McAndrew v. Hollingsworth , 72 Ark. 446 ( 1904 )

Battue, J.

(after stating the facts.) Has a resident of this state, who is married or the head of a family, and who is the owner of a town lot in this state less than one acre in size, and not exceeding in value $2,500, which is occupied by him at the time of his death as a homestead, the power to devise it to his widow free and exempt from the claims of his creditors, he having no minor children ?

The Constitution of this state ordains: “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 thereon, except such as may be rendered for the purchase money, or for specific liens, laborers’ or mechanics’ liens for improving the same, or for taxes, or against executors, administrators, guardians, receivers, attorneys, for moneys collected by them, and other trustees of an express trust, for moneys due from them in their fiduciary capacity. * * * The homestead in any city, town or village, owned and occupied as a residence, shall consist of not exceeding one acre of land, with the improvements thereon, to be selected by the owner. Provided, the same shall not exceed in value the sum of two thousand five hundred dollars,” etc. Art. 9, § § 3, 5-

Under these provisions of the Constitution this court has held that, as there is no restraint upon the debtor selling or conveying his homestead, he may sell, exchange or give it away, and his creditor has no just cause of complaint, for, being exempt, it is no more beyond their reach after transfer than it was before; and that in such alienations there may be a bad motive, but no illegal act. Stanley v. Snyder, 43 Ark. 429, 434; Bogan v. Cleveland, 52 Ark. 101; Campbell v. Jones, 52 Ark. 493; Davis v. Day, 56 Ark. 156; Pipkin v. Williams, 57 Ark. 242.

There is no restraint upon the owner’s disposing of his homestead by deed or other instrument of same effect, except that his wife must join in the execution of the deed or instrument and acknowledge the same (Sand. & H. Dig. § 3713), because his creditors have no claim upon the same. But they have a claim upon the lands which constitute his homestead at the time of his death, and of which he dies seized. After the death of the widow and the minority of the children it becomes an asset for the payment of their claims. Constitution of 1874, art. 9, § 6; Winter v. Davis, 51 Ark. 335; Garibaldi v. Jones, 48 Ark. 230; Nichols v. Shearon, 49 Ark. 75; Bond v. Montgomery, 56 Ark. 563. Any devise of so much of it as constitutes such assets would be in contravention of the rights of the creditors and void.

The widow, Mrs. Hollingsworth, abandoned the homestead of her deceased husband by selling and conveying the land constituting it after his death. Garibaldi v. Jones, 48 Ark. 235. She now claims and holds the land as an independent purchaser under a’deed executed to her by Minnie Strange after such abandonment.

There being- no minor children, the lot in controversy has become an asset in the hands of the administrator of Hollingsworth for the payment of debts. ,

Reverse and remand, with instructions to the court to render a judgment in accordance with this opinion.