Stayton v. Halpern

• Decision Date: 10 March 1888
• Citation: 7 S.W. 304
• Parties: STAYTON <I>v.</I> HALPERN.
• Court: Arkansas Supreme Court

7 S.W. 304

STAYTON

v. HALPERN.

Supreme Court of Arkansas.

March 10, 1888.

Appeal from circuit court, Monroe county; M. T. SANDERS, Judge.

Stayton, plaintiff, sued Halpern, defendant, in ejectment, and filed a demurrer to defendant's answer, which was overruled, and plaintiff appealed.

John C. Palmer, for appellant. J. N. Cypert, for appellee.

COCKRILL, C. J.

The question arose upon demurrer to the answer of the appellee, who was sued by the appellants in ejectment, and is thus stated by the appellee's counsel: "Can the fee to real estate be sold by order of the probate court, upon the petition of an administrator, for the payment of the debts of his intestate, subject to the homestead right of a minor child, under the constitution of 1874?" McCloy v. Arnett, 47 Ark. 445, 2 S. W. Rep. 71, where the subject is fully treated, answers a similar question, which arose under the homestead provisions of the constitution of 1868, in the negative. The policy of exempting the homestead from sale, after the death of the debtor, for the benefit of the widow and the minor children, was continued by the constitution of 1874, without abating the right as it existed under the constitution of 1868, and the act of 1852. Garabaldi v. Jones, 48 Ark. 236, 2 S. W. Rep. 844; article 9, § 6, Const. 1874.¹ The case of McCloy v. Arnett, therefore, controls this. Reverse the judgment and remand the cause with instructions to sustain the demurrer.

1. If the owner of a homestead die, "in case of the death of the widow, all of said homestead shall be vested in the minor children of said testator or intestate."