58 Ark. 298 | Ark. | 1893
Isaac H. Hilliard died, intestate, in 1882, leaving him surviving appellant, his widow, and no children, but leaving a brother and the children of a deceased sister his heirs at law. Hilliard, at the time of his death, owned and lived upon a plantation of about 3000 acres in Chicot county. Application was made to the probate court for the assignment of dower, and an order made appointing commissioners in October, 1884, and the commissioners did not act until October, 1885. They then reported to the court an assignment of dower, and the report was at once approved. The widow was then absent from the State, and had no notice of the action of the commissioners. The dower was so laid off as to include the residence, and ignore the existence of the homestead. After her return in November, 1885, the widow filed objections to the report and order approving it, and appealed the cause to the circuit court. On trial of the appeal she objected to the report, and moved to amend the petition for dower, so as to set up the homestead ; but the court ruled that the question of homestead was not before the probate court, and therefore could not be tried in the circuit court, refused the amendment, and confirmed the report of the commissioners.
The circuit court should have tried the cause de novo. Hilliard v. Hilliard, 52 Ark. 283.
The widow was deprived of the benefit of this statute by the action of the commissioners in proceeding without notifying her and giving her .the privilege of selecting her dower. The report should not have been approved unless it appeared from it, or other evidence, that the widow had notice and an opportunity to avail herself of the privilege given her by the statute.
Our constitution gives the homestead to the widow and minor children as a right in the estate, in addition to the dower of the widow. Sec. 6, art. 9, is as follows : “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 go to the widow, and provided 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.”
In construing this section of the constitution, this court in Thompson v. King, 54 Ark. 12, said: “Its terms, and the reason upon which it is founded, show that the minor children were thereby intended to be provided for during their minority, independently of the widow.”
In Massachusetts the statute provided that the homestead exemption should continue after the death of the householder, for the benefit of the widow and children, some one of them continuing to occupy such homestead until the youngest child is 21 years of age, and until the death or marriage of the widow. In construing this statute in Cowdrey v. Cowdrey, 131 Mass. 186, the court said : “ The effect of the homestead statutes is to give the widow an estate in addition to her rights in the property of her deceased husband. They are not designed to curtail her right of dower, but to give her the additional benefit of a homestead for herself and minor children. Upon this ground, it was held in Monk v. Capen, 5 Allen, 146, that the fact that a widow had received an assignment of dower and an allowance out of the personal property of her husband did not preclude her from claiming the additional benefit of an estate of homestead.”
In Chisolm v. Chisolm's Executors, 41 Ala. 327, it was held that a widow having had dower allotted to her is no bar to her application for a homestead. See also Johnson v. Davenport, 42 Ala. 317 ; Mercier v. Chace, 11 Allen, 194 ; Waples on Homestead and Exemption, 614 and 615.
In allotting dower it is not proper to deduct the homestead and assign the dower out of the remainder of the estate. The widow is entitled to dower in the whole estate.
Reversed and remanded for further proceedings according to law.