Wilmoth v. Gossett

• Decision Date: 07 November 1903
• Citation: 76 S.W. 1073,71 Ark. 594
• Parties: WILMOTH v. GOSSETT
• Court: Arkansas Supreme Court

76 S.W. 1073

71 Ark. 594

WILMOTH v. GOSSETT

Supreme Court of Arkansas

November 7, 1903

Appeal from Boone Circuit Court ELBRIDGE G. MITCHELL, Judge.

Affirmed.

Crump & Bailey, for appellants, S.W. Woods, of counsel.

The court erred in giving appellee homestead in the lands. Const 1874, § 6, art. 9; Ib. § 3, art. 9; 66 Ark. 385; 25 Ill. 610; s. c. 79 Am. Dec. 350; 80 Ky. 636; 77 Tenn. 545; Ib. 523; 23 Cal. 108; 25 Ga. 223; 1 Kan. 648; 42 Ark. 503; 48 Ark. 230.

J. W Story, for appellee.

The 120-acre tract was never the homestead of appellee. Mere temporary residence there did not make it so. 22 Ark. 401; 31 Ark. 466; 57 Ark. 179; 55 Ark. 303; 43 Ark. 547. For requisites of homestead, see: Const. 1874, art. 9, § 4; 22 Ark. 401; 69 Ark. 596; 42 Ark. 175; 31 Ark. 466. There can not be two homesteads. 29 Ark. 280; 48 Ark. 539; 65 Ark. 251; Rodgers, Dom. Rel., §§ 180, 183; 67 S.W. 578; Thomp., Home & Ex., §§ 225, 245, 246. The mere ownership by appellee of a place at the time of the death of her husband does not deprive her of the homestead of her late husband. Const. 1874, § 4, art. 12; 45 Ark. 343; 48 Ark 232.

OPINION

BUNN, C. J.

In the Boone county court, at its October term, 1900, Vesta Wilmoth Harriett Brown, T. H. Gossett, Louisa Murry, Mattie Austin, Mary Childers, and the children and heirs at law of Sarah Marshall, deceased, children and grandchildren of William Gossett, deceased, filed their ex parte petition, reciting that their said ancestor had died intestate about the 8th day of July, 1900, leaving surviving him his widow, Mary Ann Gossett and the petitioners, and seized and possessed of about 187 acres of land near the town of Harrison in said county of Boone, describing the same; that this widow, the said Mary Ann Gossett, at the time of her said husband's death, owned in her own right 160 acres of land, and a life estate in 120 acres more, all in said county, and the last named near the town of Harrison. Prayer that commissioners be appointed and directed to lay off and set apart dower in said lands of her deceased husband, and the same was accordingly done, and the commissioners were ordered to report their action at the next term of said court.

On a subsequent day in said October term, Mary Ann Gossett, the widow of William Gossett, appeared in said court, and asked to be made, and was made, a party defendant to said proceeding, and filed her separate answer. Upon the petition and answer the probate court held that said respondent was not entitled to the benefit of a homestead in her deceased husband's land occupied by him and herself and family at the time of his death and for several years previously thereto, but that she was entitled to dower in her husband's lands; and commissioners were appointed and directed in accordance with the prayer of the petition; and the said Mary Ann Gossett duly and in due time took an appeal from said judgment to the Boone county circuit court, where, at its January term, 1901, the judgment of the probate court was reversed, the court holding that she was entitled to the benefits of the homestead left by her deceased husband, and thereupon directing dower to be set apart to her in all the lands of her deceased husband, including those claimed by her as a homestead. From this judgment the petitioner duly and in due time appealed to this court.

The cause was heard in the circuit court on the following agreed statement of facts, to-wit: "We, the undersigned, attorneys for the plaintiffs, as well as the attorneys for the defendant, hereby agree that William Gossett died seized and possessed of the lands mentioned in the transcript; that Mary Ann Gossett was his widow; that he left no minor heirs; that they resided on said land at the time of his death, and for several years prior thereto, as a homestead, and she has not since abandoned it; that the land is contiguous, and worth not exceeding $ 2500; that the said Mary Ann Gossett owned a life estate in one hundred and twenty acres of land north of Harrison, on which she and said William Gossett had temporarily resided four or five years prior to the time they moved on the homestead on which he died; that said land in which she owned a life estate had a dwelling and outhouses, and that most of the land was in cultivation, and it was a place of considerable value, not exceeding $ 2,400; that, in addition to this, the said Mary Ann Gossett owned 160 acres of land in Boone county, Arkansas, on which there was a dwelling and 35 acres in cultivation; that the last-named place she owned in her own right, having fee-simple title thereto."

The counsel for appellants contend that the widow, in the state of case made out by the agreed statement of facts, is not entitled to the privilege of the homestead left by the husband, contending that, as the widow had lands in said county in her own right, and more than sufficient to constitute a homestead in law, a part of which she and her said husband had occupied as their homestead in the beginning of their married life, she was barred from her claim by the provisions of section 6, article 9, of the Constitution of 1874.

The only question addressed to us for determination is whether the ownership of lands in her own right, and upon which she and her husband lived for some years in their early married life, bars her claim of homestead in his lands, which they had occupied as a homestead for many years next preceding up to his death.

In either case, of homestead in the wife or in the husband, the questions of dedication, occupation, and abandonment are important to be considered. In the case of the husband he can not be made to assert a homestead right against his will. There is no good reason for the application of a different rule in the case of the wife, for what is to be considered the homestead of any one depends primarily upon his or her intention in regard thereto, there being no homestead growing out of...