Sulcer v. Northwestern Nat. Ins. Co. (of Milwaukee, Wis.)

• Citation: 566 S.W.2d 397,263 Ark. 583
• Decision Date: 05 June 1978
• Docket Number: No. 77-317,77-317
• Parties: Nan B. SULCER, Appellant, v. NORTHWESTERN NATIONAL INSURANCE COMPANY (OF MILWAUKEE, WISCONSIN), Appellee.
• Court: Supreme Court of Arkansas

Page 397

566 S.W.2d 397

263 Ark. 583

Nan B. SULCER, Appellant, v. NORTHWESTERN NATIONAL INSURANCE COMPANY (OF MILWAUKEE WISCONSIN), Appellee.

No. 77-317.

Supreme Court of Arkansas,In Banc.

June 5, 1978.

Killough & Ford by Robert M. Ford, Wynne, for appellant.

Rieves, Rieves & Shelton, West Memphis, for appellee.

BYRD, Justice.

Appellant Nan B. Sulcer, in her capacity as personal representative of the estate of her deceased husband, misapplied the funds belonging to the estate. Appellee Northwestern National Insurance Company of Milwaukee, Wisconsin, as the surety on appellant's bond, Ark.Stat.Ann. § 62-2211 (Repl.1971), after making good appellant's defaults, obtained a judgment against her in the amount of $25,333.33. The trial court ruled that appellant's property rights (dower rights) in a house and lot located at 941 Cherry Street in Forrest City, Arkansas, were subject to the judgment lien, notwithstanding appellant's claim of a widow's homestead exemption, Ark.Const. art. 9, § 6. Appellant appeals raising the issues hereinafter discussed.

The record shows that, in a proceeding between appellant and her husband's creditors, the probate court on January 26, 1976, upheld appellant's homestead exemption as to the house and lot in question. In so doing the probate court stated:

"IT IS, THEREFORE, BY THE COURT CONSIDERED, ORDERED AND ADJUDGED that the house at 941 Cherry Street be, and it is hereby declared the homestead of Clyde Sulcer, and is free from the claims, executions and attachments of the creditors of Clyde Sulcer, deceased; that the Court makes no ruling as to whether any creditor may have a specific lien against any possible right, title, or interest of any heir and/or devisee in the Cherry Street property."

The record also shows that appellee satisfied the defaults of appellant on September 13, 1976, and that appellee did not obtain its judgment against appellant until June 26, 1977.

Our cases consistently hold that the burden of proving res judicata is upon the person asserting the bar of the former judgment, Hurst v. Hurst, 255 Ark. 936, 504 S.W.2d 360 (1974), and Southern Farmers Assn., Inc. v. Wyatt, 234 Ark. 649, 353 S.W.2d 531 (1962). Furthermore, it was held in Randolph v. Nichol, 74 Ark. 93, 84 S.W. 1037 (1905), that questions expressly reserved by a decree are not concluded thereby. On the record before us it is at once obvious that the record does not support appellant's contention that the probate court's allowance of the homestead exemption against the claims of her husband's creditors is res judicata of her homestead claim as against a personal judgment against her for defaults in her capacity as personal representative of her husband's estate.

The homestead exemption with respect to real property is set forth in Article 9 of our Constitution, as follows:

" § 3. Homestead exemption from legal process Exceptions. 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."

§ 6. Rights of widow and children. 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 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."

We note that Article 9, § 6, supra, with respect to the rights of a widow, only provides that "the same shall be exempt" but the term "exempt" is not otherwise qualified. However, since the section is prefaced with "If the owner of a homestead die, . . .," the phrase that "the same shall be exempt" must refer back to the exemption set forth in Section 3, supra, which excepts judgments against executors and administrators from the homestead exemption. See Stuckey v. Horn, 132 Ark. 357, 200 S.W. 1025 (1918), which holds that the homestead right of the widow is a derivative one and that widow has the homestead which the husband could have claimed. Thus, it follows that the exemption set forth in Section 6, supra, is no greater than the exemption set forth in Section 3, supra.

The appellant argues that the homestead awarded under Section 6, supra, is the homestead of the deceased husband, not appellant, and since the husband was not indebted as an executor or administrator, the property must be held exempt from legal process under Section 3, supra. We cannot agree with appellant that the homestead exemption runs in favor of a dead person. The homestead exemption in Section 3 applies only to a "resident of this State who is married or the head of a family." Needless to say, the language of the Constitution speaks in the present tense in describing the persons entitled to a homestead exemption. Consequently, we find no merit in this contention.

The homestead exemption is neither an estate nor a vested interest. The homestead right is only an exemption from legal process. Consequently, the homestead right of appellant is not property upon which an execution may be levied. However, in so far as appellant has a dower right in the property, the trial court correctly held that the homestead exemption Article 9, § 6, supra, did not prevent appellee from causing a writ of execution to be levied upon the dower interest. What benefits the husband's creditors may receive from the affirmation of the trial court's decree is not an issue before us on this appeal.

Affirmed.

FOGLEMAN, J., dissents.

GEORGE ROSE SMITH and HICKMAN, JJ., concur.

FOGLEMAN, Justice, dissenting.

This is a dissenting opinion largely because I simply cannot understand how a judgment can be affirmed when the end result of the opinion, as I read the last paragraph, actually sustains appellant's argument that, as stated in her point II for reversal, "The exception in Article 9, § 3 of the Constitution of Arkansas does not apply to the appellant and the estate of Clyde Sulcer, deceased, is entitled to the homestead exemption. The court erred in failing to so hold." It is also a dissenting opinion since the language leading up to the concluding paragraph seems to be either inconsistent with that paragraph or dictum, and I cannot agree with that language. One further reason it is a dissenting opinion is that I do not agree that the trial court ruled that appellant's property rights (dower rights) were subject to the lien. The complaint contained an allegation that appellee was entitled to levy execution upon the homestead property located at 941 Cherry Street. In the answer appellant pleaded res judicata and the homestead exemption. The dower rights were never put in issue. The memorandum findings of the chancellor were that appellee was entitled to levy execution against the homestead property.

The court's judgment stated that it was a lien against appellant's interest in said property and that the property was not immune from execution by reason of Art. 9, § 3 of the Constitution of Arkansas. It was adjudged that appellee was entitled to levy execution on defendant's interest in said property, "free and clear of any homestead exemption." How the mandate of this court can be written as an affirmance of that judgment is a puzzle I can't solve. I disagree with the quoted language in that judgment, which is the only point in issue on this appeal and I disagree with the language of the majority opinion on the subject of homestead except for the last paragraph.

I would first point out that, under our constitution, Nan B. Sulcer did not have a homestead in the property involved in her own right. Hers was a derivative right in the homestead of her deceased husband. It is quite clear that a wife may have a homestead in her own right in her own property, and that when she does, it comes within the purview of Art. 9, § 3 of the Constitution of Arkansas. Gibson v. Barnett, 75 Ark. 205, 87 S.W. 435. Art. 9, § 6 of the Constitution recognizes that a widow may have a homestead in her own right. When she does, she has no right to the husband's homestead by the plain language of the statute, i. e., if she selects a homestead on her own property after the death of her husband. Bruce v. Bruce, 176 Ark. 442, 3 S.W.2d 6; Wilmoth v. Gossett, 71 Ark. [263 Ark. 589] 594, 76 S.W. 1073; Thompson v. King, 54 Ark. 9, 14 S.W. 925. In Bruce, the difference between the homestead of the wife and the homestead of the widow is emphasized. See also, Stone v. Stone, 185 Ark. 390, 47 S.W.2d 50, where it was held that a wife could have rights in the homesteads of two husbands who predeceased her. We clearly recognized rather recently this distinction in homestead rights under §§ 3 and 6 of Art. 9 in Monroe v. Monroe, 250 Ark. 434, 465 S.W.2d 347, after first quoting § 3 verbatim, we said:

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...