Appeal
from Benton Circuit Court, JOHN N. TILLMAN, Judge.
Action
by J. G. McAndrew, as administrator of the estate of Seth
Hollingsworth, deceased, against Deborah Hollingsworth and
others. Defendants had judgment, and plaintiff appealed.
Reversed.
STATEMENT
BY THE COURT.
We
adopt the following statement of facts, made by appellant, as
correct:
"Seth Hollingsworth died in Benton county, Arkansas
January 27, 1894. He made and executed a will in due form
by which he made the following disposition of his property
towit:
"'I hereby will and bequeath to each of my
children, William Hollingsworth, Minnie Hollingsworth, Clay
Hollingsworth and Maggie E. Blood, the sum of $ 1, and to
by beloved wife, Deborah Hollingsworth, all of my real
estate, towit: lot No. 5, in block No. three (3), in Siloam
Springs, Arkansas, and she, my beloved wife, is also to
have all of my personal property of whatsoever kind and
description after paying my just debts and funeral
expenses.'
"No executor was appointed by the will. After his
death J. E. Crane was appointed as administrator of his
estate by the probate court of Benton county, but resigned
within a year, and was discharged. Afterwards, in 1898
appellant was appointed administrator in succession of the
estate, and the claim of the Philadelphia Construction
Company was duly probated against the estate. After the
probate of the claim the probate court, upon proper
application of the administrator, made on order to sell the
lot to pay debts probated against the estate. Deborah
Hallingsworth and Minnie Strange (nee Hollingsworth) were
properly made parties to the proceeding, objected to making
the order of sale, and appealed to the circuit court, where
the cause was tried de novo by the circuit judge sitting as
a jury.
"The hearing was upon deposition and record and other
documentary evidence, and the court found the following
facts, in addition to the foregoing: the lot was at the
time of the execution of the will and at the time of the
death of the testator the homestead of the testator, and
occupied by him as such with his family; that his widow
Deborah Hollingsworth, had no separate homestead in her own
right, and there were no minor children of the testator
and that the widow continued to occupy the homestead after
her husband's death. In 1897 she sold and conveyed the
lot for an expressed consideration of $ 5,000 to her
daughter, Minnie Strange.
"Afterwards, and before the probate court made the
order of sale, but after notice of the application for the
order was given by the administrator, Minnie Strange
conveyed the lot to Deborah Hollingsworth for an expressed
consideration of $ 500, to be held by her during her
natural life, with remainder in fee to Minnie Strange. On
these findings the appellant asked the court to make the
following declarations of law:
"(1.) That the sale of the lot by Deborah
Hollingsworth to Minnie Strange constituted an abandonment
of any homestead right in the land under the constitution
of the state of Arkansas.
"(2.) That the legal effect of the will was to convey
to Beborah Hollingsworth the fee title in the lot in
addition to the homestead right of the widow.
"(3.) That by the terms of the will the fee title in
the lot was charged with the payment of the testator's
debts.
"(4.) That Seth Hollingsworth could not devise the fee
in his homestead free from the claims of creditors, but
that she would take the same subject to such debts, and
upon her abandonment of the homestead right the lot became
at once subject to sale for payment of the debts probated
against the estate.
"The court made the first and second of these
declarations, but refused to make the third and fourth, and
declared the law to be:
"(1.) By the terms of the will only the personal
property was charged with the payment of debts.
"(2.) The owner of the homestead had the power to
devise the feet title of the homestead free from the
payment of debts to the same extent that he could convey
the same during his lifetime by deed, and creditors would
have no right to complain; and Deborah Hollingsworth took
the fee title under the will free from the claims of
creditors to the same extent as if it had been conveyed by
deed in the lifetime of the testator.
"The court dismissed the petition of the administrator
to sell the land, rendered judgment against him for costs
of the appeal, and directed that its judgment be remanded
to the probate court and made the order and judgment of
that court.
"To each of these rulings, judgment and orders of the
court, except the making of the first and second
declarations of law asked by appellant, the appellant
excepted at the time. Each of his exceptions was overruled,
and he appealed to this court."
Reversed and remanded.
C. M.
Rice, McGill & Lindsay, for appellant.
The
widow took the fee by devise in addition to the homestead
estate. 64 Ark. 1; 72 Vt. 300; 22 Am. St. 109. Her sale and
conveyance was an abandonment of the homestead. 48 Ark. 230;
55 Ark. 572. The homestead becomes assets for the payment of
debts upon the termination of the estate, and the effect of a
devise is the same as a devise of other lands. 29 Ark. 280;
29 Ark. 633; 47 Ark. 445; 48 Ark. 230; 49 Ark. 75; 53 Ark.
400; 56 Ark. 563; 67 Ark. 239; 69 Ark. 1; 50 Ark. 329; 51
Ark. 429; 65 Ark. 355; 127 Mo. 189; 34 Am. St. R. 492; Page,
Wills, § 762; 19 A. & E. Enc. (2d Ed.), 1336; 56 S.W.
983.
E. P.
Watson, for appellees.
The
homestead was devised free from the claims of creditors.
Sand. & H. Dig., § 7390; Greenleaf, Cruse, Real Prop.
§ 1; Tied. Real Prop. § 872; 29 Am. & Eng. Enc.
Law, 257; Const. art. 9, § 3; 52 Ark. 547; 15 Enc. Pl. & Pr. 692; Waples, Home & Ex. 462; Page, Wills, § 138; 30
Miss. 428; 31 Id. 134; 59 Id. 140; 62
Id. 429; 65 Id. 439; 22 Kan. 256; 23
Id. 514; 31 Id. 270; 41 Wis. 381; Thomp.
Home. & Ex. §§ 514, 612; 7 Wash. 291; 12 S.W. 933;
22 S.W. 605; 56 S.W. 983; 32 S.W. 676; Greenleaf, Cruse, Real
Prop. § 19.
OPINION
BATTLE, J. (after stating the facts).
Has a
resident of this state, who is married or the head of a
family, and who is the owner of a town lot in this state less
than one acree in size, and not exceeding in value $ 2,500,
which is occupied by him at the time of his death as a
homestead, the power to devise it to his widow free and
exempt from the claims of his creditors, he having no minor
children?
The
Constitution of this state ordains: "The homestead of
any resident of this state, who is married or the head of a
family, shall not be subject to the lien of any judgment or
decree of any court, or to sale under execution, or other
process thereon, except such as may be rendered for the
purchase money, or for specific liens, laborers' or
mechanics' liens for improving the same, or for taxes, or
against executors, administrators,...
