GILL v. GILL.

It were more in harmony with a spirit of "humane, liberal construction," to so interpret the words in our law, "owned and occupied as a residence," as to require the ownership and occupancy to exist at the time the exemption is claimed, and without regard to the date of any lien arising by mere operation of law, such as an execution lien or the lien of creditors. upon the realty of a deceased debtor. That construction, and only that, can be in harmony with the true spirit of effective exemption laws.

But the adjudications of a tribunal whose opinions I hold in high esteem, and by which the Pulaski Chancery Court must be governed, say that occupancy as a residence at the time the creditor's lien attaches is essential to stamp the homestead character upon the land in such manner as will enable the owner, or those who may succeed to the homestead rights, to claim it as exempt from sale for debts.

And in this case unless the homestead rights of the defendants may be based upon a constructive occupancy of the premises by R. G. Gill prior to his death, they have no homestead rights in the property superior to the possessory right of the plaintiff, as administratrix, or paramount to the lien of creditors; for under our law as interpreted by the supreme court, the wife and children can acquire homestead rights in such property only as constituted the homestead of the husband and father during his life. On this subject homestead char English, C. J., for the court, says: "The widow cannot create a homestead right in the land of the husband after his death. He must have impressed the homestead character upon the land during his life, and she must succeed him in that right.18

9. Husband

must impress

acter on estate.

But, in the language of Mr. Freeman, "The homestead laws have an object perfectly well understood, and in the promotion of which courts may well employ the most liberal and humane rules of interpretation. This object is to assure to

(18.) Hoback v. Hoback et al., 33 Ark., 399, 404; Johnson v. Turner, Administrator, 29 Ark., 280.

GILL v. GILL.

the unfortunate debtor, and his equally unfortunate but more helpless family, the shelter and the influence of home."19 And if it be that Mr. Gill had, during his life, such constructive occupancy of the land as impressed it with the characteristics of a homestead, his widow and children may General character. now hold it as such against the administratrix, and as against the rights of ordinary creditors of his estate.

9. Homestead

The estate in a homestead is a peculiar one, created by law for the benefit of the husband and the wife and children, as already shown. The infant children cannot convey or abandon it; and under our statute the husband cannot convey or encumber it without the consent of the wife.20 It may be likened to a joint tenancy with the right of survivorship.21 No partition can be made of it as between husband and wife, or between the widow and children.22 Nor can the widow and children lessen or impair the rights of each other therein; the abandonment by the mother cannot impair the rights of the children.23

In this, and a number of other States, it is held that a cotenant, in pedal possession of the land, has such a right of homestead in the estate held by him in common with another, that "he may, after execution has been levied on the land, have partition made of it, and by fixing his dwelling on the part set apart to him, have the benefit of the homestead exemption.24 And this right descends to his widow and children under twenty-one years of age.25 The reason for this is, that "a cotenant may lawfully occupy every parcel of the lands of the cotenancy. He may employ them not merely for cultivation or for other means of making profits, but may also build houses and barns, plant shrubs and flowers, and surround him

(19.) Freeman's Cotenancy and Partition, § 54.

(20.) Acts of 1887, 90; Pipkin v. Williams, 57 Ark., 242, 246.

(21.) Taylor v. Hargous, 4 Cal., 268; Poole v. Gerrard, 6 Cal., 71.

(22.) Nicholas v. Purczell, 21 Iowa, 285.

(23.) Walters r. People, 21 Ill., 178: Garibaldi v. Jones, 48 Ark., 231; Sansam v. Harrell, 55 Ark., 572.

(24.) Sentell v. Armor, 35 Ark., 50; Greenwood v. Maddox, 27 Ark., 648.

(25.) Ward v. Mayfield, 41 Ark., 94.

GILL v. GILL.

self with all the comforts of a home. His wife and children may, of right, occupy and enjoy the premises with him.

Upon the land of which he is but a part owner he may, and in fact he frequently does, obtain all the advantages of a home. These advantages are none the less worthy of being secured to him and his family in adversity, because the other cotenants are entitled to equal advantages in the same home. That he has not the whole is a very unsatisfactory, and a very inhumane reason for depriving him of that which he has."26

Mr. Thompson, in criticism of courts which hold the opposite view of this question, says: "One can easily imagine cases where the rule that there can be no homestead in estates held in common would work peculiar hardship to poor debtors, and defeat the apparent purposes of the homestead laws. Thus, the parents die, leaving two sons, their sole heirs, in possession of the home farm. They, finding the premises incapable of an equitable partition without sale, and knowing that the property would be sacrificed by sale, determined to reside. together, with their respective families, in the common dwelling, and work the farm in common. Under the view animadverted upon, neither can claim a homestead therein as against creditors, although the value of his interest is less than the value of the statutory exemption. But it is not necessary to search the imagination for hard cases, for the books furnish them. Thus, in one case, the right of the homestead was denied in lands held by a husband, his wife and their child, as tenants in common. It was also denied, in favor of a creditor, to a tenant who was the sole occupant. of the premises, holding title to an undivided seventeeneighteenths of the entire estate, which title he had purchased under the belief that he had acquired the entire estate. The absurdity of such rulings is illustrated by the fact that if he had been a naked trespasser, disputing the title of the real

(26.) Freeman's Cotenancy and Partition, § 54.

GILL v. GILL.

owner, the same court would have accorded to him the benefit of the exemption against his creditor."27

The word homestead, found in section 6 of the Constitution heretofore quoted in full, is not defined by any language in the section itself; nor is there anything in that section to indicate the character of the occupancy contemplated by the members of the Convention who ordained it. But the two preceding sections of the article declare one of the essential elements of a homestead to be occupancy as a residence; and the presumption is, that the Convention attached to the word the same force and import, and intended its signification to be the same in the latter as in the two former sections. The authorities universally treat the word homestead as signifying a home, a dwelling place.28 And the language employed in the section under consideration is: "If the owner of a homestead"—not the owner of 160 acres of land, or a town lot— "die leaving a widow the same"-not some other character of property-"shall be exempt," etc.

*

* *

But, conceding that to constitute a homestead there 10. Occupancy- must be an occupancy, it does not necessarily Character of. follow that it must be actual. Many of the adjudged cases hold that actual occupancy is essential, that it may serve to notify the world of the place claimed as exempt by the owner.29 "Exceptional circumstances may arise, however," say other authorities, "where the unexecuted intention of the claimant may be construed into the legal equivalent of actual occupancy of the premises claimed."

Otherwise, two debtors to the same judgment creditor might each own a home, and should they exchange homes by delivering deeds to each other before they moved on their newly acquired estates, and the creditor should levy executions on them before they moved upon the lands, two families

(27.) Thompson on Homesteads. § 188; McClary v. Bixby, 36 Vt., 254; Thorn v. Thorn, 14 Iowa, 49; Williams v. Wethered, 37 Tex., 130; Tarrant v. Swain, 15 Kan., 146; Horn v. Tufts, 39 N. H., 478.

(28.) Tumlinson v. Swinney, 22 Ark., 400, 404.

(29.) Christy v. Dyer, 14 Iowa, 438, 441.

GILL v. GILL.

would be made homeless by a construction which makes the mere failure of the head of each to occupy property at a time he had no title to it, or right of occupancy in it, a bar to homestead rights.30

Again, a bachelor, through a real estate agent, buys a lot, by a contractor, superintended by an architect, builds a house on it for a home, in contemplation of marriage; through his mother purchases furniture, and gets his brother to move the furniture into the house; he boards the train for a neighboring town, and there is wedded to the mother of several dependent children, a widow who, induced by the prospect of marriage and a better home than the humble one she had been compelled to occupy during her widowhood, sells hers and gives him the proceeds of the sale before the accident which follows (which she might legally do) and a defective rail causes a wreck, and by it he is killed. The realty had been bought for him by a real estate agent, the house had been built by a contractor and its construction superintended by an architect; the furniture had been purchased by his mother, under his directions, and moved into the house by a brother; he had never slept in the house, no fire had been lighted in the furnace, heating stove, cooking stove, range or grate; in fact, he had done nothing that could constitute an actual occupancy. Under such circumstances should his creditors be given not only the money which legally belonged to him by the gift from his wife, the proceeds of the sale of her home, but the roof tree prepared for her as well? Or should a court say that the circumstances, the unexecuted intention. of the man when he became a husband constituted that which is the legal equivalent of actual occupancy? Justice, equity, and a "humane, liberal construction" demand that the latter be answered in the affirmative. The foregoing, of course, are improbable, but not impossible cases; and are used to illustrate the injustice that may be wrought by adhering to the doctrine of the essentiality of actual occupancy, pedis

(30) Monroe r. May, 9 Kan., 466, 475.