Dent v. Rose

661 S.W.2d 361, 281 Ark. 42, 1983 Ark. LEXIS 1574

• Court: Supreme Court of Arkansas
• Decided: November 28, 1983
• Docket: 83-171
• Status: Published

Opinion

George Rose Smith, Justice.

Jack Farrell Rose died intestate in 1979, survived by his widow (the appellant) and by two sons (the appellees). In 1982 the sons filed a petition in the administration proceedings, asking for a judgment declaring that the widow is not entitled to dower because the dower statutes in force at Rose’s death were unconstitutional as being discriminatory as between men and women. This appeal by the widow is from a j udgment declaring the dower statutes to be unconstitutinal and denying dower.

The probate judge relied upon our decisions in Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), and two similar cases, all of which involved the right of a widow to renounce her husband’s will and elect to take dower instead. The probate judge did not have the benefit of a case decided more recently, in which we explained that the language in Stokes and similar cases was too broad, in that our earlier dower and curtesy statutes were valid in cases of intestacy, because there was no difference between the dower of a surviving wife and the curtesy of a surviving husband. Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983). The appellant is therefore entitled to dower in the present case.

Reversed.