Howze v. Hutchens

• Court: Arkansas Supreme Court
• Writing for the Court: Minor W. Millwee, Justice.
• Citation: Howze v. Hutchens, 209 S.W.2d 286, 213 Ark. 52 (Ark. 1948)
• Decision Date: 15 March 1948
• Docket Number: 4-8480
• Parties: Howze v. Hutchens

209 S.W.2d 286

213 Ark. 52

Howze v. Hutchens

No. 4-8480

Supreme Court of Arkansas

March 15, 1948

Appeal from Washington Chancery Court; John K. Butt, Chancellor.

Affirmed.

Charles D. Atkinson and Charles W. Atkinson, for appellant.

Leonard F. Greenhaw, Karl Greenhaw and Lee Seamster, for appellee.

OPINION

Minor W. Millwee, Justice.

W. P. Hutchens died testate in Washington county Arkansas, in 1932 survived by his widow, P. E. Hutchens, and four children. Under the terms of his will, which was duly probated on July 7, 1932, W. P. Hutchens devised and bequeathed to his wife, P. E. Hutchens, his 104 1/2 acre farm and the use of all personal property during her lifetime. The will further provided that upon the death of the life tenant P. E. Hutchens, the remainder of the estate should be shared equally by the four children, but only after Edith Hutchens the youngest child, was first given the sum of $ 3,000 out of such remainder.

Edith Hutchens was living on the 104 1/2 acre farm with her parents at the time of her father's death. After the death of W. P. Hutchens, Edith Hutchens married appellant, Henry Howze, and they resided in Texas until her death, without descendants, on May 15, 1942. Mrs. P. E. Hutchens, the life tenant, who is now 80 years of age, has resided on the lands since the death of her husband. She has used up all the personal property left by the will and there only remains the 104 1/2 acre farm.

Mrs. P. E. Hutchens and the three surviving children joined as party plaintiffs in this suit to partition and sell the lands. Appellant, Henry Howze, was made a party defendant. After setting out the facts above recited, the complaint of appellees alleged: "That all the interest of Edith Hutchens Howze in said real estate was an interest in remainder in said premises, and that she died before the death of the life tenant and was never at any time seized of an estate of inheritance in or to said lands; that the defendant, Henry Howze, her surviving husband, has no interest in said real estate by curtesy or in any other manner; that upon the death of the plaintiff, P. E. Hutchens, the owner of the life estate, the title to said real estate will vest and be owned by the other plaintiffs who are now the sole owners of the remainder therein."

In his answer, appellant admitted the facts as above stated, but denied that appellees were sole owners of the lands and alleged that under the terms of the will of W. P. Hutchens, deceased, he became the owner of an undivided one-third of the $ 3,000 bequest to his deceased wife and an undivided one-third interest for life in the remainder of said estate. Appellant also prayed that the lands be partitioned and sold, and that his share of the proceeds be paid to him.

The trial court found that appellant had no interest in the 104 1/2 acre tract of land by curtesy, or otherwise, inasmuch as his deceased wife, Edith Hutchens Howze, was never seized of an estate of inheritance therein during her lifetime. A decree was entered quieting and confirming title to the lands in appellees and ordering sale of the property for the purpose of partition among appellees according to their respective interests.

The estate or interest of a husband in the property of his deceased wife, who dies intestate, is governed by Act 313 of 1939, which was in effect at the time of the death of Edith Hutchens Howze. Sections 1, 2, and 5 of said Act read as follows:

"Section 1. Section 4422 of Pope's Digest of the Statutes of Arkansas is amended to read as follows: 'Upon the death of a married woman, her husband shall be entitled to the following portion of her estate, undisposed of by her will: one-third of her [real] property for life and one-third of her personal property absolutely where she leaves descendants; one-half of her real property in fee and one-half of her personal property absolutely where she leaves no descendants; except that where she leaves no descendants, as to the lands in which her estate is ancestral the husband shall be entitled to one-third of her real property for life and also except where she leaves no descendants as against creditors, the husband shall be entitled to one-third of her real property for life and one-third of her personal property absolutely.

"Section 2. The rights of the surviving husband in his wife's estate shall be known as curtesy and shall be assigned to him after death of the wife and at the time and in the manner provided by law of the assignment of dower to a widow. . . .

"Section 5. Legislative Intent. The purpose of this measure is to give a surviving husband the same interest in the deceased wife's estate as a widow now has in the estate of her husband, so far as § 7 of Art. 9 of the Constitution permits."

We have omitted copying §§ 3 and 4 for the reason that they deal with the effect on dower of murder of a spouse and the extension of dower to the surviving spouse of an alien. These sections in effect reenact §§ 4397-4399, Pope's Digest, to make them applicable to the husband as well as to the wife.

For reversal of the decree it is earnestly insisted that the trial court erred in construing Act 313, supra, as requiring seisin, or the right to possession of the remainder interest, in Edith Hutchens Howze as a prerequisite to appellant's right to take under the statute. It is argued that, since § 1 of the 1939 Act does not mention seisin or the words, "of which she died seized," it must be concluded that the Legislature intended to eliminate this requirement, which is an essential element of the right of curtesy at common law. If § 1 stood alone, we would agree with appellant's interpretation of the Act. The rule is well established that in construing a statute the legislative intent should be ascertained by construing every part of the Act and giving effect thereto if possible. Nixon v. Allen, 150 Ark. 244, 234 S.W. 45; Ledbetter v. Hall, 191 Ark. 791, 87 S.W.2d 996.

In Graves v. McConnell, 162 Ark. 167, 257 S.W. 1041, the court said: "In construing a statute it is the duty of the court to construe it as a whole and give some meaning to every word, if possible, and, in order to effectuate the intent of the Legislature, the court may eliminate or correct errors in a statute, or reject certain words and substitute others, when, by so doing, it only reconciles apparent inconsistencies of language, and, on the whole, accomplishes the purpose which the Legislature had in mind in the enactment of the law. Garland Power & Development Co. v. State Board, 94 Ark. 422, 127 S.W. 454; Rayder v. Warrick, 133 Ark. 491, 202 S.W. 831; Kindricks v. Machin, 135 Ark. 459, 205 S.W. 815; Summers v. Road Imp. Dist., 160 Ark. 371, 254 S.W. 696."

In Graves v. Burns, 194 Ark. 177, 106 S.W.2d 602, this court held that absence of the words "or their descendants" was an unintentional omission from a statute on descent and distribution and the words were supplied in order to carry out legislative intent.

It is observed that § 1 of Act 313, supra, amends § 4422 of Pope's Digest, which is Act 149 of 1925. The 1925 Act abolished curtesy in this state. Ward v. Pipkin, et al., 180 Ark. 855, 22 S.W.2d 1011. While curtesy was abolished by this Act, it was expressly recreated in the 1939 Act if effect is to be given to § 2, which specifically provides that the right of a husband to property of his deceased wife "shall be known as curtesy," thus bringing the common law term back into use. The right of the husband, therefore, is a curtesy right although the portion and amount he may take differs from the common law right just as dower, formerly operative as a common law doctrine, still remains dower under our statutes. Section 5 of the Act then states that its...