Bruce v. Bruce

• Decision Date: 20 February 1928
• Docket Number: 219
• Citation: 3 S.W.2d 6,176 Ark. 442
• Parties: BRUCE v. BRUCE
• Court: Arkansas Supreme Court

3 S.W.2d 6

176 Ark. 442

BRUCE v. BRUCE

No. 219

Supreme Court of Arkansas

February 20, 1928

Appeal from Polk Circuit Court; B. E. Isbell, Judge; affirmed.

Judgment affirmed.

J. I Alley, for appellant.

Minor Pipkin, for appellee.

OPINION

MEHAFFY J.

A. M. Bruce and Mrs. L. B. Bruce were married several years before the beginning of this suit, and lived together about five years. Prior to the marriage Mrs. Bruce owned in her own right a small tract of land on which she lived as her homestead before their marriage, and, after she and Mr. Bruce disagreed, she moved back to this place, and lived there until the death of A. M. Bruce, which occurred in October, 1926. Both parties had been married previously and had grown children, but there were no minor children, and no children as the result of this marriage.

Prior to the death of A. M. Bruce he had arranged with his grandson, J. A. Bruce, to move in with him and take care of the place and take care of him. This grandson moved in about a year before Mr. Bruce died.

Soon after the death of A. M. Bruce his widow administered on the estate, took charge of the personal property, and demanded possession of the lands. And when the possession of the lands was denied her, she brought this suit. She also sued for damages for the use of the land.

There is no evidence tending to show who was at fault or who caused the separation. Mrs. Bruce herself testified that they could not agree, but that she visited him after she had left him, and he had told her that she had a home there whenever she wanted to come back, but that she did not go back there to live until after his death.

The case was tried before the court sitting as a jury, and a judgment was rendered for plaintiff, L. B. Bruce, for the recovery and possession of the lands, describing them, and for $ 40.25 as damages for the unlawful detention of said lands up to the date of the judgment, and at the rate of $ 116 a year from date of judgment until defendant yielded possession of said lands. The defendant objected and saved his exceptions, and filed motion for a now trial, which was overruled, and the case is here on appeal.

There is practically no dispute about the facts, and, as stated by counsel for appellant, "The first question in this case that presents itself is, what is meant by the constitutional provision to the effect that said widow has no separate homestead in her own right?"

Article 9, § 6, of the Constitution of Arkansas reads as follows:

"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 during her natural life. Provided, if the owner leaves children, one or more, said child or children shall share with said widow, and be entitled to half the rents and profits till each of them arrives at twenty-one years of age; each child's rights to cease at twenty-one years of age, and the shares to go to the younger children, and then all to go to the widow; and provided, said widow or children may reside on the homestead or not. And, in case of the death of the widow, all of said homestead shall be vested in the minor children of the testator or intestate."

Appellant argues that the widow is not entitled to claim homestead out of the lands, because it is alleged she abandoned her husband and lived apart from him on a homestead belonging to her; that she owns and occupies a separate homestead in her own right, and that therefore she cannot claim one from her deceased husband. This is the only question in the case; the question whether she is entitled to a homestead in the lands of her deceased husband.

This is not claimed as the homestead of a wife or the head of a family, but is claimed as the widow's homestead, and, of course, her right to a widow's homestead, if it accrued at all, accrued upon the death of her husband.

This court said, in a case where a woman owned a separate homestead and lived on it several years before the death of her husband: "The only question addressed to us for determination is whether the ownership of the lands in her own right, and upon which she and her husband lived for some years in their early married life, bars her claim of homestead in his lands, which they had occupied as a homestead for many years next preceding and up to his death."

The difference between that case and this, of course, is that, in the present case, the wife was living on her own place at the time of the death of her husband, and in the case quoted from they had lived on her place but had moved back to his. But in each case she owned it in her own right, and we do not think that the facts in this case would preclude her from claiming a homestead in the lands of her deceased husband.

In the same case above quoted from, the court said:

"In construing the language of this section, this court, in Thompson v. King, 54 Ark. 9, 14 S.W. 925 said: 'The object of this section 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.' * * * The separate homestead referred to in the section of the Constitution just quoted is not the separate homestead of the wife, but of the widow, that is, the...