Sykes v. Sykes

49 Miss. 190

• Court: Mississippi Supreme Court
• Decided: October 15, 1873
• Status: Published

Opinion

Simeall, J.,

delivered the opinion of the court:

Some of the property out of which Mrs. Sallie A. 0. Sykes claimed dower, was occupied by tenants, under leases made by her husband in his lifetime, and which had not expired when she made her application. The “ fourteenth section plantation ” was occupied by Jas. B. Sykes, one of the decedent’s sons, under an agreement of partnership in planting, which by its terms, was to continue, notwithstanding the death of the father, and which has yet several years to run.

The questions for consideration and decision, are, the rights of the widow to dower in the property under leases, and the plantation, occupied by Jas. B. Sykes, under the partnership agreement.

Several cases have been considered in this court under the dower act of 1857. Prior to the revision of 1857, the rights of the dowress were substantially as at commonlaw. That statute restricted her claims to the lands, etc., of which the husband died seized and possessed, and also to such lands as had been conveyed by the husband during the coverture “ mala fide,” or not for a valuable consideration, and whereof the widow had not relinquished her right of dower.” This is in part a negative and in part an affirmative statement of her claim. The language of the statute is; “ Of one-third part of all the lands, tenements and hereditaments of which her husband died seized and possessed, or which he had before conveyed, otherwise than in good faith, and for a valuable consideration, and whereof the widow had not relinquished,”' etc. It has been laid down in the construction of this statute, that the claims of the widow shall be no further abridged than is clearly and plainly provided for by the terms of the statute, Jiggitts v. Jiggitts, 40 Miss. Rep., 719; Hinds v. Pugh, 48 Miss. Rep., 272. The former case had reference to a conveyance, alleged to be mala fide. The latter, and the case of Pickett v. Buckner & Newman, 45 Miss. Rep., considered the character of conveyances within the intendment of the statute, with reference to “ valuable considerations ” which would bar the dower. Dower may be cut off in these modes ; First, by a joinder of the wife in a conveyance by the husband, acknowledged by her on privy examination apart from him, or a separate deed of relin~ quishment. Art. 32, Rev. Code 1857, p. 313. Secondly, by a conveyance of the husband, in good faith, for-a valuable consideration. The enquiry is restricted to the lands, tenements and hereditaments of which the husband died seized and possessed, and to conveyances in whioh she did not join or- make separate relinquishment, as to the consideration and lemafides,

It would seem to be clear, looking to the several statutes of pari maievia, that the “ conveyance ” meant must be of the freehold, such as would destroy the seizin of the husband» If, therefore, the husband carved out of his estate in fee, a term of years, which is but a chattel interest,, although the term was outstanding and undetermined at his death, this in no wise broke up his seizin, for the possession of the tenant, would be his possession, and as to such lands he wo.uld die seized. ■

The wife has a claim,, of the same extent, to the lands and tenements of which the husband had seizin a.t the time of his death, which the common law accorded to her. The statute confers npon the husband a restricted power of alienation, viz.: that he may .convey for a valuable con-' sideration. That far it encroaches upon the common law. None of the lands and tenements to which Mrs. Sykes makes claim were conveyed by the husband, so as to interfere with his seizin and bar the dower. The estate of the husb.and mus.t confer a right to the immediate freehold. If, therefore, the husband’s estate be subject to an outstanding freehold estate, which is undetermined at his death, no right of dower attaches. Co. Litt., 32, a ; 1 Green. Cruise, 162, § 8 ; 4 Kent., 38-40. But an estate for years, or other chattel interest, interposes no obstacle, because such interests do not interfere with the seizin, but rather preserves it; possession under the chattel interest, being regarded as the possession of the owner of the fee. Park, Dow., 77; Co. Litt., 32, a; 1 Wash. Real Est., 154.

At the common law, seizin in law was sufficient to sustain the claim of dower. We do not suppose that any special significance is to be attached to the word “ possessed,” in the clause of the statute. “ Lands * * tenements *' * of which the husb.and died seized and possessed.’-’ The statute does not mean that there shall be an actual occupancy by the husband in addition to.' the seizin. The statute is satisfied if the husband died seized of an estate of inheritance, although at the time an outstanding term might be in a tenant, and he in actual possession. Such was- the construction put ujon the North Carolina statute, precisely like ours, in Wier v. Humphries, 4 Ire. Eq. Rep., 278-9; the court1 holding the occupancy of the termor as the possession of the owner of the fee. Similar words, in other statutes, have received the same rendering. 1 Scribner, Dower, 589, et seqr.; Slaughter v. Collins, 44 Geo., 328; Apple v. Apple, 857.

There can be no doubt that, under the statute, the widow might have dower, although the land's and tenements were held adversely to the husband at the time of his death. In Connecticut, the widow is endowable of “ one-third of the lands of which the husband died £ possessed.’ ” The word “possessed” has been construed to be synonymous with ££ seized.” Stewart & Stewart, 5 Conn., 920. In Vermont dower is restricted to land of which the husband died ££ seized.” But whether the words be ££ possessed ” or ££ seized,” or ££ seized and possessed,” they have received the same interpretation, viz.: Seizin of an estate of inheritance in the husband.

But what effect do the articles of co-partnership have on the rights of the widow? The general rule prevailing in the United States, resting, we think, upon the soundest reason, is, that real estate bought with .partnership funds, or put in as capital, for (he use of the joint business, such as manufacturing, is as betwe.en the partners and their joint creditors, impressed with the character of personalty. But 'after the debts are paid, the partners are tenants in common, and dower may be assigned. But in this case the plantation was not bought with partnership effects j nor has the son, except as heir, any title in the land itself, except so far as may be necessary to carry out the agreement.

The substantial stipulations are, that the parties are joint-owners of the .stock and implements; that necessary improvements are to be made on joint account, expenses equally borne, losses equally shared, and profits equally divided. Very clearly, this, is not such an alienation - of the land, as defeats dower-. But how shall the dower be assigned? Shall it be out of the profits ? Shall the widow be let in to share in the fortunes of this planting adventure ? If so, then in case of loss any year, she must pay her part of it. If the profits should greatly exceed the one third of the an--nual value, estimated as rental, should she be entitled to that ? Now, under the analogy of leases made by the husband, can the dower be assigned, so as to impair the partnership contract between the father and son ? It seems to ■ be settled by authority, that the widow cannot take posses-' sion, under an assignment by metes and bounds, until the-' term of the tenant has expired ; but that, in the meantime, she shall have one third of the annual rents, if her right extended to one third of the land. Applying the analogy of that principle, to the farm cultivated by the .son, under the articles of partnership, it would follow, that until the eleven years, the time limited for its continuance, unless shortened by the death of the son, has elapsed, the widow could not enter and occupy under an admeasurement by metes and bounds; but since the partnership agreement was not a conveyance to destroy the husband’s seizin., she should be endowed of one third of the income, assured to the husband. The husband was entitled to one-half the profits, after expenses were paid. The widow would receive the measure of her claim, if she were paid annually, one-third the income assured by the agreement to her husband; that is, one-third of one-half of the profits.

We are not to be understood, as holding that the widow shall be let in as a partner, to the extent of the interest indicated ; but that the son shall conduct the business, under the articles, as between the estate of his father and himself. If loss occur any year, that loss to be sustained by the estate and himself; but if profit accrue, then the widow to share in them. What the widow may realize from year to year, is contingent and uncertain. Perhaps necessarily so, but not more so, than when she is endowed of one-third of the profits, as income of a mill for grinding grain, where in some instances, she has been permitted to run.the mill one-third of the time, and in others, to receive one-third the profits.

The American courts have administered dower, according to the circumstances of the country, and the subject to which it applied, guided by the motive, of providing substantial support for the widow and children. Waste, at the common law forfeited the estate of the dowress; yet in Macauley, executor, v. Dismal Swamp, 2 Rob. Va. Rep., 526. The widow was permitted to. cut and sell a reasonable amount of timber off the dower land; that being the only use to which the estate could be put. Although she could not open a new mine, yet she could take coals or minerals from one already opened. Stoughton v. Lee, 1 Taunt., 402 5 Crouch v. Puryear, 1 Rand, 258,

There were at common law many hereditaments, of which the widow was endowable, which were incapable of division and assignment, as a piscary, mines, a mill; in such instances she was assured a proper part of the income and profits, and thereby was esteemed- as having'the freehold of one-third part of the hereditament. 2 Scribner on Dow., 599.

An estate for years, is no obstaole to a .claim for dower.' In sueh case, the widow is to be endowed of the reservation and a proportional part of the rent. 1 Hill on real property, 134; 1 Scribner, Dow., 361, § 6 ; Herbert v. Wren, 1 Cranch, 380-1; but not in such wise as to interrupt the termor in the enjoyment of the farm.

We think that the widow should be endowed, of a proper proportion of the farm, but not so as to interrupt the partnership arrangement between her husband and his son, not however, to be taken in possession as admeasured, until the occupancy of the son, under the partnership articles terminates ; in the meantime, there should be paid her one-third of one-half of the profits, annually. The widow is also entitled to that proportion of the profits of the farm, since the death of her husband; and to one-third of the rents of the other real estate, from the same date.

, We perceive no error in the decree, except as to the basis of the account in reference to the rents of the farm. It ought to be ascertained what has been the annual income of the plantation, singe the death of the husband, after deducting the expenses, as provided for in the articles of agreement; and one-third of one-half of such nett income should be paid to the widow.

So much of the decree, as relates to the real estate, (except the plantation,) is affirmed. So much of it as orders an account of rents of the plantation, is reversed, and the cause is remanded for further proceedings, in accordance with this opinion,