Van Pelt v. Johnson, 5-127

• Decision Date: 06 July 1953
• Docket Number: No. 5-127,5-127
• Citation: 222 Ark. 398,259 S.W.2d 519
• Parties: VAN PELT et al. v. JOHNSON et al.
• Court: Arkansas Supreme Court

Page 519

259 S.W.2d 519

222 Ark. 398

VAN PELT et al. v. JOHNSON et al.

No. 5-127.

Supreme Court of Arkansas.

July 6, 1953.

John D. Eldridge, Jr., Augusta, for appellants.

Henry & Long, Augusta, for appellees.

ROBINSON, Justice.

The alleged abandonment of a homestead by a widow is the issue. Louis Clark was married twice and had children by each marriage. Those by the first wife filed this suit claiming the second wife, the widow of Clark, had abandoned the homestead; and also alleged the widow is liable for the rents and profits she has made and collected since such alleged abandonment. All the children of Clark have reached their majority. The Chancellor held that the widow had not abandoned the homestead.

Clark died intestate in 1926, leaving a widow, minor children, and a homestead consisting of about 20 acres; subsequent to Clark's death Hattie, Clark's widow, lived on the property continuously until 1932 at which time she married one Daniel Rogers. Thereafter she lived on the property at intervals until 1939, when she was divorced from Rogers; and later married Johnson, her present husband. She and Johnson lived on the property until 1944 at which time the dwelling was destroyed by fire. Arson was suspected. For this reason and the further reason that Johnson would have no interest in the Clark homestead in the event of Hattie's death, they acquired a lot as an estate by the entirety across the road from the 20 acres and built a house thereon, where they have since lived.

Hattie has not actually lived in a house on the 20 acres since 1945, but has been in control and possession of the property, paying taxes thereon, and her husband Johnson has farmed it each year.

Art. 9, § 6 of the Constitution of Arkansas 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 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.' Foregoing quotation is from a microfilm of the original Constitution of 1874; there is a discrepancy in punctuation when compared with the Constitution as set out in Ark.Stat. Vol. 1, page 124.

In Butler v. Butler, 176 Ark. 126, 2 S.W.2d 63, 65, the children by his first wife of the owner of the homestead claimed that the second wife, the widow, had abandoned the homestead. The homestead was located in Logan County, and subsequent to the death of Butler the homestead owner, Mrs. Butler, moved to Ft. Smith with her children where she purchased a home. Mr. Justice McHan...