Brown v. Brown

• Decision Date: 08 July 1912
• Citation: 149 S.W. 330,104 Ark. 313
• Parties: BROWN v. BROWN
• Court: Arkansas Supreme Court

149 S.W. 330

104 Ark. 313

BROWN v. BROWN

Supreme Court of Arkansas

July 8, 1912

Appeal from Monroe Chancery Court; John M. Elliott, Chancellor affirmed.

Decree affirmed.

H. A Parker, for appellant.

1. This is a clear case of gift. 63 Ark. 100, 44 P. 126; 10 La. 85.

2. Appellee had no homestead right. 21 Cyc. 468; 99 Va. 582.

3. As to who is entitled to a homestead, see 27 Ark. 648; 71 Id. 206; 66 Id. 382; 21 Cyc. 466; 37 So 734. It extends to grandchildren. Cases supra.

Thomas & Lee, for appellees.

1. The widow was entitled to the homestead. 57 Ark. 242; 71 Id. 594; 43 N.H. 308; 40 Id. 249; 29 Ark 280; 46 Id. 159; Thompson on Homest. & Ex. §§ 73, 77; 94 Ark. 107.

2. No liens valid against the homestead are valid except laborers' or mechanics,' and in such cases the law must be followed. Kirby's Dig., § 4981; 32 Ark. 59.

OPINION

MCCULLOCH, C. J.

Plaintiff Hattie Brown, instituted this action in the chancery court of Monroe County, praying that her homestead and dower in the real estate of her deceased husband, R. H. Brown, be allotted and set apart to her. R. H. Brown died in July, 1909, leaving the plaintiff, his widow, and defendant, Hugh Brown, a son about thirty-seven years of age, and the other defendants, his grandchildren, as his only heirs at law. He owned at the time of his death the east half of four contiguous lots in the town of Brinkley, Arkansas; a lot in the town of Cotton Plant, Arkansas, and eighty acres of farm land in Prairie County. He and the plaintiff had intermarried about ten years before his death, and occupied the lots in the town of Brinkley as his homestead. There was a dwelling house on the south end of the lots, which they occupied as a home, but this house was blown away in a cyclone in March, 1909. Brown rebuilt his home, and also caused to be built on the north end of the lots another house for the occupancy of his son and grandchildren, who were living with him.

All of the heirs above named were made defendants in the action, and they filed an answer, alleging that plaintiff had abandoned her husband prior to his death and was not living with him as his wife; that she had a homestead in her own right at the town or village of Surrounded Hill, in Prairie County; and also that R. H. Brown had made a gift to them of the north half of the Brinkley lots on which the house in which they lived was situated; defendant Hugh Brown filed a cross complaint, alleging that he had contributed the sum of $ 125 for labor and material in constructing the two houses on the Brinkley lots after the cyclone had destroyed the dwelling house, and he prayed for reimbursement for the sum.

On the final hearing of the case the chancellor found that the Brinkley lots, all of them together, constituted the homestead of R. H. Brown; that the plaintiff was his widow, and was entitled to have said homestead set apart to her and dower in the other property, and a decree was entered accordingly.

There is some testimony tending to show that plaintiff did not remain at home with that constancy due from a wife, but it is not sufficient to establish an abandonment of her husband's bed and board. Even if there had been such desertion, it did not amount to a forfeiture of the widow's homestead right. Duffy v. Harris, 65 Ark. 251, 45 S.W. 545. Whether the same rule applies as to dower we do not decide, for, as before stated, the evidence does not establish an abandonment by the wife.

Nor is there any proof that plaintiff had selected and occupied a separate homestead on her own property at Surrounded Hill, so as to exclude her from the benefit of her husband's homestead.

"The separate homestead referred to in the section of the Constitution just quoted," said this court in Wilmoth v. Gossett, 71 Ark. 594, 76 S.W 1073, "is not the separate homestead of the wife, but of the widow; that is, the separate homestead of the widow selected by her on her own lands after the death of her husband (for she is not the widow until then.)" See, also, Davenport v....