110 F. 734 | E.D. Ark. | 1901
(after stating the facts). The constitutional provision of the state of Arkansas is as follows:
“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 thereof, except,” etc. (the exceptions not being applicable to the case at bar). Const. Ark. art. 9, § 3.
The only question to be determined is whether the bankrupt, upon the facts of this case, is “the head of a family,” within the meaning of this constitutional provision. The question has never been directly passed upon by the supreme court of Arkansas, but a careful review of all the decisions of that court in relation to homestead exemptions shows that these laws have always been liberally construed ; and in two instances, while not properly before the epurt, it was intimated that one situated as the bankrupt is would be deemed “the head of a family.” In Greenwood v. Maddox, 27 Ark. 648, the court said, where an unmarried man had living with him his sisters who were orphans, that:
“The court below might well have found, upon these facts, that Toms was the head of the family. He succeeded his deceased father in the care of his minor sisters, who continued to live with him in the family mansion when not at school.” Greenwood v. Maddox, 27 Ark. 658.
In Patrick v. Baxter, 42 Ark. 175, the court cites approvingly from Thomp. Homest. & Exemp. § 60, that:
“It may be that an unmarried man, who has an aged mother living Tvitli him in his house, dependent upon him, and whom he is supporting, is the head of a family, within the meaning of the constitution.”
While it is true that these are mere dicta, and were not necessary for the determination of the issues then before the court, yet they are entitled to high consideration from this court, as showing the leaning of the highest court of the state in the construction of these provisions of the state constitution. The term “head of a family” should be given a broader construction than merely applying it to the husband or father, and, while it is true that there is some conflict of authority as to whether an unmarried man can be the head of a family, the weight of authority is in favor of considering every person the head of a family who keeps house, and has living with him and is supporting some persons whom it is either his legal or moral duty to support. Harbison v. Vaughan, 42 Ark. 539. Thus, in Tennessee, Chancellor Cooper, in Ex parte Brien, 2 Tenn. Ch. 33, held that a widow keeping house upon the farm without any children of her own, but with orphan children of a deceased sister, dependent upon her, is the head of a family, within the meaning of the homestead laws of that state, which is limited to the head of a family. To the same effect, see, among other decisions, Marsh v. Lazenby, 41 Ga. 153; Blackwell v. Boughton, 56 Ga. 390; Cox v. Stafford, 14 How. Prac. 521; Connaughton v. Sands, 32 Wis. 387; Wade v. Jones, 20 Mo. 75, 61 Am. Dec. 584; Parson v. Livingston, 11 Iowa, 104, 77 Am. Dec. 135; Seymore v. Cooper, 26 Kan. 539; McMurry v. Shuck, 6 Bush, 111, 99 Am. Dec. 662; Moyer v. Drummond, 32 S. C. 165, 10 S. E. 952, 7 L. R. A. 747, 17 Am. St. Rep. 850; Thomp. Homest. & Exemp. §§ 5S-60. Even if there be no statutory obligation, there is a moral