Ross v. Porter , 72 Miss. 361 ( 1894 )

Woods, J.,

delivered the opinion of the court.

We are clearly of opinion that S. H. Eoss, the husband of appellant, E. Y. Eoss, abandoned his homestead in the country and acquired another in the town of Verona. We are clearly of opinion, also, that he finally abandoned the Verona homestead, with the intention of reoccupying the country place as his homestead again, and as speedily as practicable. His declarations to all who conversed with him on the subject, and his Concurrent acts demonstrate this intention with absolute certainty. To the tenant in possession of the country place, he gave directions as to storing on the premises his part of the crops — the food crops; he made some arrangements with the tenant looking to his reoccupation of the country house; he actually secured the right from the tenant to enter the premises before the tenant’s lease would have naturally expired; and his preparations were completed under which he would have been actually in the reoccupancy of his old home before his death, if the silent but irresistible messenger had not prostrated him on a bed of suffering from which he never rose. He would have been in the country house before death overtook him, but for illness so serious as prevented his removal from the hospitable roof that sheltered him temporarily.

In Wilson v. Gray, 59 Miss., 525, it was held, in effect, that an intention to speedily abandon a homestead, followed by an actual abandonment, would divest the residence of the character of a homestead. This rule will stamp the country place, in the case at bar, with the character of a homestead. S. H. Eoss had abandoned the town house as a homestead, and had formed the fixed intention of reoccupying the country place as his homestead as speedily as possible. He had made the necessary preparations to reoccupy in September or October, and he only failed to actually take possession by reason of prostration on his deathbed, his death occurring late in November, a date subsequent to that on which he had arranged to enter.

The decree is affirmed on the appeal of V. C. Kincannon, and reversed on the appeal of K. V. Ross, and the bill dismissed in so far as it seeks to subject the country homestead.