{
  "id": 1652920,
  "name": "Smith v. Wofford, Guardian",
  "name_abbreviation": "Smith v. Wofford",
  "decision_date": "1953-06-22",
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    "parties": [
      "Smith v. Wofford, Guardian."
    ],
    "opinions": [
      {
        "text": "Robinson, Justice.\nOn petition of Earlene Smith Wofford, guardian of the estates of Dorothy Dianne Smith and Alvin Burris Smith, Jr., minors, the probate court ordered the sale of the minors \u2019 homestead. At the time of his death, the deceased parent whence came the homestead owed debts which were apparently amply secured. The appellant, J. Henley Smith, filed a remonstrance to the petition of the guardian to sell the homestead and has appealed from the order of the court allowing the sale.\nWe reach only one point, and that is can a minor\u2019s homestead be sold where the parent who owned the homestead at the time of his death owed debts; and the answer is no.\nArk. Stat., \u00a7 57-639, provides for the sale of a minor\u2019s homestead, but even under this statute the minor\u2019s homestead cannot be sold when the parent leaving the homestead also left debts.\nArt. 9, \u00a7 6, of the Constitution of Arkansas is as follows: \u201cIf 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 \u2014 each child\u2019s right to cease at twenty-one years of age \u2014 and the shares to go to the younger children, and then all to go to the widow, and provided that 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.\u201d\nIn Merrill v. Harris, 65 Ark. 355, 46 S. W. 538, 41 L. R. A. 714, it was held that a minor\u2019s homestead when the parent leaving the homestead owed no debts could be sold on order of the court; but in Tipton, Adm., Ex Parte, 123 Ark. 389, 185 S. W. 798, it was held that the probate sale of the homestead by a guardian in cases where there are debts is absolutely void; and the principle announced in the Tipton case was approved in Dodd v. Hopper, 182 Ark. 24, 30 S. W. 2d 837; Rushing v. Horner, 130 Ark. 21, 196 S. W. 468; and Puckett v. Glendenning, 135 Ark. 551, 205 S. W. 454. The case of Penney v. Vessells, 221 Ark. 389, 253 S. W. 2d 968, in no way impairs the holding in the above cases because in that case the sale of the minor\u2019s homestead where there were debts was not involved.\nAppellee urges that the Tipton ease and other cases adhering to the principle therein announced should be overruled, and to affirm the ease at bar, those cases would have to be overruled. The Constitution gives the minor children the privilege of sharing the homestead with the widow, and provides that they are entitled to half the rents and profits until they arrive at 21 years of age. In the Tipton case, Mr. Justice Hart said: \u201cAs we have already seen the framers of our Constitution plainly intended to preserve for the minor the homestead exemption of the parents after their death and to prevent the sale thereof for the debts of the parents during the minority of the children and it has always been the policy of this court to give such a liberal construction to the homestead laws as will best effectuate this humane intention of the framers of the Constitution.\u201d Judge Hart then points out that when there are debts, it may not be possible upon the sale of the homestead to protect the minor\u2019s homestead interests as guaranteed by the Constitution; whereas when there are no debts, there would be no reason for the property not selling for its full value, the minor thereby getting the full benefit of the value of the homestead.\nWe adhere to the principle announced in the Tipton ease. Therefore, the judgment is reversed.",
        "type": "majority",
        "author": "Robinson, Justice."
      },
      {
        "text": "Ed. F. McFaddin, Justice\n(Concurring). I concur for the purpose of calling special attention to Mr. Justice Battle\u2019s dissenting opinion in Merrill v. Harris, 65 Ark. 355, 46 S. W. 538, 41 L. R. A. 714, which dissenting opinion I think should be adopted \u2014 to operate prospectively \u2014 as the correct interpretation of Art. IX, \u00a7 6, of our Constitution: the effect of adopting such dissenting opinion would be to prohibit the sale of a homestead \u2014 in all instances except under lien foreclosure proceedings \u2014 while any of the children remained under 21 years of age.\nThe said Art. IX, \u00a7 6, of the Constitution, provides:\n\u201cIf 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 the said widow and be entitled to half the rents and profits till each of them arrives at twenty-one years of age \u2014 each child\u2019s right to cease at twenty-one years of age \u2014 and the shares to go to the younger children, and then all to go to the widow, and provided that 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.\u201d\nThis Constitutional provision says that while a child is under 21 years of age, said child shall be entitled to the \u201crents and profits\u201d of the homestead. If the homestead is sold under any guise whatsoever, then certainly the child is deprived of the \u201crents and profits\u201d of the homestead: to allow the homestead to be sold is to defeat the protection and rights which the Constitution guarantees to the minor children.\nJustice Battle expressed it this way:\n\u201cA sale of such lands during the minority of the children tends to'defeat the magnificent policy of the constitution, and should be treated by all courts as void.\n\u201cIt follows that the probate court cannot sell the fee in the land without defeating the spirit and intent of the constitution. It seems to me that no argument or authority is necessary to prove that the constitution, from which it derives its jurisdiction, did not vest the probate court with the authority to defeat its policy or violate any of its provisions.\u201d\nWhen the majority held \u2014 as it did in Merrill v. Harris, supra \u2014 that the homestead could be sold when the ancestor left no debts, then this Court had to point out in Tipton, Ex parte, 123 Ark. 389, 185 S. W. 798, that the homestead could not be sold when there were debts. Then the Legislature, by \u00a7 226 of Act No. 140 of 1949 (\u00a7 57-639 Ark. Stats.), sought to broaden the holding in Tipton, Ex parte. The majority holding in the present case is that the Statute, (\u00a7 57-639 Ark. Stats.) is unconstitutional insofar as it affects the rights of a minor in the homestead of an ancestor who owed debts.\nTo my mind, the simple solution of the whole problem is to adopt \u2014 with prospective application \u2014 Justice Battle\u2019s dissent in Merrill v. Harris; and when such result is achieved, we will get back to the spirit of the Constitution and to the protection which it accords to minors. In the hope that this may some day come to fruition, I am writing this concurring opinion.",
        "type": "concurrence",
        "author": "Ed. F. McFaddin, Justice"
      }
    ],
    "attorneys": [
      "George H. Steimel, for appellant.",
      "W. J. Schoonover, for appellee."
    ],
    "corrections": "",
    "head_matter": "Smith v. Wofford, Guardian.\n5-162\n259 S. W. 2d 507\nOpinion delivered June 22, 1953.\nGeorge H. Steimel, for appellant.\nW. J. Schoonover, for appellee."
  },
  "file_name": "0315-01",
  "first_page_order": 339,
  "last_page_order": 343
}