{ "id": 1672611, "name": "Nan B. SULCER v. NORTHWESTERN NATIONAL INS. CO. (of Milwaukee, Wisconsin)", "name_abbreviation": "Sulcer v. Northwestern National Ins.", "decision_date": "1978-06-05", "docket_number": "77-317", "first_page": "583", "last_page": "594", "citations": [ { "type": "official", "cite": "263 Ark. 583" }, { "type": "parallel", "cite": "566 S.W.2d 397" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "200 S.W. 1025", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1918, "opinion_index": 0 }, { "cite": "132 Ark. 357", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1576755 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/ark/132/0357-01" ] }, { "cite": "84 S.W. 1037", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1905, "opinion_index": 0 }, { "cite": "74 Ark. 93", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718438 ], "year": 1905, "opinion_index": 0, "case_paths": [ "/ark/74/0093-01" ] }, { "cite": "234 Ark. 649", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1688418 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/ark/234/0649-01" ] }, { "cite": "255 Ark. 936", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725560 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/ark/255/0936-01" ] }, { "cite": "47 S.W. 2d 50", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "185 Ark. 390", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1435269 ], "opinion_index": 1, "case_paths": [ "/ark/185/0390-01" ] }, { "cite": "14 S.W. 925", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "opinion_index": 1 }, { "cite": "54 Ark. 9", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1320459 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/54/0009-01" ] }, { "cite": "76 S.W. 1073", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "opinion_index": 1 }, { "cite": "71 Ark. 594", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1507779 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/71/0594-01" ] }, { "cite": "3 S.W. 2d 6", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "176 Ark. 442", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1399940 ], "opinion_index": 1, "case_paths": [ "/ark/176/0442-01" ] }, { "cite": "87 S.W. 435", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "75 Ark. 205", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1502563 ], "opinion_index": 1, "case_paths": [ "/ark/75/0205-01" ] }, { "cite": "200 S.W. 1025", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1918, "opinion_index": 1 }, { "cite": "132 Ark. 357", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1576755 ], "year": 1918, "opinion_index": 1, "case_paths": [ "/ark/132/0357-01" ] }, { "cite": "163 S.W. 521", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "111 Ark. 305", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1540377 ], "opinion_index": 1, "case_paths": [ "/ark/111/0305-01" ] }, { "cite": "295 S.W. 392", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "174 Ark. 26", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718170 ], "opinion_index": 1, "case_paths": [ "/ark/174/0026-01" ] }, { "cite": "113 S.W. 2d 97", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "195 Ark. 607", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722997 ], "opinion_index": 1, "case_paths": [ "/ark/195/0607-01" ] }, { "cite": "197 Ark. 472", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721200 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/197/0472-01" ] }, { "cite": "229 Ark. 658", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1702610 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/229/0658-01" ] }, { "cite": "35 S.W. 533", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "62 Ark. 313", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1905668 ], "opinion_index": 1, "case_paths": [ "/ark/62/0313-01" ] }, { "cite": "44 S.W. 1032", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "65 Ark. 68", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 609328 ], "opinion_index": 1, "case_paths": [ "/ark/65/0068-01" ] }, { "cite": "219 Ark. 406", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1609198 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/ark/219/0406-01" ] }, { "cite": "205 F. Supp. 202", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1466535 ], "year": 1962, "opinion_index": 1, "case_paths": [ "/f-supp/205/0202-01" ] }, { "cite": "199 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1456630 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/199/0001-01" ] }, { "cite": "272 S.W. 367", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "168 Ark. 682", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724704 ], "opinion_index": 1, "case_paths": [ "/ark/168/0682-01" ] }, { "cite": "45 Ark. 341", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892052 ], "opinion_index": 1, "case_paths": [ "/ark/45/0341-01" ] }, { "cite": "212 Ark. 31", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1470262 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/ark/212/0031-01" ] }, { "cite": "215 Ark. 570", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1464730 ], "weight": 4, "opinion_index": 1, "case_paths": [ "/ark/215/0570-01" ] }, { "cite": "189 S.W. 182", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "126 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1551702 ], "opinion_index": 1, "case_paths": [ "/ark/126/0001-01" ] }, { "cite": "327 A. 2d 699", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1974, "opinion_index": 1 }, { "cite": "130 N.J. Super. 517", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 300934 ], "year": 1974, "opinion_index": 1, "case_paths": [ "/nj-super/130/0517-01" ] }, { "cite": "8 F. 2d 451", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1662934 ], "year": 1925, "opinion_index": 1, "case_paths": [ "/f2d/8/0451-01" ] }, { "cite": "85 F. 359", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 7852395 ], "year": 1898, "opinion_index": 1, "case_paths": [ "/f/85/0359-01" ] }, { "cite": "43 Am. Rep. 542", "category": "reporters:state_regional", "reporter": "Am. Rep.", "year": 1882, "opinion_index": 1 }, { "cite": "59 Md. 123", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1038931 ], "year": 1882, "opinion_index": 1, "case_paths": [ "/md/59/0123-01" ] }, { "cite": "51 N.W. 522", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1892, "opinion_index": 1 }, { "cite": "90 Mich. 377", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1371378 ], "year": 1892, "opinion_index": 1, "case_paths": [ "/mich/90/0377-01" ] }, { "cite": "63 N.E. 25", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1902, "opinion_index": 1 }, { "cite": "158 Ind. 543", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1529344 ], "year": 1902, "opinion_index": 1, "case_paths": [ "/ind/158/0543-01" ] }, { "cite": "5 F. 2d 326", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1678551 ], "year": 1925, "opinion_index": 1, "case_paths": [ "/f2d/5/0326-01" ] }, { "cite": "60 N.C. 384", "category": "reporters:state", "reporter": "N.C.", "year": 1864, "opinion_index": 1 }, { "cite": "48 N.Y.S. 2d 586", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1944, "opinion_index": 1 }, { "cite": "2 S.W. 2d 63", "category": "reporters:state_regional", "reporter": "S.W.2d", "weight": 2, "opinion_index": 1 }, { "cite": "176 Ark. 126", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1399902 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/176/0126-01" ] }, { "cite": "96 S.W. 2d 482", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "192 Ark. 945", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1415098 ], "opinion_index": 1, "case_paths": [ "/ark/192/0945-01" ] }, { "cite": "41 Ark. 94", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896184 ], "opinion_index": 1, "case_paths": [ "/ark/41/0094-01" ] }, { "cite": "2 S.W. 844", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "48 Ark. 230", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1887710 ], "opinion_index": 1, "case_paths": [ "/ark/48/0230-01" ] }, { "cite": "42 Ark. 539", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725120 ], "opinion_index": 1, "case_paths": [ "/ark/42/0539-01" ] }, { "cite": "84 S.W. 223", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "opinion_index": 1 }, { "cite": "73 Ark. 266", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1504009 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/73/0266-01" ] }, { "cite": "42 S.W. 2d 559", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "184 Ark. 263", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1438490 ], "opinion_index": 1, "case_paths": [ "/ark/184/0263-01" ] }, { "cite": "70 S.W. 2d 40", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "189 Ark. 12", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1425586 ], "opinion_index": 1, "case_paths": [ "/ark/189/0012-01" ] }, { "cite": "222 Ark. 398", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1653115 ], "weight": 4, "opinion_index": 1, "case_paths": [ "/ark/222/0398-01" ] }, { "cite": "83 S.W. 2d 828", "category": "reporters:state_regional", "reporter": "S.W.2d", "weight": 2, "opinion_index": 1 }, { "cite": "191 Ark. 141", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1418532 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/191/0141-01" ] }, { "cite": "183 S.W. 205", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "122 Ark. 287", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1558171 ], "opinion_index": 1, "case_paths": [ "/ark/122/0287-01" ] }, { "cite": "142 S.W. 172", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "101 Ark. 296", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1311103 ], "opinion_index": 1, "case_paths": [ "/ark/101/0296-01" ] }, { "cite": "205 Ark. 937", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1488252 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/ark/205/0937-01" ] }, { "cite": "217 Ark. 30", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717538 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/217/0030-01" ] }, { "cite": "279 S.W. 359", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "170 Ark. 180", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1371658 ], "opinion_index": 1, "case_paths": [ "/ark/170/0180-01" ] }, { "cite": "116 S.W. 2d 612", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "196 Ark. 1178", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 1 }, { "cite": "200 Ark. 406", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453520 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/200/0406-01" ] }, { "cite": "250 Ark. 434", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1636899 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/250/0434-01" ] } ], "analysis": { "cardinality": 1028, "char_count": 21455, "ocr_confidence": 0.837, "pagerank": { "raw": 1.6089625367360343e-07, "percentile": 0.6852447768190346 }, "sha256": "093a4eebf69c67d4ace0c94a7ad418ee049d5970be1ffb2223ac0219b62c40f9", "simhash": "1:1b71247ce708b6cc", "word_count": 3802 }, "last_updated": "2023-07-14T19:12:30.639178+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "George Rose Smith and Hickman, JJ., concur.", "Fogleman, J., dissents." ], "parties": [ "Nan B. SULCER v. NORTHWESTERN NATIONAL INS. CO. (of Milwaukee, Wisconsin)" ], "opinions": [ { "text": "Conley Byrd, Justice.\nAppellant Nan B. Sulcer, in her capacity as personal representative of the estate of her deceased husband, misapplied the funds belonging to the estate. Appellee Northwestern National Insurance Company of Milwaukee, Wisconsin, as the surety on appellant\u2019s bond, Ark. Stat. Ann. \u00a7 62-2211 (Repl. 1971), after making good appellant\u2019s defaults, obtained a judgment against her in the amount of $25,333.33. The trial court ruled that appellant\u2019s property rights (dower rights) in a house and lot located at 941 Cherry Street in Forrest City, Arkansas, were subject to the judgment lien, notwithstanding appellant\u2019s claim of a widow\u2019s homestead exemption, Ark. Const. Art. 9, \u00a7 6. Appellant appeals raising the issues hereinafter discussed.\nThe record shows that, in a proceeding between appellant and her husband\u2019s creditors, the probate court on January 26, 1976, upheld appellant\u2019s homestead exemption as to the house and lot in question. In so doing the probate court stated:\n\u201cIT IS, THEREFORE, BY THE COURT CONSIDERED, ORDERED AND ADJUDGED that the house at 941 Cherry Street be, and it is hereby declared the homestead of Clyde Sulcer, and is free from the claims, executions and attachments of the creditors of Clyde Sulcer, deceased; that the Court makes no ruling as to whether any creditor may have a specific lien against any possible right, title, or interest of any heir and/or devisee in the Cherry Street property.\u201d\nThe record also shows that appellee satisfied the defaults of appellant on September 13, 1976, and that appellee did not obtain its judgment against appellant until June 26, 1977.\nOur cases consistently hold that the burden of proving res judicata is upon the person asserting the bar of the former judgment, Hurst v. Hurst, 255 Ark. 936, 504 S.W. 2d 360 (1974), and Southern Farmers Assn., Inc. v. Wyatt, 234 Ark. 649, 353 S.W. 2d 531 (1962). Furthermore, it was held in Randolph v. Nichol, 74 Ark. 93, 84 S.W. 1037 (1905), that questions expressly reserved by a decree are not concluded thereby. On the record before us it is at once obvious that the record does not support appellant\u2019s contention that the probate court\u2019s allowance of the homestead exemption against the claims of her husband\u2019s creditors is res judicata of her homestead claim as against a personal judgment against her for defaults in her capacity as personal representative of her husband\u2019s estate.\nThe homestead exemption with respect to real property is set forth in Article 9 of our Constitution, as follows:\n\u201c\u00a7 3. Homestead exemption from legal process \u2014 Exceptions. \u2014 The homestead of any resident of this State who is married or the head of a family shall not be subject to the line 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\u2019or mechanics\u2019 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.\n\u00a7 6. Rights of widow and children. \u2014 If the owners 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\nWe note that Article 9, \u00a7 6, supra, with respect to the rights of a widow, only provides that \u201cthe same shall be exempt\u201d but the term \u201cexempt\u201d is not otherwise qualified. However, since the section is prefaced with \u201cIf the owner of a homestead die, . . . ,\u201d the phrase that \u201cthe same shall be exempt\u201d must refer back to the exemption set forth in Section 3, supra, which excepts judgments against executors and administrators from the homestead exemption. See Stuckey v. Horn, 132 Ark. 357, 200 S.W. 1025 (1918), which holds that the homestead right of the widow is a derivative one and that widow has the homestead which the husband could have claimed. Thus, it follows that the exemption set forth in Section 6, supra, is no greater than the exemption set forth in Section 3, supra.\nThe appellant argues that the homestead awarded under Section 6, supra, is the homestead of the deceased husband, not appellant, and since the husband was not indebted as an executor or administrator, the property must, be held exempt from legal process under Section 3, supra. We cannot agree with appellant that the homestead exemption runs in favor of a dead person. The homestead exemption in Section 3 applies only to a \u201cresident of this State who is married or the head of a family.\u201d Needless to say, the language of the Constitution speaks in the present tense in describing the persons entitled to a homestead exemption. Consequently, we find no merit in this contention.\nThe homestead exemption is neither an estate nor a vested interest. The homestead right is only an exemption from legal process. Consequently, the homestead right of appellant is not property upon which an execution may be levied. However, in so far as appellant has a dower right in the property, the trial court correctly held that the homestead exemption Article 9, \u00a7 6, supra, did not prevent appellee from causing a writ of execution to be levied upon the dower interest. What benefits the husband\u2019s creditors may receive from the affirmation of the trial court\u2019s decree is not an issue before us on this appeal.\nAffirmed.\nGeorge Rose Smith and Hickman, JJ., concur.\nFogleman, J., dissents.", "type": "majority", "author": "Conley Byrd, Justice." }, { "text": "John A. Fogleman, Justice,\ndissenting. This is a dissenting opinion largely because I simply cannot understand how a judgment can be affirmed when the end result of the opinion, as I read the last paragraph, actually sustains appellant\u2019s argument that, as stated in her point 11 for reversal, \u201cThe exception in Article 9, \u00a7 3 of the Constitution of Arkansas does not apply to the appellant and the estate of Clyde Sulcer, deceased, is entitled to the homestead exemption. The court erred in failing to so hold.\u201d It is also a dissenting opinion since the language leading up to the concluding paragraph seems to be either inconsistent with that paragraph or dictum, and I cannot agree with that language. One further reason it is a dissenting opinion is that I do not agree that the trial court ruled that appellant\u2019s property rights (dower rights) were subject to the lien. The complaint contained an allegation that appellee was entitled to levy execution upon the homestead property located at 941 Cherry Street. In the answer appellant pleaded res judicata and the homestead exemption. The dower rights were never p\u00fct in issue. The memorandum findings of the chancellor were that appellee was entitled to levy execution against the homestead property.\nThe court\u2019s judgment stated that it was a lien against appellant\u2019s interest in said property and that the property was not immune from execution by reason of Art. 9, \u00a7 3 of the Constitution of Arkansas. It was adjudged that appellee was entitled to levy execution on defendant\u2019s interest in said property \u201cfree and clear of any homestead exemption.\u201d How the mandate of this court can be written as an affirmance of that judgment is a puzzle I can\u2019t solve. I disagree with the quoted language in that judgment, which is the only point in issue on this appeal and I disagree with the language of the majority opinion on the subject of homestead except for the last paragraph.\nI would first point out that, under our constitution, Nan B. Sulcer did not have a homestead in the property involved in her own right. Hers was a derivative right in the homestead of her deceased husband. It is quite clear that a wife may have a homestead in her own right in her own property, and that when she does, it comes within the purview of Art. 9, \u00a7 3 of the Constitution of Arkansas. Gibson v. Barnett, 75 Ark. 205, 87 S.W. 435. Art. 9, \u00a7 6 of the Constitution recognizes that a widow may have a homestead in her own right. When she does, she has no right to the husband\u2019s homestead by the plain language of the statute, i.e., if she selects a homestead on her own property after the death of her husband. Bruce v. Bruce, 176 Ark. 442, 3 S.W. 2d 6; Wilmoth v. Gossett, 71 Ark. 594, 76 S.W. 1073; Thompson v. King, 54 Ark. 9, 14 S.W. 925. In Bruce, the difference between the homestead of the wife and the homestead of the widow is emphasized. See also, Stone v. Stone, 185 Ark. 390, 47 S.W. 2d 50, where it was held that a wife could have rights in the homesteads of two husbands who predeceased her. We clearly recognized rather recently this distinction in homestead rights under \u00a7\u00a7 3 and 6 of Art. 9 in Monroe v. Monroe, 250 Ark. 434, 465 S.W. 2d 347, after first quoting \u00a7 3 verbatim, we said:\nThis section of the constitution applies to either the wife or husband when married, and to either of them, or to anyone else who is the head of a family, whether married or not. Consequently, any resident of this state of either sex, who is married, or who is the head of a family, is entitled to the exemption of a homestead under the constitution. Thompson v. King, 54 Ark. 9, 14 S.W. 925.\nIn addition to a married woman\u2019s right to homestead- exemption, she has certain constitutional rights as a widow in the homestead of her deceased husband as set out in \u00a7 6 of Article 9 of the constitution, which is as follows:\nWe then quoted \u00a7 6 in full.\nThe homestead involved here is that of appellant as widow of Clyde Sulcer, deceased and not in her own right, and the fact that she stipulated that the land in question was \u201cthe homestead of the defendant\u201d certainly does not convert the homestead into one owned in her own right, instead of her homestead as widow of Clyde Sulcer. The homestead of the widow in the lands of her deceased htisband is also \u201cher homestead.\u201d See Smart v. Murphy, 200 Ark. 406, 139 S.W. 2d 33; Gill v. Dunn, 196 Ark. 1178, 116 S.W. 2d 612; Murphy v. Graves, 170 Ark. 180, 279 S.W. 359. It was stipulated that the property was acquired by Clyde Sulcer and that title remained in his name until his death. The probate court had declared the property to be the homestead of Clyde Sulcer.\nAppellant\u2019s homestead in her husband\u2019s lands was subject to the lien of such judgment or decree as might be rendered against him as an executor or administrator for moneys collected by him, but not to a judgment against appellant for moneys collected by her as a personal representative. See Art. 9, \u00a7 3. The rights of the widow are not covered, or even mentioned in that article.\nThe rights of the widow are derivative. Jordan v. Jordan, 217 Ark. 30, 228 S.W. 2d 636; Cole v. Sparks, 205 Ark. 937, 172 S.W. 2d 20; Stuckey v. Horn, 132 Ark. 357, 200 S.W. 1025; Spalding v. Haley, 101 Ark. 296, 142 S.W. 172. Mrs. Sulcer had the right to the homestead her husband could have claimed, subject to the same qualifications. Stuckey v. Horn, supra; Spalding v. Haley, supra; Cole v. Sparks, supra. Her own rights are governed by Art. 9, \u00a7 6, not by Art. 9, \u00a7 3. According to Art. 9, \u00a7 6, the homestead \u201cshall be exempt.\u201d There are no exceptions to the exemption. The widow\u2019s rights are not described or mentioned in Art. 9, \u00a7 3 and the word \u201cexempt\u201d is not used anywhere in that section. It is rather difficult for me to see how one could resort to the earlier section for a definition of the word \u201cexempt\u201d when that word is neither used nor defined there.\nThe homestead laws are remedial and are to be liberally construed in favor of the widow to effect the benign and beneficent purposes for which they are intended. Colum v. Thornton, 122 Ark. 287, 183 S.W. 205; Bradley v. Humphreys, 191 Ark. 141, 83 S.W. 2d 828; Stuckey v. Horn, supra; Van Pelt v. Johnson, 222 Ark. 398, 259 S.W. 2d 519; Bunting v. Rollins, 189 Ark. 12, 70 S.W. 2d 40; Franklin Fire Ins. Co. v. Butts, 184 Ark. 263, 42 S.W. 2d 559. We reviewed earlier authorities on these purposes in Grimes v. Luster, 73 Ark. 266, 84 S.W. 223, viz:\n* * * The protection of the family from dependence and want is the object of all homestead laws.\u201d Harbison v. Vaughan, 42 Ark. 539. \u201cOne of the objects of the Constitution is to secure to the widow and orphan the family rooftree as a fixed home during the widowhood or life of the widow and minority of the children. \u201d Garibaldi v. Jones, 48 Ark. 230, 2 S.W. 844. \u201cLooking to the ultimate purpose of such provisions, the protection of the debtor\u2019s family against the vicissitudes of fortune.\u201d Ward v. Mayfield, 41 Ark. 94. * * *\nAll presumptions are in favor of the preservation and retention of the homestead. City National Bank v. Johnson, 192 Ark. 945, 96 S.W. 2d 482. We must determine the meaning of the word \u201cexempt\u201d in the light of the pertinent rule of liberal construction. To refer this word to the clause of \u00a7 3, to which resort is made by the majority, is certainly liberal to the creditor, not the widow. This approach also requires that the clause from \u00a7 3 be tacked onto the word \u201cexempt\u201d in \u00a7 6 so that \u00a7 6 says that the homestead shall be exempt \u201cfrom the lien of any judgment, or decree of any court, or the sale under execution or other process thereon, except such as may be rendered for purchase money or for specific liens, laborers\u2019 or mechanics\u2019 liens for improving the same, or for taxes, or against executors, administrators, guardians or receivers, attorneys for moneys collected by them and other trustees of an express trust for moneys due from them in their fiduciary capacity.\u201d To do this requires that the words \u201cnot be subject to\u201d be translated to mean \u201cfrom.\u201d They do not. We have said that under the plain provisions of Art. 9, \u00a7 6, the homestead of the husband became the wife\u2019s for life, exempt from any debts. Butler v. Butler, 176 Ark. 126, 2 S.W. 2d 63.\nWe should look for the most liberal definition of the word \u201cexempt,\u201d i.e., the one most favorable to the widow. \u201cExempt\u201d means \u201cto release, discharge, waive, relieve from liability.\u201d Davidow v. Jenks, 48 N.Y.S. 2d 586 (1944). It has been ascribed the following meaning: \u201cto take out of or from,\u201d \u201cto free from\u201d any service or burden to which others are subject. In the Matter of Sowers, 60 N.C. 384 (1864). The word \u201cexemption\u201d means the act of exempting or the state of being exempt. Webster\u2019s New International Dictionary (2d Ed.). The provisions of Art. 9, \u00a7 6 created an exemption by declaring that the homestead \u201cshall be exempt.\u201d The mere fact that the land was a homestead would not have made the land exempt, in the absence of the pertinent constitutional language creating an exemption. This distinction is pointed out in In re Trammell, 5 F. 2d 326 (N.D. Ga., 1925), viz:\nLet it be remembered that a \u201chomestead\u201d and an \u201cexemption\u201d are quite different things. A \u201chomestead\u201d is properly \u201cthe home place \u2014 the home and the adjoining land.\u201d Bouvier, Law Diet. (3d Ed.). It is therefore realty. When established according to statutory requirements, it is commonly made exempt from forced sale, and the family is often given special rights in it. An \u201cexemption\u201d is \u201cthe right given by law to a debtor to retain a portion of his property without its being liable to execution at the suit of a creditor or to distress for rent. \u201d Bouvier, Law Diet. (3d Ed.). This right of the debtor may refer to realty, personalty, or both. ***\nIt behooves us then to see what the word \u201cexemption\u201d means. It is an immunity or privilege. State v. Smith, 158 Ind. 543, 63 N.E. 25 (1902); People v. Rawn, 90 Mich. 377, 51 N.W. 522 (1892); Green v. State, 59 Md. 123, 43 Am. Rep. 542 (1882). In Bartholomew v. City of Austin, 85 F. 359 (5 Cir., 1898), the court said:\n*** \u201cExemption\u201d means free from liability, from duty, from service. It is a grace, a favor, an immunity; taken out from under the general rule, not to be like others who are not exempt; to receive, and not make a return..\nIn Clark v. Nirenbaum, 8 F. 2d 451 (5 Cir., 1925), the same court said:\nAn exemption is the freedom of property of debtors from liability to seizure and sale under legal process for the payment of their debts.\nA statement found in General Motors Acceptance Corp. v. Falcone, 130 N.J. Super. 517, 327 A. 2d 699 (1974) relating to personal property, but appropriate to the context of this case, is:\nExemptions as the term is used in connection with the rights of creditors seeking to secure their debts can be said to be the right of a debtor to retain a portion of his personal property free from seizure under judicial process. 31 Am. Jur. 2d, Exemptions, \u00a7 1.\nA liberal construction of Art. 9, \u00a7 6 means that the homestead rights of Mrs. Sulcer were immune from seizure under judicial process subject only to the qualifications applicable to Clyde Sulcer. We should read it that way.\nMy position is reinforced by the fact that the widow\u2019s right in her husband\u2019s homestead is the kind of interest that almost defies definition. We have not always been consistent in attempting to classify it, having said at times that it was not an estate at all, but only the privilege of occupancy. See Neeley v. Martin, 126 Ark. 1, 189 S.W. 182. Our latest, and perhaps best effort, to define it was in the opinion in Maloney v. McCullough, 215 Ark. 570, 221 S.W. 2d 770, where we said:\nHomestead is a valuable right, interest or estate in land which vests in the widow \u201cduring her natural life\u201d under Art. 9, Sec. 6 of our Constitution unless and until abandoned or forfeited by the widow.\nThe right is purely personal to the widow. Neeley v. Martin, supra. In Henderson v. Henderson, 212 Ark. 31, 204 S.W. 2d 911, it is described as \u201cindividual and indivisible.\u201d\nI ask, if the homestead right is one which the widow can abandon or forfeit, upon what can appellee levy or what will the purchaser at a sale buy? If Mrs. Sulcer leaves this homestead and establishes one of her own on her own lands, she may be taken to have abandoned her homestead on her husband\u2019s lands, for she cannot have two homesteads, and she, and no one else, has the right of election. Wilmoth v. Gossett, 71 Ark. 594, 76 S.W. 1073; Davenport v. Devenaux, 45 Ark. 341; Van Pelt v. Johnson, 222 Ark. 398, 259 S.W. 2d 519. Cf. Butler v. Butler, 176 Ark. 126, 2 S.W. 2d 63. See also, Grimes v. Luster, 73 Ark. 266, 84 S.W. 223. The rents and profits from the land are vested in her, but any attempt, by her to convey her rights constitutes an abandonment. Warren v. Martin, 168 Ark. 682, 272 S.W. 367; Sheppard v. Zeppa, 199 Ark. 1, 133 S.W. 2d 860. Her creditors would have no right to complain about the conveyance. Bradley v. Humphreys, 191 Ark. 141, 83 S.W. 2d 828. She would also abandon her homestead rights if the heirs sought to partition it, and she did not assert her rights. Henderson v. Henderson, supra. Since her right is personal, I do not see how either appellee, or the purchaser at an execution sale, if there could by any stretch of the imagination be one, could assert it. All that 1 can see that the judgment in this case would accomplish is the ouster of the widow.\nAn excellent summary of the Arkansas law in this respect which illustrates this point is found in the opinion of Chief Judge (now Circuit Judge) Henley in U.S. v. 164.51 Acres of Land, Etc., 205 F. Supp. 202 (E.D., 1962). He said:\n*** In Arkansas the \u201chomestead estate\u201d created by the Constitution is not a conventional life estate, although it is frequently called such and, indeed, for certain purposes is such. See in this connection: Jones \u201cArkansas Titles,\u201d \u00a7 893 including 1959 Annotated Supplement; Meadows v. Hardcastle, 219 Ark. 406, 242 S.W. 2d 710; Maloney v. McCullough, 215 Ark. 570, 221 S.W. 2d 770; Killeam v. Carter, 65 Ark. 68, 44 S.W. 1032; Barnett v. Meacham, 62 Ark. 313, 35 S.W. 533. It differs from the conventional life estate in that it is purely personal to the widow and minor children of the decedent. While the widow is not required to live upon the homestead premises, and while a re-marriage by her does not deprive her of homestead rights, still, her interest being personal to her is not transferable, and a sale by her of the homestead interest or of the lands affected by the homestead estate conveys nothing to the grantee but amounts to an abandonment of the homestead by the widow, which gives the heirs a right to the immediate possession of the property. Meadows v. Hardcastle, supra; Stover v. Holman, 229 Ark. 658, 317 S.W. 2d 722; Rone v. Sawrey, 197 Ark. 472, 123 S.W. 2d 524; Henry v. Dollin, 195 Ark. 607, 113 S.W. 2d 97; Clark v. Friend, 174 Ark. 26, 295 S.W. 392; Brinkley v. Taylor, 111 Ark. 305, 163 S.W. 521; Barnett v. Meacham, supra.\nI would reverse the judgment, both in substance and form.", "type": "dissent", "author": "John A. Fogleman, Justice," } ], "attorneys": [ "Killough & Ford, by: Robert M. Ford, for appellant.", "Rieves, Rieves & Shelton, for appellee." ], "corrections": "", "head_matter": "Nan B. SULCER v. NORTHWESTERN NATIONAL INS. CO. (of Milwaukee, Wisconsin)\n77-317\n566 S.W. 2d 397\nOpinion delivered June 5, 1978\n(In Banc)\nKillough & Ford, by: Robert M. Ford, for appellant.\nRieves, Rieves & Shelton, for appellee." }, "file_name": "0583-01", "first_page_order": 613, "last_page_order": 624 }