Allen v. Smith

Supreme Court of Arkansas

Allen v. Smith

669 S.W.2d 5, 282 Ark. 401, 1984 Ark. LEXIS 1660

CourtSupreme Court of Arkansas

DecidedMay 14, 1984

Docket84-7

StatusPublished

This text of 669 S.W.2d 5 (Allen v. Smith) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Allen v. Smith, 669 S.W.2d 5, 282 Ark. 401, 1984 Ark. LEXIS 1660 (Ark. 1984).

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Opinion

Darrell Hickman, Justice.

The appellee, Louise Smith, owns an interest in a lot in Clarendon, Arkansas, that Alice Allen, the appellant, claims as her homestead. Allen’s husband, who is deceased, was a tenant in common with two others, one of whom was Smith’s predecessor in interest. After Allen’s husband died, Smith filed suit for partition. Allen defended with the argument that the property was her homestead and could not be partitioned. The chancellor was right in holding that Allen could only claim homestead in her husband’s one-third interest and we affirm.

Article 9 § 6 of the Arkansas Constitution, which grants homestead rights to widows, does not bar partition in this case. The homestead right of a widow is a derivative one and she has only the homestead which the husband could have claimed. Therefore, her homestead right is controlled by whatever interest her husband had at his death. Sulcer v. Northwestern National Insurance Co., 263 Ark. 583, 566 S.W.2d 397 (1978); Stuckey v. Horn, 132 Ark. 357, 200 S.W. 1025 (1918). Where a man is a cotenant of property when he dies, then the other cotenants may seek partition after his death, even if the property is claimed by his widow as her homestead. See Best v. Williams, 260 Ark. 30, 537 S.W.2d 793 (1976). Since Allen’s husband was a cotenant at his death, only owning one-third interest, Allen’s homestead interest is in only one-third of the lot and the other cotenants have the right to seek partition of their interest.

This situation is distinguishable from that where the widow has an exclusive possessory interest because her husband died as the sole owner of the property in question. There partition is barred. Gibson v. Gibson, 264 Ark. 420, 572 S.W.2d 148 (1978); Henderson v. Henderson, 212 Ark. 31, 204 S.W.2d 911 (1947); Nichols v. Shearon, 49 Ark. 75, 4 S.W. 167 (1886); Harbour v. Sheffield, 269 Ark. 932, 601 S.W.2d 595 (Ark. App. 1980).

Since Alice Allen had no exclusive possessory right to the land, the cotenants of the property may seek partition.

Affirmed.

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Darrell Hickman, Justice.

The appellee, Louise Smith, owns an interest in a lot in Clarendon, Arkansas, that Alice Allen, the appellant, claims as her homestead. Allen’s husband, who is deceased, was a tenant in common with two others, one of whom was Smith’s predecessor in interest. After Allen’s husband died, Smith filed suit for partition. Allen defended with the argument that the property was her homestead and could not be partitioned. The chancellor was right in holding that Allen could only claim homestead in her husband’s one-third interest and we affirm.

Article 9 § 6 of the Arkansas Constitution, which grants homestead rights to widows, does not bar partition in this case. The homestead right of a widow is a derivative one and she has only the homestead which the husband could have claimed. Therefore, her homestead right is controlled by whatever interest her husband had at his death. Sulcer v. Northwestern National Insurance Co., 263 Ark. 583, 566 S.W.2d 397 (1978); Stuckey v. Horn, 132 Ark. 357, 200 S.W. 1025 (1918). Where a man is a cotenant of property when he dies, then the other cotenants may seek partition after his death, even if the property is claimed by his widow as her homestead. See Best v. Williams, 260 Ark. 30, 537 S.W.2d 793 (1976). Since Allen’s husband was a cotenant at his death, only owning one-third interest, Allen’s homestead interest is in only one-third of the lot and the other cotenants have the right to seek partition of their interest.

This situation is distinguishable from that where the widow has an exclusive possessory interest because her husband died as the sole owner of the property in question. There partition is barred. Gibson v. Gibson, 264 Ark. 420, 572 S.W.2d 148 (1978); Henderson v. Henderson, 212 Ark. 31, 204 S.W.2d 911 (1947); Nichols v. Shearon, 49 Ark. 75, 4 S.W. 167 (1886); Harbour v. Sheffield, 269 Ark. 932, 601 S.W.2d 595 (Ark. App. 1980).

Since Alice Allen had no exclusive possessory right to the land, the cotenants of the property may seek partition.

Affirmed.

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669 S.W.2d 5, 282 Ark. 401, 1984 Ark. LEXIS 1660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-smith-ark-1984.

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