W. H. Cook, J.,
delivered the opinion of the court.
Appellee, E. B. BarnAvell, exhibited his bill of complaint in the chancery court of Jackson county against W. M. Cain, J. B. Cain, and C. E. Cain, appellants, praying that a certain document, purporting to be the last will and testament of Mrs. Louise C. Barnwell, deceased, which had been admitted to probate by the chancery clerk, be declared null and void, and praying for the cancellation of a certain deed executed by testatrix to appellants, or, in the [132]*132alternative, if the court shall hold that the will was valid, that complainant should be adjudged the owner of an undivided one-half interest in the lands devised.
It appears from the allegations of the bill that appellee is the surviving husband of the testatrix, Mrs. Louise C. Barnwell, and that appellants are her nephews; that on October 9, 1916, she executed her will devising to appellants certain lands occupied by her as a homestead and particularly described in the bill; that, soon after she made this will, she executed and delivered to appellants a deed of conveyance for the same lands devised in the will. The bill charges that this conveyance, made subsequent to the will, was a revocation thereof, and 'for that reason the probate of the will in common form should be set aside and the will declared revoked. It is also charged that the lands conveyed constituted the exempt homestead of appellee and his wife, the testatrix; that the deed was void, because appellee, as the husband, did not sign the same; that the appellee did not’possess a separate estate at the time of the death of his wife,' and under our statutes, there being no provision whatever in the will for the husband, appellee is entitled to be awarded an undivided interest in the land if the will is held to be valid. There was a demurrer to the bill, and from a decree overruling the demurrer an appeal was prosecuted to this court.
The opinion on the former appeal is reported in 120 Miss. 209, 82 So. 65, and the court there held that the deed of conveyance executed by testatrix to appellants was void, and that appellee was entitled to a cancellation thereof; that the will was not revoked by this void conveyance; that the will sufficiently described the lands devised and was valid; that under the averments of the bill the surviving husband “was entitled to be declared and adjudged the owner of an undivided one-half of the property described and sued for,” and the cause was affirmed and remanded for further proceedings in accordance with the holdings therein announced.
[133]*133On the former appeal it did not appear from the record that the testatrix owned any property except that devised and mentioned in the will, and the court there said that the land devised was apparently all the property owned by testatrix; but, when the cause was remanded, appellants filed an answer and cross-bill averring that the testatrix, at .the date of her death, owned other real and personal property which was not mentioned or devised in her will, and that, in value, the property not devised was largely in excess of one-lialf of her entire estate, and denying the right of appellee to be adjudged the owner of a half interest in the lands devised for the reason that, since the testatrix died intestate as to more than one-half of her estate, and appellee, as sole heir of testatrix, inherited this property, his statutory right to one-half of the realty devised was thereby defeated. The cross-bill also sought to recover rent for the devised premises, but since all claims for improvements in the original bill, and for rent in the cross-bill, have now been abandoned, these allegations are not here material.
At the next term of the chancery court the cause was set down for final hearing, by agreement of the parties, upon the bill of complaint, answer, and cross-bill, answer to cross-bill, and an agreed statement of facts; the parts of the agreed statement of facts which are material to an understanding of the question here presented for decision being as follows:
“In view of the fact that, on the recent appeal of this cause to the supreme court,' it was held by said supreme court that the instrument of writing purporting to be the last will and testament of Mrs. Louise C. Barnwell, deceased, involved in litigation herein, is the true last will and testament of said decedent, and that the legatees therein and defendants herein are the owners of the land described in said will and in the original bill of complaint in this cause, unless the complainant herein is entitled to one-half of said land under the provisions of the statute pertaining to wills where no provision is made for the sur[134]*134viving husband, namely., section 5087, Code of 1906 (section 3375, Hemingway’s Code); therefore, and that the question of whether or not the complainant is entitled to an undivided one-half interest in said land, or whether or not the defendants are entitled to all of said land, and to obviate the necessity of taking testimony, it is hereby agreed that the following statements are the facts in the case, and that same may be submitted as facts and the testimony in the case to be considered by the court on the hearing hereof:
“First. That the said Mrs. L. C. Barnwell made no provision whatever in her said last will for complainant, E. B. Barnwell, and made no disposition of any property owned by her other than the land described in the will and bequeathed to the defendants herein.
“Second. That complainant, E. B. Barnwell, is the surviving husband of the said Mrs. Louise C. Barnwell, deceased, and that said decedent left no child nor descendant of such child, and consequently under the statute of descent and distribution the said E. B. Barnwell is the sole and only heir at law of his said wife.
“Third. That at the time of the death of the said Mrs. L. C. Barnwell she owned other property, real and personal, and as is shown by the inventory in the administration of her estate in this court and the answer and cross-bill of defendants to bill, and which said property was not mentioned nor disposed of in and by said last will and testament.
“Fourth. That at the date of the death of the said Mrs. L. C. Barnwell complainant, E. B. Barnwell, had no separate estate and owned no property.
“Sixth. That several brothers and sisters of the said Mrs. L. C. Barnwell survived her and are still living, and that the defendants herein are nephews of the said decedent and sons of Mrs. Nettie Cain, a sister of the said Mrs. L. C. Barnwell, and which said Mrs. Cain is still and now living in said Jackson county.
[135]*135“Seventh. That the said E. B. Barnwell, complainant, has paid the state and county taxes on the land described in said will and the pleadings in this cause for the years 1916, 1917, 1918, and 1919, amounting in the aggregate to thirty-nine dollars and sixty-eight cents.”
On the trial of the cause a decree was rendered, canceling the deed of conveyance to appellants, and recognizing and establishing the will as the true and valid last will and testament of Mrs. L. 0.
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W. H. Cook, J.,
delivered the opinion of the court.
Appellee, E. B. BarnAvell, exhibited his bill of complaint in the chancery court of Jackson county against W. M. Cain, J. B. Cain, and C. E. Cain, appellants, praying that a certain document, purporting to be the last will and testament of Mrs. Louise C. Barnwell, deceased, which had been admitted to probate by the chancery clerk, be declared null and void, and praying for the cancellation of a certain deed executed by testatrix to appellants, or, in the [132]*132alternative, if the court shall hold that the will was valid, that complainant should be adjudged the owner of an undivided one-half interest in the lands devised.
It appears from the allegations of the bill that appellee is the surviving husband of the testatrix, Mrs. Louise C. Barnwell, and that appellants are her nephews; that on October 9, 1916, she executed her will devising to appellants certain lands occupied by her as a homestead and particularly described in the bill; that, soon after she made this will, she executed and delivered to appellants a deed of conveyance for the same lands devised in the will. The bill charges that this conveyance, made subsequent to the will, was a revocation thereof, and 'for that reason the probate of the will in common form should be set aside and the will declared revoked. It is also charged that the lands conveyed constituted the exempt homestead of appellee and his wife, the testatrix; that the deed was void, because appellee, as the husband, did not sign the same; that the appellee did not’possess a separate estate at the time of the death of his wife,' and under our statutes, there being no provision whatever in the will for the husband, appellee is entitled to be awarded an undivided interest in the land if the will is held to be valid. There was a demurrer to the bill, and from a decree overruling the demurrer an appeal was prosecuted to this court.
The opinion on the former appeal is reported in 120 Miss. 209, 82 So. 65, and the court there held that the deed of conveyance executed by testatrix to appellants was void, and that appellee was entitled to a cancellation thereof; that the will was not revoked by this void conveyance; that the will sufficiently described the lands devised and was valid; that under the averments of the bill the surviving husband “was entitled to be declared and adjudged the owner of an undivided one-half of the property described and sued for,” and the cause was affirmed and remanded for further proceedings in accordance with the holdings therein announced.
[133]*133On the former appeal it did not appear from the record that the testatrix owned any property except that devised and mentioned in the will, and the court there said that the land devised was apparently all the property owned by testatrix; but, when the cause was remanded, appellants filed an answer and cross-bill averring that the testatrix, at .the date of her death, owned other real and personal property which was not mentioned or devised in her will, and that, in value, the property not devised was largely in excess of one-lialf of her entire estate, and denying the right of appellee to be adjudged the owner of a half interest in the lands devised for the reason that, since the testatrix died intestate as to more than one-half of her estate, and appellee, as sole heir of testatrix, inherited this property, his statutory right to one-half of the realty devised was thereby defeated. The cross-bill also sought to recover rent for the devised premises, but since all claims for improvements in the original bill, and for rent in the cross-bill, have now been abandoned, these allegations are not here material.
At the next term of the chancery court the cause was set down for final hearing, by agreement of the parties, upon the bill of complaint, answer, and cross-bill, answer to cross-bill, and an agreed statement of facts; the parts of the agreed statement of facts which are material to an understanding of the question here presented for decision being as follows:
“In view of the fact that, on the recent appeal of this cause to the supreme court,' it was held by said supreme court that the instrument of writing purporting to be the last will and testament of Mrs. Louise C. Barnwell, deceased, involved in litigation herein, is the true last will and testament of said decedent, and that the legatees therein and defendants herein are the owners of the land described in said will and in the original bill of complaint in this cause, unless the complainant herein is entitled to one-half of said land under the provisions of the statute pertaining to wills where no provision is made for the sur[134]*134viving husband, namely., section 5087, Code of 1906 (section 3375, Hemingway’s Code); therefore, and that the question of whether or not the complainant is entitled to an undivided one-half interest in said land, or whether or not the defendants are entitled to all of said land, and to obviate the necessity of taking testimony, it is hereby agreed that the following statements are the facts in the case, and that same may be submitted as facts and the testimony in the case to be considered by the court on the hearing hereof:
“First. That the said Mrs. L. C. Barnwell made no provision whatever in her said last will for complainant, E. B. Barnwell, and made no disposition of any property owned by her other than the land described in the will and bequeathed to the defendants herein.
“Second. That complainant, E. B. Barnwell, is the surviving husband of the said Mrs. Louise C. Barnwell, deceased, and that said decedent left no child nor descendant of such child, and consequently under the statute of descent and distribution the said E. B. Barnwell is the sole and only heir at law of his said wife.
“Third. That at the time of the death of the said Mrs. L. C. Barnwell she owned other property, real and personal, and as is shown by the inventory in the administration of her estate in this court and the answer and cross-bill of defendants to bill, and which said property was not mentioned nor disposed of in and by said last will and testament.
“Fourth. That at the date of the death of the said Mrs. L. C. Barnwell complainant, E. B. Barnwell, had no separate estate and owned no property.
“Sixth. That several brothers and sisters of the said Mrs. L. C. Barnwell survived her and are still living, and that the defendants herein are nephews of the said decedent and sons of Mrs. Nettie Cain, a sister of the said Mrs. L. C. Barnwell, and which said Mrs. Cain is still and now living in said Jackson county.
[135]*135“Seventh. That the said E. B. Barnwell, complainant, has paid the state and county taxes on the land described in said will and the pleadings in this cause for the years 1916, 1917, 1918, and 1919, amounting in the aggregate to thirty-nine dollars and sixty-eight cents.”
On the trial of the cause a decree was rendered, canceling the deed of conveyance to appellants, and recognizing and establishing the will as the true and valid last will and testament of Mrs. L. 0. Barnwell, deceased, and decreeing that, under the provisions of the statute, appellee was the owner in fee simple of an undivided one-half interest in the lands devised, and that appellants, under the provisions of the will, were the owners of an undivided one-half interest in said lands, and that appellee was entitled to be reimbursed for one-half of the taxes paid by him on said premises, and from this decree the present appeal is prosecuted.
The sole question for decision is whether, under the facts as now presented, appellee’s statutory right to claim an interest in the devised property is defeated. Counsel for appellants contend that, inasmuch as the value of the land devised to appellants is less than one-half of the whole estate of testatrix, appellee cannot claim the statutory interest in the devised lands, or, to state it in another way, in case the surviving husband has no separate estate, and there is no provision for him in the will of his deceased wife, and there is no surviving child nor descendant of such, his right to claim an interest or share in the devised property is dependent upon whether or not, by the terms of the will, he has been deprived of one-half of the entire estate, both real and personal.
Counsel have failed to refer us to any case, and we have been unable to find any, in which the courts of this state have adjudicated the exact question here presented, and we must therefore look solely to the statutory provisions for guidance in reaching our conclusions. Section 5086, Code of 1906 (section 3374, Hemingway’s Code), provides that when a husband makes his last will and testament, [136]*136and does not make satisfactory provision for his wife, she may, at any time within six months after the probate of the will, renounce the will, and she shall then be entitled to such part of his estate, real and personal, as she would have been entitled to if he had died intestate, except that, even if the husband left no child nor descendant of such the widow, upon renouncing, shall be entitled to only one-half of the real and personal estate of her deceased husband, and that a husband may renounce the will of his deceased wife under the same circumstances, in the same time and manner, and with the same effect upon his right to share in her estate, as therein provided for the widow. ■
If there is no provision for the other in the will of the husband or wife, and the survivor have no separate estate, the right of the survivor to share in the estate of a deceased husband or wife is found in section 5087, Code of 1906 (Hemingway’s Code, section 3375), which is as follows :
“If the will of the husband or wife shall not make any provision for the other, the survivor of them shall have the right to share in the estate of the deceased husband or Avife, as .in case of unsatisfactory provision in the Avill of the husband or wife, for the other of them; and in such case a renunciation of the will shall not be necessary, but the rights of the survivor shall be as if the will had contained a provision that was unsatisfactory, and it had been renounced.”
Under section 5086, Code of 1906 (Hemingway’s Code, section 3374), the right of the surviving husband or wife to determine for himself what constitutes an unsatisfactory provision in the Avill of the deceased husband or Avife is without restriction- or limitation, and when the survivor has elected to renounce the will of the deceased husband or wife, under the provisions of this section, the decedent, so far as the suiwivor’s rights are concerned, becomes intestate, and the rights of the survivor are such as would exist in case of total intestacy, subject only to the •limitation that in no case shall the survivor take against [137]*137the "will a greater share than one-half of the devised property.
Under the provisions of section 5087, Code of 1906 (Hemingway’s Code, section 3375), the survivor, who has no separate estate, and for whom no provision is made in the will of the deceased husband or wife, is placed in the exact position of one who has renounced a will containing unsatisfactory provisions for the survivor, and, by virtue of the terms of the statute, such survivor may elect to share in the estate of the deceased husband and wife as in case of unsatisfactory provision in the will, and we do not conceive that, under the provisions of this section, the right of the survivor to elect to share in the estate of the deceased husband or wife is in any respect dependent upon the caprice, desire, or will of the decedent. • The language of the statute is plain and positive, and under its terms the survivor is guaranteed the absolute right, at his or her option, to share in the entire estate, and this right is paramount to the rights of devisees under the will. This statute is in effect a limitation upon the right of the husband or wife to dispose of his or her property by will, and every will of a husband or wife is executed subject to the statutory right of the survivor to renounce it in case of unsatisfactory provision, or to claim the statutory share or interest in the devised property in case there is no provision for the survivor, and this statutory right of renunciation or election, as the case may be, is not affected or defeated by the fact that decedent was partially intestate, and that under the laws of descent and distribution other property Avas cast upon the survivor as the sole heir of decedent.
We conclude, therefore, that, since appellee has elected to stand upon his statutory rights and claim an interest in the devised lands, he is entitled to be adjudged and decreed to be the owner of an undivided one-half interest in the lands described in the bill and the decree, and therefore the decree of the learned chancellor is affirmed.
Affirmed.