Nelson v. Franklin

TERRELL, J.:

P. C. Nelson married Etta Franklin in 1934. Both had children by former marriages. They lived for several years in. the home of P. C. Nelson and then moved to the home of Etta Franklin Nelson where they lived until her death in 1941. Prior to her death, she willed this home to her son James M. Franklin by her former marriage.

P. C. Nelson as the surviving husband brought this suit for partition and division of the said home. On final hearing, *695 the chancellor dismissed the bill of complaint and Nelson appealed.

Nelson predicated his right to partition on the ground that his wife was the head of the family, that the home in question was the homestead of the family and could not be alienated by will or deed and that it descended to him and appellee equally from Etta Franklin Nelson.

The chancellor rejected these contentions. It is quite true that the wife may in fact be the head of the family in which event she could not by will of otherwise alienate the homestead but in this case no such showing is made. . The home in question was the separate property of Etta Franklin Nelson, was owned by her and her former husband by the entireties, and she was at liberty to will it to the son of that marriage. We do not overlook the fact that homestead exemption was claimed in the home in question and in the home of appellant where they first lived, but that did not affect the status of the properties. Appellant was the head of the family and was living in the wife’s house at the time of her death.

The judgment appealed from is therefore affirmed.

Affirmed.

BUFORD, C. J., CHAPMAN and ADAMS, JJ., concur.