
    Williams v. Williams.
    [71 South. 300.]
    Partition. Homestead. Effect. Widow’s share.
    
    Under section 5086, Code Í906, authorizing a widow to renounce the provisions made for her in her husband’s will and to elect to take her legal share of his estate, whereupon she is entitled to such part of his estate, as she would have been entitled to if he had died intestate, a widow with one child, upon renouncing her husband’s will, took by descent a child’s share or an undivided interest in the homestead, and the same under section 1659, Code 1906, was not subject to partition during her widow-h.ood without her consent as long as it was occupied by her.
    Appeal from the chancery court of DeSoto county.
    Hon. J. Gr. McGto-wen, Chancellor.
    Harriet Williams excepted to the report of a sale of the homestead, made by W. S. Williams, the executor of Bichard Williams deceased; exceptions sustained and sale vacated and set aside and the executor appeals.
    The facts are fully stated in the opinion of the court.
    
      Lauderdale <& Lauderdale, for appellant.
    
      J. E. 'Holmes and II. F. B. Logan, for appellee.
   -Stevens, J.,

delivered the opinion of the court.

The appeal in this case-is prosecuted by appellant as the executor of the last will and testament of one Bichard William, deceased, and is based upon a decr'ee rendered by the chancery court of DeSoto county sustaining exceptions to the report of a sale made by the executor of the homestead of .the deceased. The record discloses that ' Bichard Williams, by his last will and testament, directed that his executor should take possession of the real property, sell the same, together with his other property, real and personal, for cash at public sale, and, after paying all debts and the expenses of administration, should pay or divide the proceeds of sale amongst his widow, Harriet Williams, appellee herein, and his five children mentioned by name in the will. The widow, in proper time after the death of the testator, renounced the will and thereby elected to take by inheritance in accordance with the statute. The testator, with his wife and minor child, resided upon their country home consisting of the ohe hundred and thirty-five acres of land involved in this suit. This exempt homestead the executor attempted to sell in accordance with the terms and directions of th^ will, and it is to his report of the sale of the homestead that the widow objected, on the ground that ,the same constituted the exempt homestead and that the widow had the statutory right to reside upon this homestead during her widowhood. The court sustained the objections and set aside and vacated the sale attempted to be made by the executor. From this decree the executor appeals, contending that the testator had a right to dispose of his exempt property by will, and that when he has thus made disposition of the homestead the widow no longer has the right given her by section 1659, Code of 1906'.

There is no contention that the widow in this case has a separate estate, and her rights, therefore, are fixed by section 5086, Code of 1906. Under this section the widow is not only awarded a child’s part of the estate in the instant case, but enjoys such statutory rights as are given her by the laws of decent and distribution. So far as her rights are concerned, there is no will. She is accorded the statutory right to renounce the will and thereby brush aside the instrument of writing by which the rights of the other devisees are measured. In thus electing to take an heir’s portion of the- estate, she inherits by decent an undivided interest in the homestead, which, under the express provisions of the statute, “shall not be subjected to partition or sale for partition during her widowhood, as long as it is occupied or used by the widow, unless she consent.” This understanding of the statute was evidently in the mind of Judge Terral when he, in the case of McGaughey v. Eades, 78 Miss. 853, 29 So. 516, employed the following language:

“Where she gets nothing by the will, or where the Revise to her is unsatisfactory, and she renounces the will, she takes a child’s part of.his estate; but where she takes a legacy under the will, and the will is expressly made in lieu of the allowance of one year’s provisions and all exemptions, she may not, without renouncing the will, take the legacy and the year’s provision and other exemptions. ’ ’

The same thought is expressed in unmistakable terms in the case of Gordon v. James, 86 Miss. 719, 39 So. 18, 1 L. R. A. (N. S.) 461. Among general expressions of the court in harmony with this view, Judge Truly observed that the widow in a case of this kind “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 are fixed by the law, which would control if he had died in a state of total intestacy.” The law looks with favor upon the homestead exemption and guards jealously, not only the right of the husband to occupy with his family the home while he is living, but continues to give shelter to his widow during her widowhood, even saying to the creditors that the homestead is sacred ground .and cannot be subjected to their debts.

The case of Nash v. Young, 31 Miss. 134, is relied on ' by appellant. Without expressly approving the announcement of the court in that case, the facts differentiate it from the instant case. The Nash Case dealt largely with personal property which had been specifically devised to parties other than the widow, and when this ease was decided the widow had the right of dower, and in the setting part to her of dower the mansion house was embraced in the portion to be allotted her. Furthermore, in the present case we think section 1659' of our present Code should be so construed as to embrace this case. We think the legislature so intended, and this construction does not materially interfere with the right of the testator to dispose of his exempt property in accord with his wishes.

Affirmed.  