Garabaldi v. Jones

• Decision Date: 22 January 1887
• Parties: GARABALDI, Adm'r, <I>v.</I> JONES and others.
• Court: Arkansas Supreme Court

2 S.W. 844

GARABALDI, Adm'r,v.

JONES and others.

Supreme Court of Arkansas.

January 22, 1887.

Appeal from chancery court, Pulaski county.

Suit to enjoin sale by an administrator of homestead lands purchased by complainants. Decree granting injunction. Defendant appeals.

E. W. Kimbell, for appellant. Z. P. H. Farr and Blackwood & Williams, for complainants and appellees.

BATTLE, J.

On the eleventh of August, 1881, appellees filed their complaint in the Pulaski chancery court against appellant, as administrator of the estate of James Anderson, deceased, alleging that the appellee, Martha E. Jones, wife of John T. Jones, on the eleventh of January, 1879, purchased of the widow and heirs of James Anderson, deceased, the S. W. ¼ of the N. E. ¼, and the fractional N. ½ of the S. W. ¼, and the fractional S. ½ of the N. W. ¼, in section 30, in township 3 N., and in range 15 W., and the N. E. ¼ of the N. W. ¼, and the N. W. ¼ of the N. E. ¼, in section 4, in township 1 N., and in range 13 W.; that the said James Anderson was, at the time of his death, residing on and claiming as his homestead the S. W. ¼ of the N. E. ¼, and fractional N. ½ of the S. W. ¼, and fractional S. ½ of the N. W. ¼, section 30, in township 3 N., and in range 15 W., and containing 160 acres; that the above lands, after the death of Anderson, were by the probate court of Pulaski county set aside to Lucy Anderson, the widow of James Anderson, as her homestead; that the said Lucy, and the heirs of said James Anderson, all of whom were of full age, conveyed said lands to appellee Martha E. Jones; that James Garabaldi, the administrator of the estate of James Anderson, had obtained an order of the Pulaski probate court to sell said lands to pay the debts of said estate, and had advertised the lands for sale; that James Anderson died seized and possessed of other lands, which had not been conveyed by his heirs, and were amply sufficient to pay all the debts probated against his estate. Appellees prayed that appellant be restrained and enjoined from selling the lands purchased by them from the widow and heirs of James Anderson, deceased, and be compelled to sell the lands belonging to the estate of Anderson which have not been sold by his widow and heirs, and for general relief. An order was made by the chancellor restraining appellant, temporarily, from selling the lands claimed by the appellees. Appellant answered, saying that a portion of the lands alleged by appellees to belong to the estate of Anderson, and to have not been sold, had been sold by Anderson in his life-time, and that the remainder had been sold for taxes, and were not worth redeeming, and that the time for redemption had expired before appellant was appointed administrator; that the widow and heirs had, in 1879, conveyed the lands in question to the appellee Martha E. Jones; that there are unpaid debts of Anderson, contracted while the constitution of 1868 was in force, probated against his estate; that there are no assets belonging to his estate to pay these debts, except the lands in question; that in 1879 the widow removed from these lands, with no intent of returning or claiming them as a homestead; that she had acquired a home and residence in a distant part of the state, and had fully and forever abandoned any homestead right she may have had in the lands conveyed to appellees; and that the probate court of Pulaski county, having full jurisdiction, had ordered these lands to be sold to pay the debts probated against Anderson's estate, and remaining unpaid. Appellees demurred to the answer, which was sustained, and the court decreed in favor of appellees, making the injunction as to the lands claimed as the homestead of Anderson perpetual, and dissolving it as to all other lands; and appellant appealed.

The constitution of 1868 ordained as follows: "If the owner of a homestead die leaving a widow, but no children, the same shall be exempt, and the rents and profits thereof shall accrue to her benefit during the time of her widowhood, unless she be the owner of a homestead in her own right. The homestead of a family, after the death of the owner, shall be exempt from the payment of debts, in all cases, during the minority of his children, and also so long as his widow shall remain unmarried, unless she be the owner of a homestead in her own right."

Section 6 of article 9 of the constitution of 1874 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, that if the owner leaves children, one or more, said child or children shall share with said widow, and be entitled to half of 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 the case of the death of the...