Tiser v. McCain

Citations

• 113 Miss. 776
• 74 So. 660

Syllabus

<p>1. Partition. Exempt property of decedent. Use by widow. Statute.</p> <p>Under section 1669, Code 1906, providing that “where a decedent leaves a widow to whom, with others, his exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during her widowhood, as long as it is occupied “or used by the widow, unless she consents,” the words “or used” following the words “so long as it is occupied” clearly intend that it is not necessary for the property to be physically occupied, but so long as the income of the property is used for the support of the widow, whether she be residing upon the prop’erty or not, that the property cannot be partitioned without her consent.</p> <p>2. Partition. Exempt property of decedent. Consent of widow.</p> <p>There are two methods of partition in this case, one by written agreement where the parties are all adults,- and the other by proceeding under statute in the chancery court; and until one of these methods has been used and the property divided, the widow is not bound by a consent not obtained for a valuable consideration, but at any time may. withdraw her consent, provided some element of 'estoppel does not intervene.</p> <p>3. Partition. Exempt property of decedent. “Use by widow</p> <p>Where an heir of a decedent as administrator, without any authority as such, leased exempt property descending to deceased’s widow and others, which under Code 1906, section 1659, so long as occupied hy, or used hy her, could not he partitioned without her consent. Such a lease could only he treated as valid on the theory of its being from the heirs as such, so that the tenant’s possession must he treated as the widow’s as well as the other heirs’ possession; and hence the property did not cease to be used by the widow within the meaning of the statute.</p>