Colum v. Thornton

• Decision Date: 14 February 1916
• Docket Number: 180
• Citation: 183 S.W. 205,122 Ark. 287
• Parties: COLUM v. THORNTON
• Court: Arkansas Supreme Court

183 S.W. 205

122 Ark. 287

COLUM v. THORNTON

No. 180

Supreme Court of Arkansas

February 14, 1916

Appeal from Conway Chancery Court; Jordan Sellers, Chancellor affirmed.

Decree affirmed.

W. P Strait, for appellant.

1. A homestead right is a privilege personal to the widow, which may be abandoned, and which carries to her no legal interest in the estate beyond this right or privilege, and is held upon condition of its being and remaining her home, whether in reality occupied or not. Const. Art. 9, § 6; 105 Ark 652; 95 Id. 256; 79 Id. 412; 102 Id. 668; 79 Id. 410; 48 Id. 230; 65 Id. 68; 72 Id. 476; 65 Id. 68.

2. A widow can not have two homesteads. 71 Ark. 594; 107 Id. 284. The legal domicile of the wife follows that of the husband. When she remarried and moved to his home, she made it her's and thereby abandoned her homestead as the widow of Colum. Cases supra.

Sellers & Sellers, for appellees.

1. It is admitted that a homestead can be abandoned, and that leaves only for determination whether the widow has abandoned the Colum homestead in Argenta. A homestead is not subject to partition; the burden was on appellants to show that it is no longer a homestead and no affirmative proof is required of appellees to show any intention of returning to or asserting any rights whatever over the homestead. 31 Ark. 145; 47 Ark 504. There is no proof of abandonment. Rosa Thornton has collected the rents, paid the taxes and kept up the repairs. Mere absence is not abandonment. 42 Ark. 503; 48 Id. 239. Her right did not cease on remarriage and removal. 100 Ark. 399. The Constitution vests a life estate in her without any restrictions. 21 Cyc. 569; Kirby's Dig., § 3882; 51 Ark. 335; 26 S.W. 628.

OPINION

HART, J.

This is a suit for partition brought by appellees against appellants in the chancery court to divide certain lands situated in Conway County, Arkansas, among the parties according to their respective interests.

Appellants answered alleging that the complaint did not contain all of the lands in which the parties were interested, describing lands in Pulaski County, Arkansas. The lands involved in the partition suit belonged to the estate of R. C. Colum, who died in Argenta, Arkansas, in 1906, leaving his widow, Rosa Colum now Rosa Thornton, and their children. At the time of his death he owned a homestead in Argenta. After he died, his widow, through fear of mob violence to her children, moved to Conway County and has since resided there. Subsequently she married a man named Thornton and now lives with him on his homestead in Conway County. She and her children collected the rents on the Argenta homestead until the children became of age and since that time Rosa Thornton has collected them.

On the trial of the case the chancellor held that, the heirs now being over twenty-one years of age, Rosa Thornton was entitled to the possession of the Argenta homestead for and during her natural life; that she had not abandoned or attempted to alienate it; that being her homestead, it was not subject to partition.

The children and heirs at law of R. C. Colum, deceased, have appealed.

The finding of the chancellor that Rosa Thornton had not abandoned the Argenta homestead nor attempted to alienate it, is fully warranted by the evidence.

It is the contention of appellants that when Rosa Thornton, as the widow of Robert Colum, married J. C. Thornton and went to live with him at his homestead, she, as a matter of law, lost the homestead which she acquired from her first husband. Section 6, article 9, of the Constitution of 1874, which is repeated in section 3882 of Kirby's Digest, is 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 that 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 that 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."

Our Constitution gives the homestead to the widow for life without any restrictions. It is the settled (or life without any restrictions. It is the settled policy in this State that laws pertaining to the homestead right of the widow and minor children, shall be construed liberally in favor of the homestead claimants.

In the case of Davis v. Neal, 100 Ark. 399, 140 S.W. 278, we held that a right of homestead is not lost by a widow who remarries. This case arose under a former homestead law which preserved the homestead...