38 Ark. 243 | Ark. | 1881
OPINION.
It will serve no useful purpose to criticise in detail the long list of declarations of law asked upon both sides, some of which were given and others refused. The facts as found were well supported by the evidence, and the law, as applicable to them, is as follows :
The action was not barred by the Statute of Limitations. It arose, if at all, after the death of the intestate, and as the Statute had not commenced to run in his lifetime, it would not begin until, a personal representative might be in existence competent to sue. McCustian v. Ramsy, 33 Ark., 141.
The value of the estate was more than $300, as found Dy the court; for the whole property, real and personal, is to be estimated in order to determine whether or not it may be retained by the widow under sections 6 and 7 of Gantt’s Digest; 33 Ark., 824. The personal property was, itself, worth the full sum of $300, and the remainder interest in the homestead, which was also part of the estate, was worth something more. But altogether it was worth less than $800, and the widow, under the sixth section above cited, was “entitled to retain the amount of $300 of the property at cash price.” This right, when exercised, merges her right to retain absolutely, specific articles, such as furniture, provisions, etc., as provided generally, in ordinary cases, but does not preclude her from a continued occupation of the homestead.
The widow retained only what it would have been the duty of the probate court to allow if there had been an administration. In such cases it has been held that she may show the facts in defense, even where no order of the court has been made, the onus, of course, beingupon her. Hampton et al v. Physick, adm’r. 24 Ark., 561; Harrison v. Lamar, 33 Ark., 824, cited supra.
The right in the widow became absolute on the death of the husband, and upon her marriage the second time, it passed with the possession, by marital right, to the second husband. There is no showing that she was married after the act of April 28th, 1873, or that at any time during her life she claimed the property, as separate, by filing a schedule.
No claim is made in this action for the homestead. As for the personal property, it is found that the widow did not retain more than she ought. If she were willing to continue to carry the onus of the proof, it would be hard to require her to diminish her pittance by costs of administration to enable her to retain.
Without reference, to the declarations of law made and refused, we think upon the whole case the judgment was right.
Affirm it.
