Gavin v. Gavin , 116 Miss. 197 ( 1917 )

Ethridge, J.,

delivered the opinion of the court.

Appellants filed their bill in the chancery court, alleging that James Gavin departed this life intestate about tbe 18th day of August, 1915, and left surviving him the complainants and the defendants as his heirs at law, the defendant Eosa Gavin being his wife, and the others being children,, four of the children being children of the deceased-and Eosa Gavin, and the others being children of a former marriage. It is alleged that the decedent died seised and possessed in fee simple of certain lands described in the bill. It was further alleged that at the time of the death of James Gavin no part of the land described in the bill constituted a -homestead of the said Gavin, deceased, and that he had never resided upon the lands, nor improved the same as a homestead. It is further alleged that Eósa Gavin entered upon the lands in question subsequent to the death of James Gavin and was claiming the right to use them; that she had cut from the lands timber growing thereon, or the .principal part thereof, and converted the same to her own use; and that she had forbidden the complainants from entering upon or exercising any control or ownership over the land. It was also alleged that Eosa Gavin cut about three hundred trees from the said land, and that she would not permit the complainants to go upon the’ land for the purpose of determining, the number of trees cut. The' bill further alleged that it was impracticable to carve out fifteen interests in the said lands, and prayed for a partition of said lands, or a sale for partition, and for an accounting by Eosa Gavin of the timber cut, and that she be charged therewith and the charge made a lien on her interests in the said property, and alleging that the timber cut and sold by Eosa Gavin was worth more than her interest in the property. The bill was demurred to by the defendants, on the grounds that there' was no equity in the bill, and that it showed on its face that Eosa Gavin was entitled to the use of the said land mentioned in the bill as a homestead during her widowhood. The demurrer was sustained by the chancellor, and an appeal taken. In the decree allowing’ the appeal it was recited that:

“Counsel agree that only the hill as amended, the demurrer, and the decree need he sent to the supreme court.”

It appearing from the bill that all the parties were children of the decedent except Bosa Gavin, and she was-his wife, and it being alleged that she refused to let them enter upon and occupy the lands, and it being further alleged that the decedent had never occupied the lands as a homestead, we think the chancellor was in error in sustaining the demurrer to the bill. Section 1649, Code of 1906, provides for the descent of land other than exempt lands, and provides that it shall descend to the-children and wife in equal parts. Section 2146’provides for the exemption of homésteads in the country, and provides that the landé and buildings owned and occupied as a residence by the owner shall be exempt, not to exceed one hundred and sixty acres, in quantity and over three thousand dollars in value. Section 1657 of the Code pro-* vides for the descent of exempt property, providing that it shall descend to the children and wife, and under this section each has an equal interest and right in the homestead. Section 1659 provides that, where the decedent leaves a widow to whom with others his exempt property, both real and personal, descends, the same shall not be subject, to partition or sale for partition during her widowhood so long as it is occupied or used by the widow, unless she consents.

Among the allegations of the bill it was alleged that the property was not exempt property of the decedent, and the demurrer admits this'; but, even if this was not true, the bill should have been retained, and an account-; ing of the timber cut and sold required. The appellees in their brief refer to á homestead declaration filed by the widow subsequent to the death of James Gavin, deceased, selecting the lands in question as a homestead under the provisions of chapter 216, Laws of 1912. The record, however, does not contain any such declaration, and as we can only decide the case presented by the record, we do not decide what effect, if any, such declaration would have upon the suit.

The cause is reversed and remanded. •'

Reversed and remanded.