Opinion
No. 31306.
June 11, 1934.
WILLS.
Will devising homestead as particularly described by reference to deed by which land was conveyed to testator held to dispose of all property within description of deed owned by testator at his death, notwithstanding that certain buildings on property described were leased for business purposes.
APPEAL from Chancery Court of Hinds County.
Alexander, Alexander Satterfield, of Jackson, for appellants.
The will itself is definite and the intention of the testator is so clearly expressed by the language used that there is no room for an attempt to vary the actual legal meaning of the will.
Wallace v. Wallace, 114 Miss. 591, 75 So. 449; Ehrman v. Hoskins, 67 Miss. 192; Harvey v. Johnson, 111 Miss. 566, 71 So. 824.
The word "homestead" has a fixed and definite meaning and it does not include property which is a part of the original lot but which has been dedicated to business purposes.
McKeough's Estate v. McKeough, 69 Vt. 34, 37 A.T.L. 275; 29 C.J. 830; 13 R.C.L. 594-595, 598.
Occupancy for the purpose of use in connection with the home and residence is essential to invest the property with the character of a homestead.
Where there is no occupancy for the purpose stated such property ceases to retain its character as a homestead.
Partee v. Stewart, 50 Miss. 717; Coke on Littleton, 4, 6; Thompson on Homesteads, section 100; Ackley v. Chamberlain, 16 Calif. 181; Todd v. Gordy, 28 La. Ann. 666; Acker v. Trueland, 56 Miss. 30; 70 Am. Dec. 348, note.
The leasing of buildings to others not servants of the lessor thereby severs the property so leased from the lessor's homestead even though the building included in the lease is on the same lot and is not divided from the homestead property by a fence or street.
Kaster v. Williams, 41 Ala. 302; Kurtz v. Brusch, 13 Iowa, 371; Hoitt v. Webb, 36 N.H. 158; Wade v. Wade, 7 Baxt. 612; Wilson v. Cochran, 31 Tex. 677; True v. Morrill, 28 Vt. 672; Scheoffen v. Landauer, 19 N.W. 95; Greeley v. Scott, 2 Woods, 657; Casselman v. Packard, 16 Wis. 114, 82 Am. Dec. 710.
A homestead in law means the home place or place of a home and is designated as a shelter over the homestead roof and not as a mere investment in real estate or the rents and profits derived therefrom.
Lyon v. Harden, 29 So. 777, 129 Ala. 643; Norris v. Kidd, 28 Ark. 483; Dickman v. Birk Hauser, 16 Neb. 686, 21 N.W. 396; Jaffery v. McGough, 7 So. 333; Semmes v. Wheatley, 7 So. 430.
The will being unambiguous and the words used having a fixed legal significance, the status of the property at the time the will went into effect determines the property included in the devise.
Page on Wills, par. 1422; Thompson on Construction of Wills, 26 and 31.
Watkins Avery, of Jackson, for appellees.
The devise to Mrs. Maude Todd was specific and as to such devise the will speaks from the date of its execution.
White v. White, 53 S.E. 371, 73 S.C. 261; In re Woodworth's Estate, 31 Cal. 595; Wilts v. Wilts, 130 N.W. 905; Mathis v. Mathis, 18 N.J. Law, 59; Edds v. Edds, 282 S.W. 638.
The authorities are uniform that while a will cannot pass title to property until the death of the testator and therefore does not take effect until the date of the testator's death, that as to specific devise the will speaks from the date of its execution.
40 Cyc. 1424; Construction of Wills by Thompson, page 35; 28 R.C.L. 235, par. 196; Underhill on Wills, sec. 15, page 22.
This honorable court has repeatedly laid down the rule that in determining the intention of the testator evidence may be introduced showing the circumstances and conditions surrounding the testator at the time of the execution of the will.
Keeley v. Adams, 149 Miss. 201, 115 So. 344; Chrisman v. Bryant, 66 So. 779, 108 Miss. 311, 318; Watson v. Blackwood, 50 Miss. 15; Lesche v. Cutrer, 135 Miss. 469, 99 So. 136; Noel v. Jones, 216 S.W. 98, 185 Ky. 835; Fuller v. Fuller, 146 N.E. 174, 315 Ill. 214; Haward v. Hayward, 11 A. 53, 95 Conn. 122.
The technical definition of the word "homestead" under the exemption statutes has no bearing on the will.
McKeough's Estate v. McKeough, 69 Vt. 34; Lusby v. Cobb, 80 Miss. 715; International Harvester Co. v. Bye, 169 N.W. 385.
The erection of the filling station and pig stand on the lots in controversy after the execution of the will did not in anywise prevent title to that property from vesting in Mrs. Maude Todd under the will.
Section 3, Thompson on Construction of Wills.
While it is not the rule in a few jurisdictions, the weight of authority is to the effect that a change, subsequent to the making of the will, in the form of property devised or bequeathed, does not prevent the operation of the provisions of the will and the property, in its changed form, passes to the devisee or legatee.
40 Cyc. 1046.
Argued orally by John Satterfield, for appellants, and by Ralph B. Avery, for appellees.
The appellants filed a bill in chancery to have the will of A.M. Todd, Sr., father of appellants and husband of Mrs. Maude Todd, construed. The will, which was made an exhibit to the bill, reads as follows:
"I, A.M. Todd, of Fondren, Mississippi, of legal age and of sound disposing mind and memory, so hereby make this my last will and testament, expressly revoking all other and former wills and testaments.
"1st. I give, devise and bequeath unto my wife, Mrs. Maude Todd, our homestead at Fondren, Mississippi. This property is more particularly described by reference to a deed from Isham Cade, dated April 29, 1896, and recorded in Book 25, at page 364. Also I give, devise and bequeath unto my wife, Mrs. Maude Todd, Lots seven (7) and eight (8) in Block `G' Ridgelawn Sub-division; it being intended to also will to my wife the same property which was conveyed to me by Mrs. Jessie Sims Lorenz on January 9, 1992, by deed recorded in Book 138, at page 137. And I also will and bequeath unto my wife, all of the household furniture, furnishings and equipment in our homestead.
"2nd. The remainder of my property I give, devise and bequeath, in equal shares to my seven (7) children, Charles Todd, A.M. Todd, Jr., Mrs. Cecile Todd Cummings, Mrs. May Todd Williams, David C. Todd and Thomas B. Todd.
"3rd. I appoint my wife, Mrs. Maude Todd, as executrix of this my last will and testament, waiving the giving of any bond, and waiving, so far as I may, reporting to court, simply desiring that this my last will and testament be presented for probate.
"In testimony whereof, I have signed and declared and published this to be my last will and testament in the presence of H.V. Watkins and Miss M.R. Wilkinson, whom I have especially requested to be the subscribing witnesses to this my last will and testament. This 26th day of September, 1924.
"A.M. TODD, Testator.
"M.R. WILKINSON "H.V. WATKINS."
The chancellor held that this will disposed of all the property owned by the testator at his death within the description of the deed referred to in the will. We think that was a correct and proper construction of the will, because the will does not leave what was intended to be disposed of doubtful under the term "our homestead," but proceeds to a particular description of the property by reference to the deed where a full description is set forth.
The fact that some part of the property contained in the deed passed out of A.M. Todd, Sr., during his lifetime, does not change the property intended to be conveyed by the will. The will was good as to all property which was owned by him at the time of his death contained in the description referred to. It is immaterial that certain buildings on the property described were rented or leased for business purposes.
We are not called upon to determine what the term "our homestead" would include, were no further description contained in the will.
The contention of the appellants in that situation would present for consideration some interesting questions as disclosed by the authorities, but the will here is the exponent of its description of the property devised. We do not deem it necessary to discuss the evidence and the authorities in the light of the conclusion we have reached, and the decree of the chancellor will, therefore, be affirmed.
Affirmed.