTEAD.

Under statutes giving a decedent's widow the right of undisturbed possession or use of the homestead and prohibiting partition thereof during her widowhood, widow has the right to retain the homestead as it was during decedent's lifetime, and that is true even if decedent left children surviving him (Code 1930, secs. 1410, 1412).

7. HOMESTEAD.

Under statutes giving a decedent's widow the right of undisturbed possession or use of the homestead and prohibiting partition thereof during her widowhood, widow is entitled to use or rents from homestead, and the use may not be taken by others, even the decedent's heirs, without liability to widow for the rents (Code 1930, secs. 1410, 1412).

8. HOMESTEAD.

Under statutes giving a decedent's widow the right of undisturbed possession or use of the homestead and prohibiting partition thereof during her widowhood, widow's rights are absolute, and she cannot be called on to account for the use and occupancy nor be forced to purchase the rights of her cotenants (Code 1930, secs. 1410, 1412).

9. PARTITION.

Under statutes giving a decedent's widow the right of undisturbed possession or use of the homestead and prohibiting partition thereof during her widowhood, the "partition" prohibited is not a mere record identification of the several interests in the homestead without an assertion by the coparceners of their respective rights, but it means an actual division of title with the right of possession thereunder (Code 1930, secs. 1410, 1412).

10. HOMESTEAD.

Under statutes giving a decedent's widow the right of undisturbed possession or use of the homestead and prohibiting partition thereof during her widowhood, widow's right has the attributes and incidents of a "life estate," and the other heirs are vested with a "future estate" which takes effect in possession at the termination of the preceding estate or interest (Code 1930, secs. 1410, 1412).

11. HOMESTEAD.

Under statutes giving a decedent's widow the right of undisturbed possession or use of the homestead and prohibiting partition thereof during her widowhood, the status of "cotenancy" among the widow and other heirs exists, but the usual rights under that status are made subordinate to the widow's right of use and occupancy of the homestead during her lifetime (Code 1930, secs. 1410, 1412).

12. PARTITION.

Under statutes giving a decedent's widow the right of undisturbed possession or use of the homestead and prohibiting partition thereof during her widowhood, the immunity from partition is personal to the widow and it is not extended to her grantee (Code 1930, secs. 1410, 1412).

13. HOMESTEAD.

Where decedent's adult son together with his family was in possession of entire lower floor and part of second floor of two-story homestead property, widow over 60 years of age was entitled to recover rents for that part of homestead occupied by son over her protest and was entitled to have son ejected, since under statutes a widow is entitled to the exclusive use and occupancy of the homestead during her life as against other adult heirs of the decedent (Code 1930, secs. 1410, 1412).

APPEAL from the circuit court of Harrison county, HON. L.C. CORBAN, Judge.

Gardner, Backstrom Gardner, of Gulfport, for appellant.

The first question presented for decision is whether the statute on the descent of exempt property means what its plain and unambiguous language imports. Section 1410 of the Code of 1930 provides that: "The property, real and personal, exempted by law from sale under execution or attachment, shall, on the death of the husband or wife owning it, descend to the survivor of them, and the children and grandchildren of the decedent, as tenants in common, grandchildren inheriting their deceased parent's share." This language is plain and unambiguous and needs no interpretation. It is its own best interpreter. The exempt real property descends as other property. There can be no mistake as to this for the language of the statute is not susceptible of a different interpretation. The statute goes further and provides that if there be no children or grandchildren and no survivor of the children and grandchildren of the deceased owner, then it shall descend to the surviving wife or husband as the case may be.

It cannot be doubted that the estate thus created by the aforesaid statute is one of tenancy in common.

See, also, Collette v. Long, 179 Miss. 650, 176 So. 528; Tiser v. McCain, 113 Miss. 776, 74 So. 660.

An estate of tenancy in common needs no explanation. The right of possession of each cotenant is co-equal measured by their several interests therein. One cotenant cannot oust another cotenant from the possession of the common property for he has no superior right to that of his cotenant. So long as one cotenant does not occupy more than his share of the common property no claim for rents can accrue, since each cotenant is entitled to the joint occupancy of the common property to the extent of his interest therein.

"Tenants in common" are such as hold by several and distinct titles, but by unity of possession, because none knoweth his own severalty, and therefore they all occupy promiscuously.

2 Bl. Comm. 191; Gould v. Subdistrict No. 3, 8 Minn. 427, 431 (Gil 382, 384); Coster v. Lorillard (N.Y.), 14 Wend. 336; Manhattan Real Estate Building Ass'n v. Cudlipp, 80 N.Y. Supp. 993, 996, 80 App. Div. 532; Taylor v. Millard, 28 N.Y. St. Rep. 694, 695; Taylor v. Millard, 23 N.E. 376, 377, 118 N.Y. 244, 6 L.R.A. 667; Griswold v. Johnson, 5 Conn. 363, 365; Silloway v. Brown, 94 Mass. (12 Allen) 30, 36; Gittings v. Worthington, 67 Md. 139, 9 A. 228, 233; O'Bryan v. Brown (Tenn.), 48 S.W. 315, 316; Tilton v. Vail (N.Y.), 42 Hun. 638.

The real distinguishing feature of tenancy in common is unity of possession. Tenancy implies the right of possession, and the phrase, "in common," means with others. There cannot, therefore, be any such thing as tenancy in common where one of the tenants is denied the right of possession. This is forcefully set forth in Sullivan v. Sullivan (N.Y.), 4 Hun. 198, wherein it is stated the quantities of the estate may be different, the shares may be unequal, the modes of acquisition of title may be unlike, and the only unity between them be that of possession, and still it is a tenancy in common.

See, also, Martin v. Bowie, 37 S.C. 102, 15 S.E. 736; Carver v. Fennimore, 116 Ind. 236, 19 N.E. 103; Gage v. Gage, 66 N.H. 282, 29 A. 543, 28 L.R.A. 829; Hunter v. State, 60 Ark. 312, 30 S.W. 42; Betts v. Betts (N.Y.), 4 Abb. N.C. 317; Deal v. State, 14 Ga. App. 121, 80 S.E. 537; Anderson v. Lucky, 18 Ga. App. 479, 89 S.E. 631; Talley v. Drumheller, 135 Va. 186, 115 S.E. 517; Tresher v. McElroy, 90 Fla. 372, 79 So. 80; Smith v. Barradaile, 30 N.M. 62, 227 P. 602; 7 R.C.L. 875.

The foregoing authorities make it plain that without the right of possession in each of the joint owners, there cannot be a tenancy in common. The right of possession is an essential element without which there can be no tenancy in common. Since, on the death of the husband, his widow and children become tenants in common of the homestead, they each have the right of possession thereof, and neither can eject the other therefrom.

This brings us to a discussion of Section 1412 of the Code of 1930, which reads as follows: "Where a decedent leaves a widow to whom, with others, his exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during her widowhood, as long as it is occupied or used by the widow, unless she consents."

This statute is couched in plain and unambiguous language and is likewise its own best interpreter. Since, as above shown, the widow and children of a decedent inherit the homestead as tenants in common in equal proportions, this statute means only that the widow cannot be denied her right of possession during her widowhood, which, as above shown, must be enjoyed in common with the other co-owners. It does not convert her cotenancy into a life estate or an estate terminable at her will. The homestead cannot be partited or sold for a division of the proceeds during her widowhood, but, until the widow consents it must remain as the ancestral home of the widow and children of the decedent.

Compare Medford v. Mathis, 176 Miss. 188, 168 So. 607; Tiser v. McCain, 113 Miss. 776, 74 So. 660; Lackey v. Harrington, 162 Miss. 512, 139 So. 313; Moody v. Moody, 86 Miss. 323, 38 So. 322; Middleton v. Claughton, 77 Miss. 131, 24 So. 963; Martin v. Martin, 84 Miss. 553, 36 So. 523.

From the foregoing authorities we deduce the following conclusions. The widow and children, or the descendants of children of a decedent, are tenants in common of the homestead of an intestate deceased husband and father; the statute so provides, and this court has consistently so held. Since there cannot be a tenancy without possession or the right of possession, the widow and children or the descendants of such children, of a deceased husband and father are each entitled to the possession of their share of the homestead. The homestead cannot be partited or sold for a division of the proceeds so long as it is occupied or used by the widow without her consent, unless she re-marries or sells or otherwise relinquishes possession of the homestead. The widow's right to the exclusive use, occupancy, income, rents, issues, and profits of the homestead are paramount only so long as she remains the head of the family as her husband was and devotes and uses the same for the maintenance of the family. In the event she no longer maintains the family home, her rights are not paramount to those of any of the other cotenants except in the matter of the partition or a sale for partition of the homestead. When the home is no longer maintained as a home for herself and cotenants, each cotenant has an equal right with the widow to the possession thereof provided their shares are equal. None of the cotenants can be called upon to account to any of the other cotenants, including the widow, where the home is no longer maintained, as in the case at bar, unless such cotenant has occupied more than his share. None of the cotenants can be ousted from the possession of the common property since the right of possession of each is co-equal.

J.F. Galloway, of Gulfport, for appellant.

Appellee's theory of this case is, that on account of being the surviving widow of the said H.N. Bohn, she has an exclusive right to the use of the property in question, as against the children of the said H.N. Bohn. That was the law of this state prior to Section 1277, Code of 1880, but, under that act, the life estate, which the surviving spouse had under the law, was entirely canceled and in lieu thereof she was made a tenant in common with an equal part with the surviving children. In 1880, and up to 1892, there was no provision in the law providing for the exclusive use of the homestead property by the surviving spouse, or providing that neither the surviving spouse nor the other heirs could have a partition, or sale, of the homestead, without the consent of the surviving spouse.

By the Code of 1892, Section 1277 of the Code of 1880 was brought forward as the law in substantially the same form, so far as this case is concerned, as Section 1551. In addition to that, Section 1553 of the Code of 1892, a new enactment, provided that the exempt property, real or personal, of the decedent, should not be subject to partition or sale during the life or widowhood, without her consent.

Since the adoption of Section 1277 of the Code of 1880, which is Section 1551 of the Code of 1892, and Section 1553 of the Code of 1892, the question here submitted to the court has never been before the court. There have been various and sundry cases involving partitions of the homestead or exempt property by the cotenants, but the decision of the court was controlled by Section 1553 of the Code of 1892.

It is the first time that the titular head of the family, the surviving spouse, has attempted to advance such a proposition as is now here submitted to the court.

There is no provision in the statutes now in force which give to the surviving widow any right in the property, except as a cotenant with a child's part or interest. Her undivided interest, however, was safeguarded from partition and sale by Section 1553, aforesaid, which prevented any such efforts by any of the other cotenants. When the surviving spouse was given a life estate, but no interest in the property other than that, there was no necessity for a prohibition of sale or partition. The purpose of the statute was therefore clearly to preserve the homestead for the use of the family, including the surviving spouse, and not to give to the surviving spouse an opportunity, as is now here attempted, to destroy the welfare of the children, or heir.

Compare Chapter 43, Code of 1848; Chapter 22, page 467, Code of 1857; Section 1281, Code of 1871.

Mize, Thompson Mize and Jo Drake Arrington, all of Gulfport, for appellee.

The appellee is entitled to the undisturbed use and occupancy of the homestead during her widowhood.

Moody v. Moody, 86 Miss. 323, 38 So. 322; Stevens v. Wilbourn, 88 Miss. 514, 41 So. 66; Dickerson v. Leslie, 94 Miss. 627, 47 So. 659; Talley v. Talley, 108 Miss. 84, 66 So. 328; Williams v. Williams, 111 Miss. 129, 71 So. 300; Tiser v. McCain, 113 Miss. 776, 74 So. 660; Wright v. Coleman, 137 Miss. 699, 102 So. 774; Miers v. Miers, 160 Miss. 746, 133 So. 133; Lackey v. Harrington et al., 162 Miss. 512, 139 So. 313; Medford v. Mathis, 176 Miss. 188, 168 So. 607; Collette v. Long, 179 Miss. 650, 176 So. 528; Martin v. Martin, 84 Miss. 553, 36 So. 523; Miss. Code of 1930, Secs. 1410, 1912.

The appellant contends in his brief that he and the appellee are tenants in common. The appellee admits that proposition, and, in view of Section 1410, Code of 1930, the proposition would appear to be indisputable.

However, Section 1412, Code of 1930, supervenes, with the inevitable legal consequence that upon the decedent's widow there is conferred, in addition to her rights as a cotenant in common with other heirs, the additional right "to the undisturbed use and occupancy of the homestead during her widowhood." That statute, therefore, qualifies Section 1410, which declares, in case "the surviving wife has no separate place of residence equal in value to the homestead of the decedent," that the homestead shall descend to the survivor and the children as tenants in common; it qualifies Section 1410 by establishing the surviving widow as the head of the family in the place of the husband, if the children are minors, and if they are adults not dependent upon the decedent or members of the latter's family at his death, then the enjoyment of their rights as cotenants is postponed so long as the widow remains a widow and occupies or uses the homestead. The adult cotenants have a vested interest in the homestead without the present right of enjoyment.

Medford v. Mathis, supra.

If Section 1412 does not have the effect of securing to the widow in the case at bar a right of use and occupancy superior and paramount to the right of the appellant as a cotenant, then it is difficult to explain the purpose of its enactment.

Argued orally by J.F. Galloway, for appellant, and by Jo Drake Arrington, for appellee.

Alexander, J., delivered the opinion of the court.

Appellee is the widow and appellant is the son of H.N. Bohn, deceased. The widow filed her bill to compel an accounting for rents upon such part of the homestead as had been occupied, over her protest, by appellant. The suit was transferred to the circuit court, and the declaration sought reasonable rental of such portion so occupied, and ejectment. A peremptory instruction upon the issue of liability was granted to the widow, and judgment for rents and for ejectment was entered upon the verdict of the jury.

The question immediately presented is whether a widow over sixty years of age is entitled to the exclusive use and occupancy of the homestead during her life as against other adult heirs of the deceased owner thereof. Appellant's contention, carefully elaborated, that the widow and children inherit in equal parts the homestead property as tenants in common, needs no support. The narrow inquiry is the extent of the widow's rights therein during her life, or otherwise expressed, the right of the other heirs during this period.

Since the Code of 1892 and under Code of 1930, Sections 1410 and 1412, the widow takes a child's part in the fee with the right of undisturbed possession or use of the homestead during her lifetime. This change did not restrict, but enlarged the rights of the widow. What then is the extent of her rights in the homestead during her life? This inquiry necessarily involves an examination of the rights of the other heirs as tenants in common. Ordinarily, tenants in common are seized per my et per tout and the right of possession is in common. Yet, if the heirs were permitted to exercise their rights of possession as against the homestead, the widow could never enjoy its "undisturbed use and possession." If each was allowed to receive his share of the rents and profits during the life of the widow, she would receive no more than a child's part and Section 1412 would be rendered futile. If the homestead cannot be partitioned during the widow's life, it would be inconsistent to allow the profits or rents from the homestead to be so divided. Martin v. Martin, 84 Miss. 553, 36 So. 523; Moody v. Moody, 86 Miss. 323, 38 So. 322; Stevens v. Wilbourn, 88 Miss. 514, 41 So. 66; Miers v. Miers, 160 Miss. 746, 133 So. 133.

To what extent must it be undisturbed? In the instant case, involving a two-story homestead property, the appellant, together with his own family, is in possession of the entire lower floor and part of the second floor. Assuming the existence of equal rights of possession and the presence of adult children, each could make equal claims, attaining results which would pass beyond absurdity into cruelty. Were the home a modest one-room hovel, three children could, by demanding each his respective corner, relegate the widow to the remaining and least desirable nook, there to ponder the havoc wrought through the mockery of a statute which, despite its beneficent assurances, had been found inadequate to stem the tide of dismemberment. To continue, in the face of this section, to define a common interest in terms of a common right of possession and use is to denude the section of any purpose or efficacy. The plain truth is that the incidents of cotenancy involve disadvantages to which the law was unwilling for the widow to be exposed. Such conclusion is reached not by a strained, but by a literal, construction of the benefits and burdens of cotenancy, which appellants insist should still be applied. In adjudging its incompatibility with the purpose of the section, it should be sufficient to recall that where tenancies in common exist "none knoweth his own severalty and therefore they all occupy promiscuously." 2 Bl. Com. Bk., chap 12, p. 191. When it is considered, as there stated, that in such estate "no man can certainly tell which part is his own," there would be great hazard that the widow, but for our statute, would enjoy the homestead at the behest of the heirs who could, to an oppressive degree, interfere with the widow's use and enjoyment thereof. Even as the land itself may not be partitioned while she lives, neither may her use thereof be divided.

Through Section 1412 the widow does know her own severalty. Her right to occupy the homestead is definite, and if her benefits and burdens were those of cotenancy, the section need not have been enacted. Since she may occupy the homestead without accounting for rents (Martin v. Martin, supra), they may not do so. Again, since she is entitled to any rents therefrom (Miers v. Miers, supra), they are liable conversely for their use thereof.

Undisturbed possession must be defined, not in terms of the forbearance or patience of the widow, but in terms of the legal right not to be subjected to the probability or possibility of a challenged dominion. The widow has the right to retain the homestead as it was during the husband's lifetime, by which test it is seen that she may remain its mistress even as he had been its master. Williams v. Williams, 111 Miss. 129, 71 So. 300; Miers v. Miers, 160 Miss. 746, 133 So. 133. The matter is not complicated by the fact that the deceased left children. Appellant, an adult business man, in far from necessitous circumstances, having purchased the interest of the sole remaining heir, is alone involved. In the first place, there are no minor nor dependent children, and next, the quoted statutes deal not with the duty but with the right of the widow. Wherefore we are not confronted with the necessity of examining to what extent the rights of appellee are modified, if at all, by any legislative purpose to conserve the property for the maintenance of the family. If, as insisted by appellant, the purpose of the statute was to preserve the homestead for the benefit and protection of the family as theretofore, it is a complete answer that none of the rights theretofore existing prior to the husband's death included the power to eject or disturb the widow or to demand either the homestead or its rentals. If Section 1412 could be so read as to vouchsafe to the heirs an inch of privilege, it would be powerless to restrain invasion short of the mile of actual ouster. When viewed in the light of its effect upon the right of enjoyment which the statute seeks to conserve for the appellee, there has already been a virtual partition and an actual ouster pro tanto. If, as is seen in Martin v. Martin, 84 Miss. 553, 36 So. 523, 524, the widow "cannot be compelled to partite or account for the user so long as it is `occupied or used' by her," it must follow that others who so use or occupy it may be made to account to her. Since she is entitled to the use or the rents therefrom, the use may not be taken by others, even the heirs, without liability for the rents. This construction is not merely forecasted by the following cases, but their obvious import has been accepted by repeated reenactment of Section 1553, Code 1892. Martin v. Martin, 84 Miss. 553, 36 So. 523; Moody v. Moody, supra; Stevens v. Wilbourn, supra; Dickerson v. Leslie, 94 Miss. 627, 47 So. 659; Williams v. Williams, supra; Tiser v. McCain, 113 Miss. 776, 74 So. 660; Miers v. Miers, supra; Lackey v. Harrington, 162 Miss. 512, 139 So. 313; Medford v. Mathis, 176 Miss. 188, 168 So. 607. In this connection, Stevens v. Wilbourn, supra, is particularly notable in sustaining the right of the widow to an injunction restraining her two adult children from the use and occupation of any part of the homestead.

Many of our cases deal with the immunity of the homestead to sale or disturbance under the claims of creditors. Such charitable protection is dictated by the same considerations which should exempt it from a similar calamity at the hands of the heirs. It is not conceivable that a disruption of the widow's use of the homestead as a haven or for subsistence could be less painful or distressing if accomplished at the hands of members of her own family. As stated in Moody v. Moody, supra, the rights of the widow are absolute, and "she cannot be called on to account for the use and occupancy, nor forced to purchase the rights of her cotenants." [ 86 Miss. 323, 38 So. 323.] The implication is inescapable that the cotenants cannot charge her for her use of the homestead, and one reason why they can neither partition it nor compel her to "buy them off" is because during her lifetime they have no present estate therein to sell. Since they have none, she has all.

The partition prohibited by Section 1412 is not a mere record identification of the several interests therein without an assertion by the coparceners of their respective rights. It means an actual division of title with the right of possession thereunder. The extent of the respective interests is fixed by Section 1410. The extent to which such interests may be asserted is limited by Section 1412. The right of the widow has the attributes and incidents of a life estate (Medford v. Mathis, 176 Miss. 188, 168 So. 607), and the other heirs are vested with a future estate which takes effect in possession at the termination of the preceding estate or interest. 26 Am. Jur. "Homestead," Sec. 169, p. 106. The status of cotenancy is recognized, but the usual rights thereunder are made subordinate to the widow's right of use and occupancy during her life. In line with the purpose of the statute, the immunity from partition, being personal to the widow, is not extended to her grantee. Middleton v. Claughton, 77 Miss. 131, 24 So. 963.

Although this is the most important contention presented, we have carefully examined all other assignments of error and find that they are not well taken. The peremptory instruction granted to appellee was proper, and the damages by way of rentals are not unreasonable.

Affirmed.