Monroe v. Monroe, 5--5539
| Decision Date | 12 April 1971 |
| Docket Number | No. 5--5539,5--5539 |
| Citation | 250 Ark. 434,465 S.W.2d 347 |
| Parties | Byran MONROE, Appellant, v. Sleetie MONROE, Appellee. |
| Court | Arkansas Supreme Court |
W. F. Denman, Jr., Prescott, for appellant.
John L. Wilson, Hope, for appellee.
This appeal involves a widow's rights in the homestead of her deceased husband and the question is whether she has abandoned it.
Sleetie Monroe lived with her husband, W. E. Monroe, on his rural homestead near Hope, in Hempstead County, Arkansas, until his death in November, 1952. Mr. Monroe left as his sole surviving heir Bryan Monroe, who was an only son by a previous marriage. Mrs. Monroe continued to live on the homestead until June, 1953, when she rented out the house on the homestead and moved to Hope where she has resided in different houses purchased by her since moving from the homestead. Bryan Monroe instituted the present action in the Hempstead County Chancery Court alleging that Mrs. Monroe has abandoned the homestead and he prayed for an accounting and award of damages for waste in the cutting and sale of timber from the homestead land. The chancellor found that Mrs. Monroe had not abandoned the homestead and entered a decree accordingly. On appeal to this court Bryan Monroe relies on the following points for reversal:
'That the appellee has in fact abandoned her homestead in the subject land, by living elsewhere for these many years, allowing the house and out buildings to deteriorate, by acquiring three other homes during her absence.
That appellee has in law abandoned her homestead in the subject land by leaving said land without a fixed intention to return to same, without maintaining a fixed intention to return to same and without possessing a fixed intention to return to same at the time of trial.'
We are of the opinion that the chancellor's decree is not against the preponderance of the evidence and should be affirmed.
Article 9, § 3 of the Constitution of 1874 reads as follows:
'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, guardians, receivers, attorneys for moneys collected by them and other trustees of an express trust for moneys due from them in their fiduciary capacity.'
This section of the constitution applies to either the wife or husband when married, and to either of them, or to anyone else who is the head of a family, whether married or not. Consequently, any resident of this state of either sex, who is married, or who is the head of a family, is entitled to the exemption of a homestead under the constitution. Thompson v. King, 54 Ark. 9, 14 S.W. 925.
In addition to a married woman's right to homestead exemption, she has certain constitutional rights as a widow in the homestead of her deceased husband as set out in § 6 of Article 9 of the constitution, which is 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 have the rents and profits till each of them arrives at twenty-one years of age--each child's right 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 case of the death of the widow all of said homestead shall be vested in the minor children of the testator or intestate.'
The case of Butler v. Butler, 176 Ark. 126, 2 S.W.2d 63, involved the question of abandonment of a homestead; first by the husband, and then by the widow after her husband's death. In that case, as in the case at bar, the litigation was between children of the deceased husband by a first marriage and their stepmother. In the Butler case John Butler had established a rural homestead in Logan County on which there was located a coal mine. In 1916 he moved with his family to Crawford County where he continued to reside until his death in 1918. After Mr. Butler's death, his widow went to Fort Smith to live where she purchased a home for herself and minor children in order to obtain the advantage of better schools for the children and employment for herself. One of the children by the previous marriage administered his father's estate and after winding up the administration, he turned the possession of the Logan County lands back to his stepmother and she continued to receive the rents and proceeds from both the farming operations and the mining of coal.
The husband of one of the Butler heirs by the first marriage brought the abandonment of the homestead into issue and the chancellor found that John Butler had not abandoned his homestead in Logan County by his removal to Crawford County, and that neither had the widow abandoned the Butler homestead in Logan County. The Butler decision distinguishes between an acquired homestead and the rights of a widow in her deceased husband's homestead; and the Butler case so clearly sets out the law applicable to the case at bar, we feel justified in quoting at length from Butler as follows:
'The next question to be determined is whether Jonn Butler abandoned his homestead in his lifetime. It is conceded by all parties that the land in controversy was his homestead until the fall of 1916, when he removed to Crawford county, but it is contended by appellants that by such removal he abandoned his homestead. It is not contended that he acquired a new homestead after his removal to Crawford county, and before his death. It is the rule of law in this state, announced by many decisions of this court, that the question of whether there has been an abandonment of a homestead once established is almost entirely a question of intent on the part of the homestead owner so to do. In other words, in order to constitute an abandonment of a homestead, the owner must leave it with the intention of renouncing and forsaking it, or leaving it never to return. The law does not require continuous occupation of the homestead to continue it as such. As was said in one of the earlier cases before this court (Euper v. Alkire & Co., 37 Ark. 283): ...
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