Legal Opinion · Dissent

Merrill v. Harris

Supreme Court of Arkansas

Decided June 4, 1898Published

Appeal from Pulaski Circuit Court. Joseph W. Martin, Judge. The only possible excuse for the sale, of the homestead of a minor is to obtain funds for his education and support. Sand. & H. Dig., §§ 3606 et seq. The only case where the probate court has jurisdiction over the homestead is in cases where it exceeds the limit.

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Appeal from Pulaski Circuit Court. Joseph W. Martin, Judge. The only possible excuse for the sale, of the homestead of a minor is to obtain funds for his education and support. Sand. & H. Dig., §§ 3606 et seq. The only case where the probate court has jurisdiction over the homestead is in cases where it exceeds the limit. Sand. & H. Dig., §§ 3698-3701. It can neither be sold to pay debts, nor be partitioned. 49 Ark. 75; 53 Ark. 504; id. 400; 51 Ark. 429; 56 Ark. 563. The probate court has no right, either by statute or constitution, to deal with homestead estates. 51 Ark. 563; Const. Ark. §…

1Dissent

Battle, J.,

(dissenting.) The order of the probate court in question, which directed the sale of the homestead of minors, is a nullity.

What is a homestead? In Williams v. Dorris, 31 Ark. 466, Chief Justice English, in defining it, said: “It is the place of a home or house; that part of a man’s landed property which is about and contiguous to his dwelling house. A homestead necessarily includes the idea of a house for a residence, or mansion house. The dwelling may be a splendid mansion, a cabin, or tent. If there be either, it is under the protection of the law, but there must be a home…

2Cases cited10 opinions

  1. Garibaldi v. JonesSupreme Court of Arkansas · 1886
  2. Tillar v. BassSupreme Court of Arkansas · 1893
  3. Rockafellow v. PeaySupreme Court of Arkansas · 1882
  4. Williams v. DorrisSupreme Court of Arkansas · 1876
  5. Robson v. HoughSupreme Court of Arkansas · 1892

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