Thompson v. King

Citation14 S.W. 925,54 Ark. 9
PartiesTHOMPSON v. KING
Decision Date29 November 1890
CourtSupreme Court of Arkansas

APPEAL from Monroe Circuit Court in Chancery, M. T. SANDERS, Judge.

Action by Maggie Thompson, a minor, against her stepfather, William King, and his children. Romey and Ida King, for an accounting of her share in the rents and profits accruing from her mother's homestead estate in certain land of which she died seized jointly with another. The court sustained a demurrer to the complaint.

Reversed and remanded.

John C Palmer and J. S. Thomas for appellant.

1. The curtesy of King is not superior to the homestead right of the children, but the latter, which is a constitutional right must prevail. Art. 9, secs. 3, 6, 10, const. 1874. A married woman has a homestead under these sections in her own right and it descends to her children on her death. See 13 S.W 924; 8 S.W. 793; 46 Ark. 159.

Stephenson and Trieber for appellees.

The curtesy might well prevail over the homestead right of the children. 67 Ill. 55; Thomps. on Homest., secs. 592 to 595, 513 et seq.; 8 S.W. 793; 96 Mo. 142; 44 Tex. 179; 47 Ark. 175.

OPINION

BATTLE J.

Mary Thompson was the owner in fee simple of one undivided half of the southwest quarter of section 36, in township 1 north, and in range 3 west. She was the mother of Maggie Thompson. Three years after the birth of Maggie she married William King. Two children, Romey and Ida King, were the issue of this marriage. At the time of her marriage she occupied this land as her homestead, and after her marriage she and her husband and children continued to occupy it in the same manner so long as she lived. She died intestate, leaving her husband surviving, and Maggie Thompson and Romey and Ida King her only heirs. The heirs are minors. Maggie claims that she and the other heirs are entitled to hold the land as a homestead during their minority, it being the homestead of their mother and her husband and children at the time of her death, and her mother having died the owner thereof. On the other hand William King, the husband, claims the right to hold it as tenant by the curtesy. Have the children the right to hold it as the homestead of their mother during their minority?

No dates of marriage, births or deaths are given in the record. It is conceded, however, by all the parties that the right of the children to hold the land in controversy as a homestead depends on the constitution of 1874.

Section 2 of article 9 of the constitution provides: "The personal property of any resident of this state, who is married or the head of a family, in specific articles to be selected by such resident, not exceeding in value the sum of five hundred dollars in addition to his or her wearing apparel, and that of his or her family, shall be exempt from seizure on attachment, or sale on execution, or other process from any court on debt by contract." In construing this section in Memphis & Little Rock Ry. v. Adams, 46 Ark. 159, this court held that the expressions, married or the head of a family, "are not synonymous, or mere equivalents the one for the other;" and that all of either sex, who are either married or the heads of families, are entitled to the exemption therein allowed.

The same expression is used in section 3 of the same article. It provides that the homestead of any resident of this state who is married or the head of a family, shall not be subject to the lien of any judgment or decree of any court, or sale under execution, or other process thereon, except as therein provided. The expression, "who is married or the head of a family," is used in both sections in the same sense. The objects of both are alike, and there is no good reason why the same class of persons should not be entitled to the benefits of both. The object of the third is to protect the home of the married and the family against seizure or sale, and no reason can be advanced why the land of the wife occupied as the home of the husband and his family should not be protected as well as the land of the husband should be when it is the homestead.

Section 6 provides what disposition shall be made of the homestead when the owner dies. It provides: "If the owner of a homestead die, leaving a widow, but no children, and said widow has no separate homestead in her own right, the same shall be exempt, and the rents and profits thereof shall vest in her...

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35 cases
  • Sulcer v. Northwestern Nat. Ins. Co. (of Milwaukee, Wis.)
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    • Arkansas Supreme Court
    • June 5, 1978
    ...of her husband. Bruce v. Bruce, 176 Ark. 442, 3 S.W.2d 6; Wilmoth v. Gossett, 71 Ark. [263 Ark. 589] 594, 76 S.W. 1073; Thompson v. King, 54 Ark. 9, 14 S.W. 925. In Bruce, the difference between the homestead of the wife and the homestead of the widow is emphasized. See also, Stone v. Stone......
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