[409]*409Hall, J.
This case involves the right of possession of the appellee to the middle one-third of Lot 1 of Harvey Place according to map or plat thereof on file and of record in Plat Book B, page 89 of the land records in the office of the Chancery Clerk of Hinds County in Jackson, Mississippi, being 20.5 acres more or less on which is situated the residence of the appellee and occupied by him and his wife, Mrs. Marie Edwards Roberts, who died June 2, 1957 and who was the mother of the appellant.
The chancellor found and was abundantly justified in so doing that the property in question was acquired by Mr. and Mrs. Henry T. Roberts by deed to them as tenants in common on February 16, 1926. Their home was situated on this property. Mrs. Roberts left will which has been duly admitted to probate under which she devised all of her property to her only daughter, the appellant herein.
Mrs. Roberts was entitled to make this will and by the will of her one-half interest in the homestead passed to the appellant because the property owned by Mr. Roberts greatly exceeded that which was owned by the testatrix, but after probate of the will the appellee promptly renounced the same as he had no right to do, because he owned property far in excess of the value of his wife’s property. Sec. 670, Code of 1942.
At the trial he claimed his homestead right to the entire property and the appellant claimed the right to [410]*410occupy a portion of the same and also claimed the right to a partition thereof and a division of the proceeds of sale.
The chancellor erroneously held that the appellee properly renounced the will and was entitled to do so and to take by inheritance one-half of her estate including one-half of her one-half interest in the land in suit and that Mr. Roberts is the owner of an undivided three-fourths interest in said land and Mrs. Biggs is the owner of an undivided one-fourth interest therein. The chancellor further found, and correctly so, that Mr. Roberts resides in the residence on the land in suit as his home and that said property is not subject to partition at this time. From this adjudication Mr. Roberts appeals claiming that he first acquired the full title to said land under an undated and acknowledged deed in 1917 but the chancellor held, and properly so, that Mr. Roberts acquired nothing by said undated and unacknowledged deed because, as found, said deed was never delivered, but acquired as a tenant in common with his wife under the deed of February 16, 1926. From that decree Mrs. Biggs prosecutes a direct appeal and Mr. Roberts prosecutes a cross-appeal still relying on the undated and unacknowledged and undelivered deed of 1917, but from what we have said it is apparent that the cross-appeal is without merit. The appellant contends that the trial court erred in holding that the property, although the homestead of appellee, was not subject to partition while the widower continued to reside thereon. Actually the only serious contention in issue is whether or not Mr. Roberts is entitled to hold the residence during his lifetime, so long as he remains a widower, as a homestead and the appellant argues that under Section 478, revised Code of 1942, he can only claim a homestead when his title is acquired by inheritance. Said Section 478 reads as follows: “Where a decedent leaves a widow to whom, with others, his exempt [411]*411property, real and personal, descends, the same shall not he subject to partition or sale for partition during her widowhood, as long as it is occupied or used by the widow, unless she consent. Likewise, where a decedent leaves a widower to whom, with others, her exempt property, real and personal, descends, the same shall not he subject to partition or sale for partition during the period of his being a widower, as long as it is occupied o'r used by the widower, unless he consent. Provided that this act shall not affect any pending suit.”
We do not think that it is absolutely necessary for the husband to acquire the property by inheritance in order to he entitled to claim it as a homestead. In the case of Lackey v. Harrington, 162 Miss. 512, 516, 139 So. 313, the Court said: ‘(The widow, having redeemed the property so far as it affects her rights, has title against the other tenants to occupy same as a homestead, so long as she remains a widow, regardless of the source from which the title of the cotenants is derived. The statute giving the widow the right to occupy the homestead during her widowhood is to be liberally construed, and serves a beneficial public purpose.” (Emphasis supplied.) The above quotation was subsequently criticised in one case hut it was not withdrawn or overruled.
In the case of Milton v. Milton, 193 Miss. 563, 10 So. 2d 175, the last paragraph of the syllabus is as follows: “Where testator’s widow renounced will devising to her a life estate in the home of testator and family at the time of his death with remainder to daughter, widow was entitled to a one-third interest in the property in fee and daughter to the other two-thirds interest therein, subject to widow’s right under statute to occupy and use the property during her widowhood.”
In numerous cases we have held that the homestead exemption law should he liberally construed. In the case of Moody v. Moody, 86 Miss. 323, 38 So. 322, [412]*412Judge Truly said on page 328 of the Mississippi Reports: “A law designed to establish a beneficent public policy must be liberally construed, in order to completely effectuate the legislative purpose.” And on page 326 of the same volume he said: “The object of the exemption law is to insure that the families of the residents of this state shall never by financial misfortune or stress of circumstances be deprived of their homesteads, and the desired end is sought to be secured by providing that no creditor shall be permitted to wrest from the family the dwelling place. This has been the law and the recognized public policy of this state for many years. ’ ’
In the case of Dickerson v. Leslie, 94 Miss. 627, 47 So. 659, the Court said: “A law designed to establish a beneficent public policy must be liberally construed in order to completely effectuate the legislative purpose.” And on page 634 of 94 Mississippi the Court said: “No’statute ever passed has a greater claim upon the Court for liberal construction than this.”
In the case of Williams v. Williams, 111 Miss. 129, 132, 71 So. 300, the Court said: “The law looks with favor upon the homestead exemption and guards jealously, not only the right of the husband to occupy with his family the home while he is living, but continues to give shelter to his widow during her widowhood, even saying to the creditors that the homestead is sacred ground and cannot be subjected to their debts.”
In the case of Gardner v. Cook, 173 Miss. 245, 253, 158 So. 150, the Court said: “Likewise, homestead statutes are to be construed sensibly, but liberally, in favor of the exemptionist. ”
In the case of Daily v. City of Gulfport, 212 Miss. 361, 367, 54 So. 2d 485, this Court held: “To hold with appellee’s contention would require a narrow construction of the law, which runs counter to our holding in Campbell v. Adairs, 45 Miss. 170, 182, that ‘the statutes granting homestead exemption are entitled to be liberally [413]
Free access — add to your briefcase to read the full text and ask questions with AI
[409]*409Hall, J.
This case involves the right of possession of the appellee to the middle one-third of Lot 1 of Harvey Place according to map or plat thereof on file and of record in Plat Book B, page 89 of the land records in the office of the Chancery Clerk of Hinds County in Jackson, Mississippi, being 20.5 acres more or less on which is situated the residence of the appellee and occupied by him and his wife, Mrs. Marie Edwards Roberts, who died June 2, 1957 and who was the mother of the appellant.
The chancellor found and was abundantly justified in so doing that the property in question was acquired by Mr. and Mrs. Henry T. Roberts by deed to them as tenants in common on February 16, 1926. Their home was situated on this property. Mrs. Roberts left will which has been duly admitted to probate under which she devised all of her property to her only daughter, the appellant herein.
Mrs. Roberts was entitled to make this will and by the will of her one-half interest in the homestead passed to the appellant because the property owned by Mr. Roberts greatly exceeded that which was owned by the testatrix, but after probate of the will the appellee promptly renounced the same as he had no right to do, because he owned property far in excess of the value of his wife’s property. Sec. 670, Code of 1942.
At the trial he claimed his homestead right to the entire property and the appellant claimed the right to [410]*410occupy a portion of the same and also claimed the right to a partition thereof and a division of the proceeds of sale.
The chancellor erroneously held that the appellee properly renounced the will and was entitled to do so and to take by inheritance one-half of her estate including one-half of her one-half interest in the land in suit and that Mr. Roberts is the owner of an undivided three-fourths interest in said land and Mrs. Biggs is the owner of an undivided one-fourth interest therein. The chancellor further found, and correctly so, that Mr. Roberts resides in the residence on the land in suit as his home and that said property is not subject to partition at this time. From this adjudication Mr. Roberts appeals claiming that he first acquired the full title to said land under an undated and acknowledged deed in 1917 but the chancellor held, and properly so, that Mr. Roberts acquired nothing by said undated and unacknowledged deed because, as found, said deed was never delivered, but acquired as a tenant in common with his wife under the deed of February 16, 1926. From that decree Mrs. Biggs prosecutes a direct appeal and Mr. Roberts prosecutes a cross-appeal still relying on the undated and unacknowledged and undelivered deed of 1917, but from what we have said it is apparent that the cross-appeal is without merit. The appellant contends that the trial court erred in holding that the property, although the homestead of appellee, was not subject to partition while the widower continued to reside thereon. Actually the only serious contention in issue is whether or not Mr. Roberts is entitled to hold the residence during his lifetime, so long as he remains a widower, as a homestead and the appellant argues that under Section 478, revised Code of 1942, he can only claim a homestead when his title is acquired by inheritance. Said Section 478 reads as follows: “Where a decedent leaves a widow to whom, with others, his exempt [411]*411property, real and personal, descends, the same shall not he subject to partition or sale for partition during her widowhood, as long as it is occupied or used by the widow, unless she consent. Likewise, where a decedent leaves a widower to whom, with others, her exempt property, real and personal, descends, the same shall not he subject to partition or sale for partition during the period of his being a widower, as long as it is occupied o'r used by the widower, unless he consent. Provided that this act shall not affect any pending suit.”
We do not think that it is absolutely necessary for the husband to acquire the property by inheritance in order to he entitled to claim it as a homestead. In the case of Lackey v. Harrington, 162 Miss. 512, 516, 139 So. 313, the Court said: ‘(The widow, having redeemed the property so far as it affects her rights, has title against the other tenants to occupy same as a homestead, so long as she remains a widow, regardless of the source from which the title of the cotenants is derived. The statute giving the widow the right to occupy the homestead during her widowhood is to be liberally construed, and serves a beneficial public purpose.” (Emphasis supplied.) The above quotation was subsequently criticised in one case hut it was not withdrawn or overruled.
In the case of Milton v. Milton, 193 Miss. 563, 10 So. 2d 175, the last paragraph of the syllabus is as follows: “Where testator’s widow renounced will devising to her a life estate in the home of testator and family at the time of his death with remainder to daughter, widow was entitled to a one-third interest in the property in fee and daughter to the other two-thirds interest therein, subject to widow’s right under statute to occupy and use the property during her widowhood.”
In numerous cases we have held that the homestead exemption law should he liberally construed. In the case of Moody v. Moody, 86 Miss. 323, 38 So. 322, [412]*412Judge Truly said on page 328 of the Mississippi Reports: “A law designed to establish a beneficent public policy must be liberally construed, in order to completely effectuate the legislative purpose.” And on page 326 of the same volume he said: “The object of the exemption law is to insure that the families of the residents of this state shall never by financial misfortune or stress of circumstances be deprived of their homesteads, and the desired end is sought to be secured by providing that no creditor shall be permitted to wrest from the family the dwelling place. This has been the law and the recognized public policy of this state for many years. ’ ’
In the case of Dickerson v. Leslie, 94 Miss. 627, 47 So. 659, the Court said: “A law designed to establish a beneficent public policy must be liberally construed in order to completely effectuate the legislative purpose.” And on page 634 of 94 Mississippi the Court said: “No’statute ever passed has a greater claim upon the Court for liberal construction than this.”
In the case of Williams v. Williams, 111 Miss. 129, 132, 71 So. 300, the Court said: “The law looks with favor upon the homestead exemption and guards jealously, not only the right of the husband to occupy with his family the home while he is living, but continues to give shelter to his widow during her widowhood, even saying to the creditors that the homestead is sacred ground and cannot be subjected to their debts.”
In the case of Gardner v. Cook, 173 Miss. 245, 253, 158 So. 150, the Court said: “Likewise, homestead statutes are to be construed sensibly, but liberally, in favor of the exemptionist. ”
In the case of Daily v. City of Gulfport, 212 Miss. 361, 367, 54 So. 2d 485, this Court held: “To hold with appellee’s contention would require a narrow construction of the law, which runs counter to our holding in Campbell v. Adairs, 45 Miss. 170, 182, that ‘the statutes granting homestead exemption are entitled to be liberally [413]*413construed by this Court.’ ” And in 212 Mississippi at page 370 in the same case the Court quoted with approval from Zukoski v. McIntyre, 93 Miss. 806, 811, 47 So. 435, 436 as follows: “The homestead right is a favored one in the law, and the courts will not be on the alert to defeat the assertion of those rights. "Whenever there is serious doubt as to whether or not property is or is not a homestead, the doubt should be solved in favor of the exemptionist, sustaining, instead of defeating, the estate, which is created by a sound legal policy. ’ ’
In 40 C. J. S., Homesteads, Section 8, the rule is laid down that homestead laws must be liberally construed and in the same book on the same subject at Section 88, pages 525 and 526 it is said: ‘ ‘ On the theory that homestead laws are to be liberally construed, and that, if so construed, their policy is to protect the debtor and his family in their possession of a home, irrespective of the character or extent of the estate owned by the debtor, provided he is not a mere intruder, one view is that such an owner, on satisfying requirements as to occupancy and use of the property, may acquire a homestead in the premises. This rule has been said to be in force in the majority of the jurisdictions and to be supported by the great or overwhelming weight of authority and the more recent authorities.”
In conference there has been brought to our attention the case of Osburn v. Sims, Executor, et al., 62 Miss. 429, which was decided under the law as it existed in the Code of 1880 as Sec. 1277 thereof but we do not think that case is controlling here for the reason that the law in the Code of 1880 has been changed by subsequent legislation which was not in existance at that time. At that time Sec. 1248 of the Code of 1880 existed as it has been brought forward in the Code of 1942 with the exception of a minor change as to quantity of land and value, but long thereafter our legislature has [414]*414added to this section the following: “Provided however that in determining this value, existing encumbrances on such land and buildings, including taxes and other liens, shall first be deducted from the actual value of such land and buildings. But husband or wife, widower or widow, over sixty years of age, who has been an exemptionist under this section, shall not be deprived of such exemption because of not having a family or not occupying the homestead.” In this case we are dealing-only with homestead rights, of a man over sixty years of age, and it will be noted that in Sec. 317, Code of 1942, no mention whatsoever is made of a necessity that lands be acquired by inheritance, and we think that the case of Osburn v. Sims, while correctly decided under the Code of 1880, has been in effect changed by the amendment aforesaid found in Sec. 317.
We think that the chancellor was correct in decreeing that Mr. Roberts is entitled to hold the property in question as a homestead so long as he remains a widower and that he was correct in holding that Mr. Roberts’ title was acquired by the deed to himself and wife on February 16, 1926.
However, since he had no right to renounce his wife’s will, as above pointed out, we are of the opinion that his attempted renunciation was ineffective and that Mrs. Roberts, being- the owner of a full undivided one-half interest in the property, had the right to dispose of the fee simple title to same by will and that consequently, under her will, Mrs. Biggs acquired an undivided one-half fee simple interest and not simply an undivided one-fourth interest as decreed by the chancellor. Consequently the decree of the lower court must be reversed and judgment here entered in favor of Mrs. Biggs for an undivided one-half interest in the fee simple title, not subject to partition during- the widowerhood of Mr. Roberts.
[415]*415Affirmed in part on direct appeal and reversed in part and judgment here on direct appeal. Affirmed in part on cross-appeal and judgment here.
McGeliee, C. J., Roberds, P. J., Lee and Arrington, JJ., concur.