Melton v. Melton

• Decision Date: 01 January 1917
• Docket Number: 66
• Citation: 191 S.W. 20,126 Ark. 541
• Parties: MELTON v. MELTON
• Court: Arkansas Supreme Court

191 S.W. 20

126 Ark. 541

MELTON v. MELTON

No. 66

Supreme Court of Arkansas

January 1, 1917

Appeal from Columbia Chancery Court; R. L. Searcy, Special Chancellor; affirmed.

STATEMENT BY THE COURT.

This suit was instituted by the appellant against the appellee at law to recover possession of Lots 25 and 26 in the town of Magnolia. The appellant set up title by virtue of an inheritance from her father, James R. Melton, deceased. The appellee in her answer denied the allegations of the complaint, and set up that she was the widow of Seeb Melton and that her husband was the son of James R. Melton, and that James R. Melton during his lifetime conveyed the property to Seeb Melton. That her husband gave the property to her. She also set up that she and her husband had occupied the property as a homestead, and that they were so occupying the same at the time of her husband's death. She asked in the prayer of her answer that if it was determined that she was not the owner that she be decreed a homestead in the property. She asked that the cause be transferred to equity which was done.

After the cause was transferred to equity the appellant filed an amended and substituted complaint, alleging title to the property the same as in her original complaint, and asked that her title to same be quieted and confirmed as against the appellee, and also asked that the dower interest of the appellee in the property be allotted, and after allotment of the dower interest that appellant be decreed possession of that portion of the property remaining after such allotment of dower to appellee. Appellee filed an amendment to her answer and cross-complaint, substantially the same as set up in the original, but in this she did not claim any homestead in the property.

The facts showed that J. R. Melton was the owner of the land in controversy at the time of his death; that appellant, Eliza Melton, was his daughter, and W. S. Melton was his son. It appears from the testimony that on the 14th of January, 1893 James R. Melton purchased the land in controversy from H. C Smith, receiving a warranty deed. After this purchase from Smith, W. S. Melton, the son of J. R. Melton, and husband of the appellee, went into possession of the property and occupied the same as his homestead until his death. J. R. Melton at the time of his death also owned Lots 23 and 24, which he occupied as his homestead.

The court, among other things, found that no valid gift of Lots 25 and 26 was ever made by James R. Melton to W. S. Melton, or by W. S. Melton to the appellee, Lulu Hicks Melton. That under our laws of descent and distribution the legal title to Lots 25 and 26 was in the appellant. That W. S. Melton died without any children or lineal descendants, and that the lots in controversy were an ancestral estate, and that the appellee therefore was entitled to be endowed with a one-half interest in the lots in controversy for her life; that she was also entitled to the lots in controversy as a homestead; that she had not abandoned the same as a homestead.

The effect of the court's finding was that W. S. Melton died the owner of the property in controversy, and occupying the same as his homestead; that he had no children or lineal descendants, and that the title to the property was in appellant, his sister; but that the appellee, the widow of W. S. Melton, was entitled to dower in the lots in controversy, and also entitled to a homestead right in the lots, and that she had not abandoned such homestead. The court entered a decree establishing the legal title to the lots in controversy in the appellant, but denying her prayer for the possession of the property and to have dower allotted in same to the appellee. Other facts stated in opinion.

Judgment affirmed.

C. W. McKay, for appellant.

1. The court erred in finding that appellee was entitled to a homestead and in declining to allot dower. The preponderance of the evidence shows an abandonment of the homestead. 101 Ark. 101; 37 L. R. A. (N. S.) 807; 22 Ark. 400; 37 Id. 283; 41 Id. 309; 48 Id. 539; 55 Id. 55; 73 Id. 174; 83 S.W. 913; 17 Id. 365; 76 Am. Dec. 432. The intent of the owner will be governed by all the circumstances. 74 Ark. 88; 76 Id. 575; 68 Id. 76. No present and abiding intention to return to it is shown. 55 Ark. 58; 21 Cyc. 621. See also 107 Ark. 284.

Stevens & Stevens and Kilgore & Joyner, for appellee.

1. The burden was on appellant to show an abandonment--the lots having been once impressed with the homestead right. 6 Enc Ev., p. 534; 10 N.W. 804. The evidence must show removal with the intention of not returning. 62 N.W. 470; 11 S.W. 502; 76 Id. 751; 37 Ark. 283; 22 Id. 404.

2. This was not an ancestral estate. In ejectment plaintiff must prove title. 80 Ark. 31, etc. The rule is the same in suits to quiet title. 82 Ark. 294; 99 Id. 137; 4 Enc. Ev. 576-7; 14 Cyc. 152; 11 S.W. 10; 13 Current Law 10; 13 Id. 1307.

3. There is no evidence that appellant's brother owned the lots at his death. But if he did he parted with the title by gift to his wife. The title passed from J. R. to his son, the husband of appellee. Declarations of a donor subsequent to parting with title are admissible. 6 Enc. Ev. 212. So are acts of ownership. Ib. 214; 6 L. R. A. (N. S.) 508. See 108 Ark. 277, a case like this. Also 88 S.W. 977; 81 Ark. 328. The decree should be reversed on the cross appeal. 32 Ark. 116; 82 Id. 45.

OPINION

WOOD, J. (after stating the facts).

The appellant contends that the court erred in finding that the appellee was entitled to a homestead in the lots in controversy and in refusing to have the dower of appellee in the property allotted and set aside. W. S. Melton and appellee, his wife, had occupied the property in controversy as their home several years before the death of W. S. Melton. About eight months before the death of W. S. Melton, he and appellee went to appellee's father's, where they remained until W. S. Melton died. During this time they returned occasionally to their home, the last time being about four months before W. S. Melton died. After the death of W. S. Melton, the appellee moved all of her furniture out of the house and rented the property; she had not lived on the property since the death of her husband; she at one time stated in joke, since the death of her husband, that she would take $ 3,500.00 for the property; she had not resided on the place for a period of about seven years. On one occasion, after her husband's death, appellee told the appellant that she did not know that she would ever live on the property in controversy again.

The above is substantially the testimony upon which the court found that there had been no abandonment of the homestead upon the part of the appellee after the death of her husband, and this finding is not clearly against the preponderance of the evidence. It is a well established rule of law that in order to constitute an abandonment the party having the homestead right must have removed from the home with the intention at the time never to return thereto; or, if he had no such intention at the time, he must have formed the intent afterwards never again to occupy the abandoned premises as a home. In Stewart v. Pritchard, 101 Ark. 101, 37 L. R. A. (N. S.) 807, 141 S.W. 505, we said: "The abandonment of a homestead is almost, if not entirely, a question of intent. This intent must be determined from the facts and circumstances attending each case." The burden was on the appellant to show that appellee had abandoned her homestead, and the evidence is not sufficient to establish that fact by a clear preponderance. There is no testimony in the record to show that the appellee, after the death of her husband, had acquired in her own right another homestead. The fact that she had not lived on the land in controversy for about seven years, and that she had rented same, was not inconsistent with a claim of homestead. While these facts tend to show a change of residence, they are not sufficient of themselves to establish an abandonment of the homestead. At least, it is not sufficient to warrant this court in reversing the finding of the trial court that there had been no abandonment. See Robinson v. Swearingen, 55 Ark. 55, 17 S.W. 365.

It will be observed that appellee did not tell appellant that she never intended again to live on the property in controversy. She stated that she did not know that she would, but that is quite a different thing from a positive statement that she would not, and to constitute an abandonment it must appear that there was a positive, affirmative intention, as we have shown,...