Summary
In Miers v. Miers, 160 Miss. 746, 133 So. 133 (1931) decedent was survived by a widow and 5 children, all adults. The widow applied for and was granted a year's allowance and there being no money or other property out of which to pay the allowance, the trial court ordered a sale of the lands constituting the homestead to make the allowance, the sale to be subject, however, to the homestead rights of the widow in said lands.
Summary of this case from Mills v. MillsOpinion
No. 29309.
March 23, 1931.
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).
APPEAL from chancery court of Montgomery county; HON. N.R. SLEDGE, Chancellor.
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 Calif. 149, 72 P. 909.
Argued orally by W.T. Knox and V.D. Rowe, for appellant, and by J.W. Conger, for appellee.
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, and is shown not to be in point. Appellee also cites several Georgia cases, among them being Cook v. Cook, 138 Ga. 88, 74 S.E. 795, 796, but that case holds that "a widow, who is the sole beneficiary of a homestead which was taken by her husband during his lifetime, after his death is not entitled to hold the homestead and at the same time take a year's support and dower in the same land," and this seems to be more nearly the case here before us. An examination of all the Georgia cases on the subject discloses that under the laws of that state a widow may take a year's support out of the homestead, if within the allowance in value, and may have the homestead set over to her in discharge or in part discharge of her said year's allowance, but that when this is done the property loses its exempt character as a homestead and becomes liable for her debts. Lowe v. Webb, 85 Ga. 731, 11 S.E. 845; Miller v. Crozier, 105 Ga. 54, 31 S.E. 122; Green v. Hambrick, 118 Ga. 569, 45 S.E. 420. This is sufficient to show that the jurisprudence of that state in relation to the subject in hand is different from ours to the extent that no substantial aid can be derived from their cases.
The sections of our statutes which deal with the matter of the year's allowance are sections 1654, 1656, 1664, and 1667, Code 1930, and what are assets of an estate are enumerated in section 1643, said Code. Under the language of these sections it would appear, at first view, that personal property rather than realty was in the legislative mind in providing for the said allowance, and so the courts hold in a majority of the states, 1 Woerner, Law of Administration (3 Ed.), section 91; but, in view of the general expressions in several of our own cases, we are not prepared now to so limit the allowance, and besides that exact question is not before us. Suffice it to say now that although the privilege or exemption of a year's support is a claim of the highest dignity, First Nat. Bank v. Donald, 112 Miss. 681, 73 So. 723, it is not higher than that of the homestead. The year's support, however, is of a temporary nature, while the homestead is designed as a permanent protection and support so long as the family exists, and the family, in the eyes of the homestead law, continues to exist so long as the widow lives and remains a widow, sections 1412 and 1766, Code 1930; wherefore we must hold that the year's allowance cannot impinge upon the homestead.
But it is urged that the decree here does not impinge upon the homestead rights, since the sale was expressly ordered to be made subject to those rights. Unless the letter and the context of the law otherwise require, statutes must be so construed that their operation shall be consistent and practical. We will suppose the case of a widow of less than middle age, with children of tender years. The life expectancy of the widow is, say, thirty years. Who other than the widow herself could bid more than a pittance, if anything at all, on a small homestead, subject to such a length of years of a dominant estate and use? And if the widow buy in the homestead, it would serve no rational purpose towards raising her year's support, except to enable her thereupon to sell it, freed of the interest of the heirs at law, to divest it of the character of a homestead; and then when the small amount realized is spent, the children would be without a home. All must admit, as we take it, that no such result is within the contemplation or allowance of the law, in a case such as stated. If it be not the law in such a case, then the principle, being general, runs to all cases within it, including the case such as is here at bar. There will, of course, be an occasional case of isolation or ill health where it would be better to sell the homestead and move the family to a more advantageous location, but such cases can be met, for instance, by partition on the prayer or with the consent of the widow, and where the adjudication will not be ex parte, but all those in interest and to be affected will be made parties, and will have the right to be heard, and where the proceedings shall be under the watchful care of the chancellor at every step taken.
We are of the opinion, therefore, that the homestead is not subject to sale to make the year's allowance, and in that respect the decree of the chancery court is reversed and vacated. The decree is correct, however, in all other respects and particularly in the allowance to the widow of the rent for 1929. Being entitled to the use and occupancy of the homestead, she is in consequence entitled to the rents thereof, and will so continue during her life or widowhood, unless she shall in the future otherwise elect and consent.
The costs of this appeal, and of the trial of this cause in the chancery court, will be divided between the parties, each being taxed with one-half thereof.
Affirmed in part, and in part reversed.