64 Ark. 1 | Ark. | 1897
Statute op Limitation—Proceeding To Subject Decedent’s Homestead to sale for his debts which is brought within three years after expiration of the homestead estate of his widow is not barred, though more than seven years have elapsed since his death. (Page 5.)
STATEMENT BY THE COURT .
The circuit court held that the lots could be subjected 'to the debts of the estate, and gave judgment in favor of the administrator.
1. It was the duty of creditors to administer, on the failure of the widow or next of kin, and the statute began to run from the expiration of the thirty days. Sand. & H. Dig., § 7.
2. If a testator devises the homestead,' which is all the property he has, to his widow, subject to the payment of his debts, and she elects to take under the will, and not under the statute, her possession after the time allowed her to elect is adverse, and puts the statute in motion. 3 Wash. Real Property, p. 18; Williams, Real Prop., p. 114; 15 Aik. 555; ib. 682. Having made her election, she is bound by it. 41 Ark. 64; 56 id. 532. She never renounced the will, and the law conclusively presumes that she elected to take under it. 29 Ark. 429; 52 id. 193; Sand. & H. Dig., § 2548. See 31 Ivas. 270. The creditors are barred. 46 Has. 480; 147 TJ. S. 647; 130 id. 320; 33 Miss. 141; 18 111. 91. The doctrine of election applies to homestead estates as well as dower. Sand. & H. Dig., §§ 2533, 2548; Thomps. Home. & Ex., § 544; 131 111. 210; 148 id. 641; 123 id. 447; 94 Ky. 421. They are barred by laches. 37 Ark. 155; 46 id. 373; 47 id. 470; 48 id. 277; 56 id. 633; ib. 470; 55 id. 572.
In the absence of a statute, the same rjiles in reference to application of the doctrine of election apply to both dower and homestead.
Applying these well settled rules to the will in this ease, we hold that no election was required, for there is nothing in the will that rebuts and overturns the presumption that the testator did not intend to devise the homestead, the right to which was already given to the widow by law, and nothing inconsistent in her claiming both the homestead and- the provisions in the will. The meaning of the will must be taken to be the same as if the testator had inserted therein an express provision that the devise made by him was subject to the homestead right of his wife, for the law presumes that such was his intention unless such presumption be countervailed by other inconsistent provisions.
