Byars v. Gholson

112 So. 578, 147 Miss. 460, 1927 Miss. LEXIS 287

• Court: Mississippi Supreme Court
• Decided: April 25, 1927
• Docket: No. 26461.
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

The appellant and Washingtoaa Byars were married and separated prior to his death. A divorce suit was filed by Washington Byars against appellant, Alice Byars, in the chaaacery court of Marshall comity, Miss. She answered, delaying the allegations of the bill, and setting up, by way of a cross-bill, allegations for divorce on her own behalf, aaid also for the allowance of temporary and permanent alimony. The chancellor heard the case on bill, answer, and proof, and denied the relief on the bill and also on the cross-bill, from which decree Alice Byars appellant, appealed to this court, where the judgment was affirmed on May 11,1925. 104 So. 111. Thereafter, Washington Byars filed a second bill alleging desertion, which bill was answered by appellant, denying the allegations thereof, but not seeking any affirmative relief. While this suit was pending, before trial thereof, Washington Byars departed his life estate, providing ioa his will that Alice Byars should have a child’s share in his estate. After the first suit for divorce, there was aao resumption of marital relations betweeai the parties, and aao change iaa the status after the affirmance of the decree appealed from iaa the former suit, aaad appellaaat was aaot beiaag supported by Washington Byars at aoay time after such affirmaaace of the case referred to.

After Washing-ton Byars’ death, the appellaaat filed aaa application for the allowance of a year’s support under section 1717, Hemingway’s Code (section 2052, Code of 1906), reading as follows:

“It shall be the duty of the appraisers to set apart out of the effects' of the decedent, for his widow and children who were being supported by him, or for the widow if there be no such children, or for such children if there be no ’widow, one year’s provision, including such provision as may be embraced in the exempt property set apart; and if there be no provisions, or an insufficient amount, the appraiser shall allow money in lieu thereof, or in addition thereto, necessary for the comfortable support of the widow and children, or widow or children, as the case may be, for one year. In addition to the provisions or money in lieu thereof, the appraisers shall ascertain and allow what sum of money will be needed to purchase necessary wearing apparel for the widow and such children, or the widow or children, as the case may be, and to pay tuition for the children for one year. If a mother die leaving children who are infants and were being maintained by her, the same provisions and allowance shall be set apart and made for them as above provided. ’ ’

The chancellor did not allow the application, and, from the judgment so disallowing same, the appellant appeals here.

The appellant contends that she is entitled to one year’s support because she is the legal wife of the decedent, and that the executor had no right to contest the allowance.

The executor contends that the former decree is res adjudicaba of the right of the wife to support "by the decedent, and that she was not within the statute above quoted, because she was not being supported by him at the time of his death.

The appellant relies upon the case of Morgan v. Morgan, 3 6 Miss. 348, in which it was held that the proceeding by the widow to have set apart to her and her minor children, a year’s allowance out of her deceased husband’s estate is ex parte, and the administrator is not entitled to take notice of it, nor authorized to litigate her claims. The case before ns is different from the case of Morgan v. Morgan, supra, for the reason that the wife, in the case at bar, was living apart from her husband, and was not being supported by him at the time of his death, and because it had been judicially determined that she' was not entitled to support from him by decree of a competent court, and affirmed by this court.

'Where the wife is living with her husband at the time of his death, or where she is being supported by him, she is entitled to one year’s support as provided by the statute. If she is living apart from him through no fault of her own, but through the fault of her husband, she would probably still be entitled to support, because the husband could not, by his own misconduct, deprive her of the right to support where she was without fault.

But the duty of the husband to support the wife growing out of the marriage relation, is coupled with reciprocal obligations upon the wife to porform her duty imposed by such marital relations. Cofee v. Cofee (Miss.), 111 So. 377.

It follows from what we have said that the decree of the chancellor must be affirmed.

Affirmed.