Long v. Hoffman
| Decision Date | 20 May 1912 |
| Citation | 148 S.W. 245,103 Ark. 574 |
| Parties | LONG v. HOFFMAN |
| Court | Arkansas Supreme Court |
Appeal from Clay Chancery Court, Western District; Edward D Robertson, Chancellor; affirmed.
Decree affirmed.
J. S Jordan and F. G. Taylor, for appellants.
1. The probate court has no jurisdiction to order the sale of lands of an estate to pay a debt which was never probated. 38 Ark 471; 31 Ark. 539.
2. Where the settlement of an administrator shows that he has funds on hand sufficient to pay all probated debts, the court is without authority to order a sale of the lands of the estate. 46 Ark. 373, and cases cited; 52 Ark. 320.
3. In order to confer jurisdiction to order a sale to pay debts the petition therefor must state an account of all the debts against the estate and of the assets on hand. Kirby's Dig., § 187.
4. A probate court has no jurisdiction to order the sale of the homestead of the decedent. 69 Ark. 1, and cases cited. Removal from a homestead, no matter for how long, will not be considered an abandonment if there is a bona fide intention to return. 48 Ark. 539; 37 Ark. 283; 55 Ark. 55; 56 Ark. 621. See also 96 Ark. 171; 82 Ark. 367; 47 Ark. 445; 29 Ark. 290.
5. The sale in this case having been made within one year after the first offering, it was void. Kirby's Dig., § 200; 52 Ark. 213.
J. L. Taylor and G. B. Oliver, for appellees.
1. The testimony is sufficient to sustain a finding that deceased had abandoned the land as a homestead, and this a husband can do without the consent of the wife. 68 Ark. 76; 81 Ark. 154.
2. Sale was not void because made within one year after the first offering. If so made, it was a mere irregularity which was cured by confirmation. 11 Ark. 12; 52 Ark. 213.
3. The court had authority to order the sale to pay the mortgage debts. 11 Am. & Eng. Enc. of L. 1902, 1159; 18 Cyc. 695 and notes; Id. 822.
OPINION
This is an action instituted in the chancery court by the widow and minor children of S. M. Long, deceased, to cancel a sale by the administrator of said decedent of certain real estate, a part of which, the plaintiffs allege constituted the homestead of said decedent. Cancellation of the sale is sought principally on the alleged ground that the homestead was included, and also on certain other grounds which will be stated later. S. M. Long died on December 6 1906, and was then the owner of a farm about two and one-half miles from Corning, Arkansas, and also owned several lots in the town of Corning, on which was situated a dwelling house and barn. He had owned the farm about fifteen years, and occupied it as his home, but for several years had occupied, alternately, the house in town during a portion of the year and the dwelling on the farm for the remainder. He usually spent the spring and summer on the farm and the fall and winter in town, that being the season for sending his children to school. He kept some of his furniture at each house. In August, 1905, he rented out all of his farm for the succeeding year except a small amount of the land, which he expected to cultivate in corn, and also rented the dwelling house on the farm to one of the tenants, but reserved a room in it for himself. He returned to the house in town with his family, as usual, in September, 1905, and they continued to reside at the latter place up to the time of his death, which occurred at that place. During the crop season of 1906 he went back and forth between the house in town and the farm, staying at both places a portion of the time, but his family did not return to the farm at all. After his death the family continued to reside in the house in town, and no steps were taken to have the homestead set aside until this suit was instituted, though Mrs. Long, one of the plaintiffs, claims that she spoke to the county judge about having the farm set apart to her as a homestead, and she testified that she also told the administrator, Mr. Moore, that the farm was the homestead; but the latter testified to the contrary, and stated that when he was proceeding with the sale of the property for the purpose of paying debts the widow requested him to sell the farm, rather than the house in town. The testimony shows that the house in town was more commodious and better situated for occupancy by decedent and his family, and that it was better furnished in every way. Mrs. Long testified that they moved to town for the purpose of educating the children, and failed to return during the summer of 1906 for the sole reason that the condition of her health was such that it was inconvenient for them to go to the country. She stated that her husband repeatedly spoke of the farm as his homestead, and expressed his intention of returning there to live and of building a more suitable dwelling thereon. There were other witnesses who corroborated her as to statements made by deceased indicating his intention to return to the farm and retain it as his homestead. On the other hand, the defendant introduced several witnesses who testified that deceased made repeated efforts to sell the farm, especially after he moved to town the last time. Several of plaintiff's witnesses testified as to deceased expressing his desire or intention to sell the farm. In fact, it seems to be undisputed that deceased made efforts to sell the farm. The proof shows that he repaired the house in town, and shortly before he died added another room to it. It is, therefore, well established by the testimony that...
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