Weight v. Coleman , 137 Miss. 699 ( 1925 )

Cook, J.,

delivered the oxiinion of the court.

The appellee, Mrs. Lula Wright Qoleman, filed an original bill in the chancery court of Leake county against her mother, Mrs. S. A. Wright, and the other heirs at law of John E. Wright, deceased, father of the complainant. The bill alleged the relationship of the parties, and charged that since the death of the husband and father, John E. Wright, Sr., two of the sons, John E. Wright, Jr., and Floyd Wright, have died, leaving certain heirs, who were made parties defendant to the bill; that the widow, Mrs. S. A. Wright, and the other parties to the suit owned the lands described in the bill as tenants in common; that for many years after the death of John E. Wright, Sr., his widow continued to live upon the land, but that in the latter part of the year 1919 the widow became physically unable to wait upon herself and to look after the place, and that it became necessary for the children to devise some plan whereby one of the children would take charge of the mother, and, being unable to agree, finally submitted the matter to arbitration; copies of the agreement to submit the matter to arbitration and the award of the arbitrators being attached to the bill as exhibits. It is further alleged that, in accordance with the decision of the arbitrators, the complainant took her mother, the defendant, Mrs. S. A. Wright, into her home on January 28, 1920, and has had her there since that time; that the complainant has not received anything for the support or maintenance of her mother, and that the other children and grandchildren, defendants, have refused to contribute anything, although they are able so to do; that the complainant has attempted to get the other children to convey to her their interest in the said land, but without effect, and that she has tried to get her mother to sign a deed to her interest in the land, but that she had refused to do so, notwithstanding the fact that her mother lives with her as a member of her family. The bill further charged that the widow, complainant’s mother, draws a pension from the state, but has contributed nothing toward her care and support; that she no longer lives on the said land, and that the same should be sold under the directions of the court and the proceeds of sale awarded to the complainant in payment of the maintenance and support furnished by her. The prayer of the bill being- that a decree be entered, ordering- a sale of the land by a commissioner to be appointed by the court, and “that the proceeds of the sale be divided among the heirs and adjusting the equities as herein and such other special or general as the court may decree to be just and equitable in the premises. ’ ’

Exhibit B to this original bill is an agreement designating the matters in dispute to be submitted to arbitration, as follows:

“The property of said Mrs. S. A. Wright to be disposed of for her support and for the arbitrators to say where she shall live. ’ ’

The award of the arbitrators, Exhibit A to the bill, was, first, that the homestead was of the value of one thousand five hundred dollars, and, second, “that forty dollars per month be allowed for her care and maintenance, and her medical expense be allowed extra, and that the control and management of her place be in her own hands, as she is mentally capable of doing so, and at her death a title to the place be made to the person caring for her by the heirs of said S. A. Wright at the price above-mentioned. And the expense of caring for.her be counted as payment on the place and, if the expense does not cover the price of the place, the remainder to be paid equally to the heirs, and in case the expense exceeds the price of said place the other heirs are to bear an equal part of same.”

To this original bill the widow, Mrs. S. A. Wright, one of the defendants, interposed a demurrer, setting up as one of the grounds thereof that the land involved was the homestead of said defendant and her deceased husband at the time, and that the bill failed to allege that she had given her consent for the sale of said lands, and that, in fact, she had not given such consent. This demurrer was sustained, and the complainant was granted thirty days within which to file an amended bill.

An amended bill was filed reiterating the charges as to the relationship of the parties, the description of the land, and the interest of the parties therein, and averring that, after some conference between the children it was decided that the mother should live with one of the children, and that, complainant being the only daughter, the mother concluded to live with her, that when the mother left the homestead it was vacant and run down, but that, during the four succeeding years, the rental value had increased by reason of the fact that complainant’s husband had fenced the land, repaired the house, and opened up additional land, but that the rental value was sufficient to pay only a small part of the cost of the support and maintenance of her.mother. The amended bill further avers that the complainant recognizes the homestead right of the widow so long as the lands are occupied or used by the said widow, but charged that said land was not occupied by the widow as a homestead, and was not used by her in the contemplation of the law, and that consequently the said land was subject to sale for partition, and prayed that a decree be granted, directing the sale of the lands and a division of the proceeds among the heirs “according to the law and as their'interest therein may appear, subject to such equities as the complainant may have in the premises for the reasons stated in said bill. ’ ’ This amended bill further prayed that, in the event the court should hold that the lands could not be sold for partition, it should “allow a reasonable sum of money with which to maintain and support her mother, and that, after said sum has been established to the satisfaction of the court, a decree be granted her fixing said amount in fhvor of complainant against the said widow, Mrs. S. A. Wright, and that a lien be fixed against the interest of the said widow in said land to secure the payment of said sum. There was a further prayer that, in the event the court refused to order a sale of the land, the court should fix a definite sum of money as due the complainant for the care and support of her mother, and that the total sum so found to be due be made a charge against the land as a whole; a lien being fixed thereon to secure the payment of said sum.

The defendants answered this amended bill, admitting the relationship of the parties and the ownership of the land, but denying all the material allegations of the bill, and averring that the land was the exempt homestead of the widow, and was not subject to partition. There are many other averments in the answer which show the relation of and feeling between, the parties, but these are not material here. There was a great deal of testimony introduced by both sides. We shall not set out this testimony in detail, or comment thereon further than to say that, if it is true, it shows a state of affairs which is very discreditable to both the complainant and the other children of this aged and infirm widow.

At the conclusion of the testimony the chancellor entered a decree, allowing the complainant the sum of forty dollars per month for the support and maintenance of her mother, which at the time of the trial aggregated the sum of one thousand nine hundred sixty dollars, and decreeing that an equitable lien arising out of the contract and agreement of the paries thereto be established against the interest in the lands of each of the subscribers to Exhibit B to the original bill; these subscribers, other than the complainant, being the widow, Mrs. S. A. Wright, and three of her sons, and also the widow of John R. Wright, Jr., deceased. The decree further provided that this lien should not be enforced during the lifetime of the widow, Mrs. S. A. Wright, and that the decree should not have the force and effect of a decree in personam against any of the defendants.

The chancellor refused to order a sale of the land, and he was correct in so doing. The widow, Mrs. S. A, Wright, one of the defendants, was present in court, objecting to a sale of the land, and the evidence shows that she was over the age of sixty years, and had moved away from the homestead on account of the infirmities of old age, and that the products thereof were utilized by the complainant and her husband in the support and maintenance of the mother. Section 1821, Hemingway’s Code, providing exemptions to householders and heads of families, expressly provides that a “ husband or wife, widower or widow, over sixty years of age, who have been ex-emptionists under this section, shall not be deprived of such exemption because of not having family or not occupying the homestead,” while section 1659, Code of 1906 (section 1391, Hemingway’s Code), provides 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 consent.”

In the case of Tiser et al. v. McCain et al., 113 Miss. 776, 74 So. 660, in construing the latter section, the court said: •

“The object of the statute was to provide a home and a means of support for the widow to prevent her becoming a public charge or becoming a wanderer on the face of the earth without means of livelihood or place of abode, except such as might be offered her by others. 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 property or not, that the prop - erty cannot be partitioned without her consent. ’ ’

The decree of the court below appears to have been based, in part, upon the purported arbitration, but we do not think that, in this suit, any relief can be predicated on any agreement for arbitration or award of arbitrators. The amended bill does not declare upon the arbitration agreement or award. It does not refer to the submission of any issues to arbitrators, and does not refer in any way to the arbitration or the exhibits to the original bill. The validity of the purported arbitration agreement and award was in no way put in issue by the pleadings. The amended bill is not an effort to enforce, modify, or confirm any award of arbitrators, but seeks relief independent of the award and at variance with its terms, and appears to proceed upon the theory that the complainant was entitled as a matter of law to a reasonable allowance for the support and maintenance of her aged mother, and that a court of equity has jurisdiction to fix the amount of this allowance and make it a charge, first, against the interest of all the tenants in common of the homestead, or, if the court should decide that could not be done, then, to make it a charge against the undivided interest of the widow.

The question then arises whether the amended bill'can be upheld upon any alleged right of the complainant to impress a lien upon the homestead for the support and maintenance of her mother, .either upon interests of all the heirs therein, or the undivided interest of the mother only.

Under the common law there is no legal obligation resting upon the adult child to support his needy parent, or upon the parent to support his adult child, but such services between persons occupying such relationships are presumed to be gratuitous and out of a spirit of humanity and affection, and the general rule is that an adult child cannot sue a parent who is a member of his household for support and maintenance in the absence of a contract, express or implied. In 29 Cyc. 1620, the doctrine is announced that:

“Where a parent lives with a child as a member of the latter’s family, and is supported by the child, this fact of itself gives rise to no implication of a promise on the part of the parent to pay for support, and the child cannot recover for what has been done or furnished, unless, of course, there was an express contract of the parent to pay, or a mutual understanding* of the parties that the child is to be paid, for the support and care of the parent, which understanding may be implied from the circumstances of the case and the conduct of the parties.”

In many, if not all, of the states, however, statutes for the relief of paupers and indigent persons impose a duty or obligation upon certain of their kindred to contribute to their support; but this statutory liability can only be enforced in the manner provided by statute. In 26 Cyc. 1620, it is said:

‘ ‘ Under statute, however, it is very generally made the duty of the child, who is able to do so, to support its parents when the latter are helpless and indigent, but the statutory liability can be enforced only in the mode pointed out by the statute.”

The only statute in this state regulating the rights of paupers and the obligation of relatives to support a pauper is section 3571, Code of 1906, section 6188, Hemingway’s Code, which pi*ovides:

“The father and grandfather, the mother and grandmother, and brothers and sisters, and the descendants of any pauper not able to work, as the board of supervisors shall direct, shall, at their own charge, relieve and maintain such pauper; and, in case of refusal, shall forfeit and pay the county the sum of eight dollars per month, for each month they may so refuse, to be recovered in the name of the county; and shall be liable to any person who supplies such poor relative, if abandoned, with necessaries, not exceeding said sum per month. ’ ’

If this statute creates any right in one child who is supporting an indigent parent to sue the other children for contribution, which we do not now decide, the relief is limited to eight dollars per month, to be recovered in the name of the county. This suit, however, is not brought under this statute, and does not assert any right thereunder, and, if any liability exists in this case against any of the defendants, it must be by reason of contract either express or implied. Many of the courts have held that in such cases liability for the support of an indigent parent only arises under an express contract, and the language of this court, in the case of Hutcheson v. Tucker et al., 15 So. 132, seems to be to that effect, but, since there are no facts or circumstances in this record from which the law would imply a promise on the part of the indigent parent or other defendants to pay for her maintenance and care, we express no opinion upon the point. If one child supports the parent at the request of the others, he may, of course, recover from them their share of the expense, but the testimony for this complainant is positive that the other children made no such request of her, but that, on the contrary, they refused to agree to contribute any amount. We recognize to the fullest extent the obligation of an adult child to support his indigent parent; but, where such a parent is being adequately supported by one child, a court of equity is without jurisdiction to fix the amount necessary for such support and compel a contribution thereto by imposing a lien upon the property of the parent or the other children for the payment of the sum so fixed. In such case, in the absence of a contract, express or implied, on the part of such parent or the other children to pay for the support of the .parent, no liability therefor exists against them. Upon the proof in the case at bar the chancellor held, and we think correctly, that there was no personal liability against any of the defendants, and, this being true, it was error to impress a lien upon their property for the payment of the sum fixed by him as being necessary for the support of the parent. Upon this bill of complaint no> relief can be predicated upon the alleged arbitration agreement or award, and, since the proof fails to establish a contract, the bill should have been dismissed.

The decree of the court below will therefore be reversed, and a decree entered here dismissing the bill of complaint.

Reversed and bill of complaint dismissed.