Kimbrough v. Powell

108 So. 498, 143 Miss. 498, 1926 Miss. LEXIS 286

Opinion

Cook, J.,

delivered the opinion of the court.

The heirs at law of J. H. Kimbrough, Sr., and his wife, Mrs. L. M. Kimbrough, both deceased, filed a petition seeking to partition or sell for division of the proceeds a. certain tract of land which descended to them as tenants in common. The land was ordered sold, and, upon the filing of the report of the commissioner who- made the sale, the administrator of Mrs. L. M. Kimbrough appeared and filed a petition averring that at the time of her death Mrs. Kimbrough owned a one-sixth interest in the estate of her husband, J. H. Kimbrough, deceased; that her estate is now entitled to a one-sixth interest in the proceeds of the sale of the land involved which was owned by her husband during her lifetime; that the personal property belonging to said estate is insufficient to pay the large amount of claims which had been probated against her estate; and that her estate is wholly insolvent, and prayed that he be made a party to- the proceeding’s, and that the interest of the said Mrs. L. M. Kimbrough in the proceeds of said sale be paid to him as administrator for the benefit of the creditors of her estate. This intervention of the administrator was by consent of the parties, and no point is made on the procedure.

From the pleadings and testimony, it appears that the six hundred forty acres of land involved was owned by, and was the homestead of J. H. Kimbrough, Sr., who died intestate in the year 1921, leaving as his heirs at law, his widow, Mrs. L. M. Kimbrough, and five children, each of whom inherited a one-sixth interest in the tract of land. At the time of his death, J. H. Kimbrough, Sr., and his wife, Mrs. L. M. Kimbrough, were both over the age of sixty ^ears, and had no one else living with them or dependent upon them for support. After Mr. Kimbrough’s death, Mrs. Kimbrough continued to reside in the home on the six hundred forty acres of land, and contracted personal debts which were owing at the time of her death, but she at no time had any family or had anyone dependent upon her for support. From the report of the commissioner, it appears that the value of the six hundred forty acres of land was seven thousand eight hundred fifty dollars, while, upon the proof offered, the chancellor found the value of Mrs. Kimbrough’s one-sixth interest in the one hundred sixty acres constituting the homestead to be five hundred dollars. The chancellor held that the one-sixth interest of the deceased in the one hundred sixty acres constituting the homestead, valued at five hundred dollars, was exempt, and descended to her heirs free from any claim on the part of her creditors, and ordered it distributed pro rata among the heirs at law, but held that her one-sixth interest in the remainder of the proceeds of the sale of the six hundred forty acres of land was not exempt, and directed that this one-sixth interest be paid to the administrator.

From this decree, the heirs have prosecuted an appeal, contending that the entire one-sixth interest of the deceased in the tract of land, which was worth less than two thousand dollars, is exempt and descended free from her debts, while the administrator has prosecuted a cross-appeal contending that no part of this one-sixth interest is exempt.

For the purpose of passing upon the question presented by the direct appeal.and determining the value and quantity of the debtor’s exemption if she be entitled to any at all, we may concede her right to an exemption in the common estate. A debtor can only claim and hold as a homestead not exceeding one hundred sixty acres of land, of the value, including improvements, of not exceeding three thousand dollars, and a debtor who asserts a homestead exemption in an estate in common which exceeds one hundred sixty acres in quantity has no floating claim to an exemption of Ms interest in the entire estate. His exemption in such estate is limited to a homestead of the proper quantity, as well as value, and if the value of the debtor’s interest in the one hundred sixty acres constituting the homestead happens to be worth less than three thousand dollars, this fact does not entitle him to an exemption in the remainder of the estate. Whatever interest he may have in the remainder of the estate may be subjected to the demands of creditors, and this was expressly held in the case of Lewis v. White, 69 Miss. 352, 13 So. 349, 30 Am. St. Rep. 557, where the court discussed this question fully and said:

“The claim to the homestead exemption in property in common is to be regulated and bounded, in extent and value, just as in every other case. The debtor may claim and hold and have spared to him a homestead not exceeding in quantity one hundred sixty acres in the land occupied by him, and in value not exceeding two thousand dollars. If the claim set up shall appear to the creditor excessive in quantity or value, by proper proceedings he may have such excess, if shown to exist, subjected to payment of his debt.

“The tenant in common who claims his homestead exemption in the estate in common has no floating claim to exemption in the entire estate, as must be seen from what has been already said by us. He is to be protected in his occupancy of the homestead of proper quantity and value, but no further. Whatever interest he may have in the remainder of the common property, is salable in satisfaction of demands of creditors in proper cases. What this undivided interest in the remainder of the common estate may be, or may prove to be worth, is a matter of no concern in the examination of the subject now being considered. And so, what the real interest of the debtor in the homestead exemption allowed him may now be worth, or whether it may hereafter prove valueless, comparatively, on partition with the cotenants, are ques tions not involved. Whatever estate the debtor has in the common property outside,of that part claimed as a homestead, may be seized and sold; and, whatever estate the cotenants have in the part claimed as a homestead by the debtor, their tenant in common, remains unaffected, as between him and them, by the recognition and allowance of his homestead in the common property, in the contest between him and his execution creditor.”

We are of the opinion, therefore, that the decree of the court below is correct insofar as it is directed that the proceeds of the sale of the debtor’s interest in all the lands in excess of the one hundred sixty-acre homestead be paid to the administrator for the benefit of creditors, and that, on the direct appeal, the decree must be affirmed,

On the cross-appeal, it is contended that, since the debtor had no family, and had no one dependent upon her for support at any time after she became the owner of the property by inheritance, she was not entitled to any exemption in the common estate, and, consequently, that her entire interest in the proceeds of the sale of the land should be paid to her administrator for the benefit of her creditors. The cross-appellees admit that this contention would have been correct under the statute as it existed prior to the amendment of 1911, which added to the statute allowing an exemption to householders having a family the provision that: •

“Husband or wife, widower or widow, over sixty years of age, who have been exemptionists under this section, shall not be deprived of such exemption because of not having family or not occupying the homestead. ’ ’

In other words, the contention is, that since the widow was over the age of sixty years at the time of the death of her husband, and at the time she became the owner by inheritance of an interest in the property which had been their homestead during the lifetime of her husband, her interest therein was, by virtue of the said 1911 amendment of section 2116, Code of 1906, exempt, although she at no time had a family or anyone dependent upon her.

Tlie decision of the question thus presented involves a consideration of the status .of Mrs. Kimbrough as an exemptionist at the time of and prior to the death of her husband. Under section 2146', Code of 1906, granting exemptions to citizens of the state, it is provided that:

“Every citizen of this state, male or female, being a householder, and having a family, shall be entitled to hold exempt from seizure or sale, under execution or attachment, the land and buildings owned and occupied as a residence by him or her, but the quantity of land shall not exceed one hundred and sixty acres, nor the value thereof, inclusive of improvements, save as hereinafter provided, the sum of three thousand dollars.”

By chapter 225 of the Laws of 1914, which appears as section 1821, Hemingway’s Code, the said section 2146, Code of 1906, was amended by adding the provision that:

A “husband or wife, widower or widow, over sixty years of age, who have been exemptionists under this section, shall not be deprived of such exemption because of not having family or not occupying the homestead.”

It will be noted that the 1914 amendment of this statute does not create or grant an exemption to a husband or wife, or widower or widow, who is over the age of sixty years, but only preserves to them existing exemptions when by reason of the breaking up of families, or the unfortunate infirmities of old age, it becomes necessary Qr desirable for the exemptionist to live alone or leave the homestead. The only exemption granted by this statute is to citizens of the state, male or female, who are householders and have a family, and the exemption extends only to the land and building owned and occupied as a residence by the exemptionist.' Before the enactment of the 1914 amendment of the statute, the right to claim this exemption was lost when the exemptionist moved away from the homestead or was left without a family (Hill v. Franklin, 54 Miss. 632), and the only effect of this amendment'is to remedy this condition. The only ones of the designated class who can claim or derive any benefit from this amendment are those who are over the age of sixty years, and “who have been exemptionists under the statute.” Under the statute only those who are householders and have a family can qualify as an exemptionist, and the exemption applies only to “the land and building owned and occupied as a resident by the ex-emptionist. ” To be an exemptionist, or to be entitled to claim an exemption in land, the debtor must both own and reside upon the land, and must be a householder and have a family. It was expressly so held in the case of Partee v. Stewart, 50 Miss. 717, where, in construing language of an exemption statute which is identical with the language which grants the exemption in the present statute, the court said that:

“The debtor must both own and reside upon the land; must be a householder, and have a family. . . . The elements which distinguish the privilege (including by express words of the statute both 'male and female’) are the ownership of the land, [and] residence upon it with a family. ”

The decisive question then is, Did Mrs. Kimbrough, at the time of the death of her husband, have any exemption rights in the homestead which might be preserved to her. by reason of the fact that she was over the age of sixty years ? We think not. She did not own the homestead or any interest therein until the death of her husband, and, consequently, she was not an exemptionist therein. At the time she acquired an interest in the land she had no family which would entitle her to assert an exemption as against her personal debts. During the lifetime of her husband she had the right to occupy the homestead, and a veto power against the conveyance of it by him without her consent, but this was not a property right. Gatti v. Supply Co., 77 Miss. 754, 27 So. 601. True it is that during the life of her husband the homestead could not be subjected to her personal debts, but this was not because of any right of exemption therein, but because she did not own it. In the case of Partee v. Stewart, supra, it was held that the homestead may be established upon the separate property of either the wife or the husband, but the exemption only protects against the debts of the owner thereof.

It follows from the views herein expressed that the decree of the court below must be reversed in so far as it directs that five hundred dollars of the proceeds of the sale of the decedent’s interest in the land be paid to the heirs free from the claims of creditors, and a decree will be entered here directing that said sum be also paid to the administrator.

Affirmed on direct appeal, and reversed on cross-appeal, and judgment here for cross-appellant.

Affirmed on direct appeal.

Reversed on cross-appeal.