Cain v. Barnwell

Sykes, J., delivered the opinion of the court. This suit is in reality a companion suit to that of Cain v. Barnwell, which has twice been here on appeal; the first opinion of the court being reported in 120 Miss. 209, 82 So. 65, the second opinion, by Division B, rendered on March 21st, 87 So. 481, not yet [officially] reported. In that case the court held that under sections 5086 and 5087, Code of 1906 (sections 3374 and 3375, Hemingway’s Code), where a husband of a testatrix did not possess a separate estate at the death of his wife, who devised land, [869] constituting the exempt property of both, to others than her husband, and made no provision for the husband in the will, and where there are no children nor descendants of children, the husband is entitled to an undivided one-half interest in the lands devised, and that this right of the husband is in no wise affected or defeated by the fact that the decedent was partially intestate, 'and that the property not disposed of by the.will would pass to the husband as sole heir under the law of descent and distribution in this state, and that this property not devised constituted in value more than one-half of the entire estate of the decedent.- In the case before us the complainants, as brothers and sisters of the deceased, claim that since the husband, the appellee in this case, has elected to take one-half of the devised property, he is not entitled to take over one-half of all of the property, that devised and that not devised, and that these complainants are the next of kin and entitled to the other one-lialf of the property not devised by the will. Section 5086, Code of 1906 (section 3374, Hemingway’s Code), provides that the husband, “upon renouncing, shall be entitled to only one-half of the real .and personal estate of” his deceased wife. This section, however, deals only with the property devised and bequeathed under the will, and has no effect upon property inherited under the laivs of descent and distribution. In construing this statute in the case of Gordon v. James, 86 Miss. 719, 39 So. 18, 1 L. R. A. (N. S.) 461, the court said that the widow “is at liberty to signify her dissent to the will; and, when she has done this, in the eyes of the law the decedent, so far as her rights are concerned, becomes an intestate, and her rights as fixed by the law, which would control if he had died in a state of total intestacy.” In construing this section in the case of Williams v. Williams, 111 Miss. 129, 71 So. 300, it is stated that “Under this section the widow is not only awarded a child’s part of the estate in the instant case, but enjoys [870] such statutory rights as are given her by the laws of descent and distribution.” ' Under this section the appellee was entitled to one-half of the devised property. But this section in nd wise limits or circumscribes his right as sole heir at law to inherit the remainder of the property under the laws of descent and distribution, but limits his right only to one-half of the property devised or bequeathed in the will. The lower court so held, and its decree is affirmed. Affirmed.