Stone v. Stone

• Decision Date: 14 March 1932
• Docket Number: 197
• Citation: 47 S.W.2d 50,185 Ark. 390
• Parties: STONE v. STONE
• Court: Arkansas Supreme Court

47 S.W.2d 50

185 Ark. 390

STONE v. STONE

No. 197

Supreme Court of Arkansas

March 14, 1932

Appeal from Howard Circuit Court; W. C. Rodgers, Special Judge affirmed.

Judgment affirmed.

Jas. S. McConnell, for appellant.

Feazel & Steel, for appellee.

OPINION

MCHANEY, J.

Appellee is the widow of W. C. Stone, deceased, and appellants are his heirs at law, children by a former marriage, all adults. At the time of her marriage to said Stone, appellee was the widow of one Joe Caldwell, deceased from whose landed estate she claimed and was allowed a homestead which she has continued to claim, and the rents and profits from which she has continued to enjoy since Caldwell's death, more than 25 years ago. After the death of Mr. Stone and after letters of administration had been taken out on his estate (he having died intestate), appellee as widow filed her petition in the probate court for the assignment to her of her homestead rights in said estate. Appellants contested her right to a homestead out of said estate on the ground that she already had a homestead in her own right, which had been assigned to her out of the estate of Joe Caldwell, her former husband, and which was still in her possession, and from which she was still enjoying the rents and profits. The probate court denied her claim on this ground, and she appealed to the circuit court. Appellants then sought to have dower assigned to her by petition to the probate court which included the land claimed by her as homestead, which she opposed because it included the homestead claim, but the court assigned dower as petitioned by appellants. She appealed from this order. Both cases were consolidated in the circuit court by consent, heard together, and the court rendered judgment allowing appellee her homestead right in said estate as claimed by her, and also assigned dower to her in the whole estate after carving out the 80 acres allowed as homestead. This appeal is from that judgment.

The Constitution, article 9, § 6, which is § 5523, Crawford & Moses' Digest, provides: "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 half the rents and profits till each of them arrives at twenty-one years of age; each child's rights 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."

Counsel for both parties agree that a proper decision of the...