100 Ark. 399 | Ark. | 1911
(after stating the facts). It is conceded by the counsel for both sides that the decision of this case depends upon the construction to be given to sections 29 and 30 of chap. 68 of Gould’s Digest. Section 29 provides, in substance, that every free white person of this State, being the head of a family, shall be entitled to a homestead.” Section 30 reads as follows:
“The preceding section shall be deemed and construed to exempt such homestead in the manner aforesaid, during the time it shall be occupied by the widow or child or children of any deceased person, who was, when living, entitled to the benefits of this act.”
It is contended by counsel for the appellant that the words “widow,” as used in the act, means a woman who has lost her husband by death, and also remains unmarried. They insist that when Ann Leslie, the widow of William Leslie, married the appellant, J. H. Davis, her right of homestead in the lands in controversy ceased. On the other hand, it is contended by counsel for the appellees that the word “widow” is used in the sense of a wife who has outlived her husband.
We think that the construction contended for by counsel for appellant is too narrow and literal, and is contrary to the spirit and intent of the act. It is the settled policy of this court that homestead acts are remedial, and should be liberally construed to effectuate the beneficent purposes for which they are intended. We think that the word “widow,” as used in the act, refers to the person, and not to her state or condition, whether she remains a widow or marries again. The rule is that whenever a right by law is attached to a person by reason of her being a widow, such right remains, unless other words are used in the act, which limit it. If the Legislature had intended that her right of homestead should cease when she married again, it would doubtless have used words of that import, such as “during her widowhood,” which would refer to her state or condition, and not to the person, or would have added the words “until she marries again” or “so long as she remains unmarried. ”
Counsel for the appellant invokes the doctrine of laches as a bar to appellees’ right of action, but we cannot agree with them. In the case before us the widow of William Leslie continued to occupy and hold possession of the land as her homestead from his death to her death in September, 1908, as she had a right to do. Therefore, appellees had no right of action for the possession of the land in controversy until a termination of her homestead estate in the land. Gannon v. Moore, 83 Ark. 196; Ogden v. Ogden, 60 Ark. 70; Gallagher v. Johnson, 65 Ark. 90; Abramson v. Rogers, 79 Ark. 198; Watson v. Hardin, 97 Ark. 38.
In the case of McFarlane v. Grober, 70 Ark. 371, the court held (quoting from syllabus): “The doctrine of laches has no application to a case where the plaintiff is not seeking equitable relief, but to enforce a legal title, and where her action is not barred by the statute of limitations in reference thereto. ” Here appellees are seeking to enforce a legal right, and there are no peculiar circumstances which prevent them from asserting that right.
In the case of Fox v. Drewry, 62 Ark. 316, the court said: “A married woman may be estopped to claim real estate, but mere silence or inertness will not suffice to work an estoppel. Sims v. Everhardt, 102 U. S. 300. Mere submission to the injury for any time short of the period limited by statute for the enforcement of the right of action cannot take away such right, although, under the name of laches, it may afford a ground for refusing relief under some peculiar circumstances. De Bussche v. Alt, L. R. 8 Ch. Div. 286, 314. “Unless in some way the party relying upon an estoppel is put to disadvantage by the action of the party said to be estopped, it will not be available. ”
As we have already seen, appellee’s mother did not die until September, 1908, and they had no right of action for possession of the premises until that time. Since her death the only improvement put on the land by appellant was some wire fencing. He does not, however, state the cost of this, and it is probable that he was compensated therefor by the collection of the rents. We do not think, in any event, that the silence of appellees implied consent.
It follows that’the decree will be affirmed.
