A RK . BRADLEY V. HTJMPHREYS. 141 •.■ BRADLEY V. HUMPHREYS: • 4-3884 Opinion . delivered June 17, 1935. HOMESTEAD OCCUPANCY. — The law does not require continuous occupancy of the 'homestead to continue it as such, but to •constitute an abandonment the owner must leave it with the intention of renouncing and forsaking it. . . 2. HOMESTEAD—ABANDON MENT.—Evidence held to sustain a finding • that a debtor had not abandoned his homestead. 3. HOMESTEAD—RIGHTS OF WIDO .W.—A widow who had no -children • and no separate homestead in her own right succeeded to the homestead right of her husband, and her creditors could not complain that her conveyance of the homestead was fraudulent. 4. HOMESTEAD—OONSTRU MON • OF STATUTE. —Laws pertaining to the homestead rights of a widow and Minor children should be conStrued liberally in their favor. Appeal from Mississippi Chancery Court, Chicka-sawba District ; J. F. Gautney, Chancellor ; affirmed:. T. L. McHaney and C. A: Cunningham, for appellant. C. M. Buck, for appellees. MCHANEY, J. Appellant is the receiver for -the First National Bank of Blytheville, Arkansas, hereinafter called the-bank.. Appellee, Mrs. Humphreys, is the widow of the late Louis Humphreys, who died in California- in 1928. The other appellee, Mrs. Myrtle Sheeley, is the sister of Mrs. Humphreys. . Mrs. Humphreys . and her husband resided in Blythe-ville until 1924, when-they went to California on-account of Mr. Humphreys' health. At that time he was the owner of 21- shares of stock in tbe bank of the par value .of $2,100. He was also the owner Of a homestead in Blythe-ville, the _home in which they. lived prior to their depart-
142 . BRADLEY V. HUMPHREYS. [191 ure for California. After the death of Mr. Humphreys, this stock and the homestead were treated as the property of his widow, but just how she acquired title thereto is not shown. On November 30, 1930, the bank ceased to operate for a time. It was reorganized and reopened for business in February, 1931. In. the reorganization proceedings, the stock of the bank was reduced by one-third. The Humphreys stock was reduced from 21 shares to 14 shares, the old stock being surrendered, and the new stock issued in the name of Mrs. Louis Humphreys. On October 31, 1931, the bank again closed its doors, and was placed in the hands of appellant Bradley as receiver for liquidation. On November 27, 1931, :Mrs. Humphreys mailed to the circuit clerk in Blytheville a . deed to said homestead, conveying same to her sister, • Mrs. Sheeley,• for a consideration expressed in the deed of $10. The deed and acknowledgment . were dated October 1, 1931.. The notary testified that the actual date of . the acknowledgrnent and the signature to the deed was November 5, 1931. Appellant brought this,: action .against appellees to recover judgment against Mrs. Humphreys for $1,400, the assessment of 100 per cent, levied by the Comptroller Of the Currency, on February* 15, 1932, 'against her and all 'other stockholders of the bank, and f Or 'cancellation of the deed from her to her sister, Mrs..Sheeley, as having been made in fraud of creditors, and particularly in fraud of said stock asse§sment. . . Trial resulted in a decree for appellant- for $1,400 against Mrs. Humphreys with interest. The complaint, in so far as it related to Mrs. Sheeley and the' cancellation of the conveyance of the real property in Blytheville to her; was .dismissed for want of equity, because • the court found that the homestead had not been abandoned. From the latter part of this decree this appeal is prosecuted. • Two questions are raised by this appeal : (1) Was the homestead abandoned ? (2) Is the . finding'of the tri.al court that it had -not been 'abandoned against the .preponderance of the evidence? (1) Our Constitution, § 6 of article 9, makes the following provision with reference to the owner of a
ARic.] BRADLEY V. ' HUMPHREYS. 143 • homestead who dies leaving a widow and no children,. as is the fact in this case : the- oWner of a homestead dies, leaving a widow, but no children, and said .widow has no separate homestead in her own right, •the same shalt be exempt, and the rents and profits , thereof shall vest in' her during her -natural life." Then follows the provision relating to *such 'an owner. Who dies leaving children. It is Undisputed in this record that at the time Louis Humphrey§ reni , oved from . Blytheville ,:to Cali-fornia, he was the .Owner of a : homestead. It is a disputed *question of fact as • to' whether he went to' fornia • tempordrily for -his- health 'or permanently for business reasons. 'As stated . in Butler-v. Butler, 176:Ark. 126, 2 S. IV. (2d) 63: 'It is' the rule of law in:this• 'State, announced by many decisions of this court, that the question of whether there has been an abandonment . of a hoMestead ; once eStablished i§ almost: entirelY a. question of intent , on the : part of the homestead' owner SO la do. In other 'words, in Order to censtitute an abandonthent of a homestedd, the- (Avner muSt leaVe it.with the intention of renouncing and forsaking it, or leaving it never return. • The law does no.t require- continuous occupation of the homestead to continue it a§ such." We there , quoted-froth • Euper vy Alkire (t Co.; 37 .Ark. , 283; as- follows : •"When a homestead right . has once attached, a continuous *actual , oCcupation is not indispensable ,for its preservation. It is well settled by • tbe authorities that.-a removal from the homestead for a temporary purpose, ot with the -intention of returning 'and .again -occupying iti;i§ not suCh an abandonment, as will'iorfeit the' homestead right." And in Gillis v. Gillis, 164 Ark. •532, .262 307, .quoted in the -Butler case, we said: • 'The' quOstion of whether 'one who removes from , •his homestead has abandoned same is One of intention, which must be determined from the facts and circUmstarices attending each case." . Here there is ample evidence to support the court's finding that Louis Humphreys did not leave his homestead and go to California for the purpose of abandoning same. It is testified to by the appellees that he left because of the condition of his health, and frequently
144 BRADLEY V. ' HUMPHREYE. [191 talked . of and prepared for returning, but, by the advice of his physician and on account of the -condition of his health, he was constrained to remain" longer. There is some evidence contradicting this testimony, but we -are of the opinion that the preponderance of the eviden6e • supportS the finding that there was no abandonment. At least we cannot' say that the finding is against the preponderance of the evidence. It is conceded that he did not acquire another homestead in California. By the provisions of the Constitution above quoted, the only qualification of the widow's right 'to enjoy the rents and profits of the homestead during her natural life is the clause, "if the owner of the homestead dies, leaving a widow, but no children, and said widow has no separate homestead in her own right." Here; as we have seen, Mr. Humphreys died the owner of a homestead, . leaving a widow and no children, and the widow had• no separate homestead in her own right. She therefore succeeded to the homestead right of her husband. As said in Colum v. ThorUton, 122 Ark. 287, 183 S. W. 205, quoted in the Butler case, supra: "Our Constitution gives the hoinestead to the widow for life, without any restrictions. It is the' settled policy in this State that laws pertaining to the homestead right of the widow and minor children shall be construed liberally in favor of the homestead claimants." And we have many times held that occupancy of the homestead by the widow is not necessary to her right to enjoy the rents and profits, and this, too, even though she marries again and removes to the homestead of her husband. See Butler v. Butler, supra, and Colum -v. •Thorntari, supra. In this -view of the case, it becomes unimportant to discuss the conveyance of Mrs. Humphreys to her sister, for creditors have no right to complain Of the donveyance of a hoinestead. We find no error, and the decree is accordingly affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.