I do not agree with the conclusion reached by the majority as to the facts in the case, but it would serve no useful purpose to set forth the proof in the record upon which my own conclusions is reached that the finding of the chancery court should not be disturbed. Suffice it to say that my opinion is that the finding of the chancellor was not against the preponderance of the evidence, and that the decree should for that reason be affirmed.
I dissent from that portion of the opinion of the majority which holds that the execution of the mineral deed by Amanda Johnson to appellee Martin constituted an abandonment of the former's homestead right. It is, I think, a misapplication of the rule of law which has often been announced by this court that a conveyance by a widow of the homestead constitutes an abandonment of the homestead right, to say that a mineral deed or a sale of royalties without denuding herself of the occupancy or surface rights operates as an abandonment. This is an extension of the rule which is not warranted by anything said in our former decisions on the subject, but, on the contrary, is, I think, in hostility to the very reason upon which the rule is based. The first opinion on this subject was written by Judge BATTLE in the case of Garibaldi v. Jones, 48 Ark. 230. In declaring the law as to the right of the widow to alienate the homestead, he said: "The *Page 696 law is not concerned about the precise locality of the family at any time, but it is concerned that, wherever they be carried by convenience, chance or misfortune, there shall be a place, a sanctuary, to which they may return to find the shelter, comfort and security of a home. * * * One of the objects of the Constitution its to secure to the widow and orphans the family roof-tree as a fixed home during the widowhood or life of the widow, and minority of the children. It would be clearly against the policy and spirit of the Constitution, in thus providing a home for her, to permit her to alienate it, and to allow others to enjoy the benefits of the homestead of a deceased husband and father, which were only intended for the widow and orphan. If she could do so, the exemption which passes, under the Constitution, to the widow and minor children upon the death of the husband and father, would not be a reservation of a homestead, but a reservation of land of a certain quantity or value, irrespective of its uses."
It is thus seen that the reason upon which the rule is based, that an attempted alienation constitutes an abandonment, is that it deprives a widow of the very thing which is guaranteed to her by the Constitution. The widow has the right, however, to the complete and full enjoyment of the homestead with all of its uses, and by making use of the benefits in any manner short of a conveyance which would deprive her of those uses, she does not abandon that right. The sale of mineral rights with a reservation of royalties is in effect the same as a lease. It does not deprive the widow of any surface rights except those specially granted in order to enjoy the mineral rights, and the right of occupancy is not substantially restricted or cut off. The enjoyment by her of mineral rights is restricted, the same as any life tenant, to wells or mines already opened, and if she goes beyond her rights and attempts to open new wells or mines, she can be restrained by the remainderman, but the attempt to go beyond her rights in that respect does not constitute an abandonment, so long as she does not denude herself of the right of occupancy. *Page 697
There is still another reason why the execution of the mineral deed by Amanda Johnson should not be treated as an abandonment. The mineral deed was executed after the execution of the deed to her from appellant conveying the title in fee, and, if that deed is set aside, the mineral deed falls with it and should not be treated as an abandonment of the homestead right which the widow had independent of the deed executed too her by appellant. A court of equity, in setting aside the deed executed by appellant and restoring her to her rights, should not grant to her greater rights than she enjoyed before the execution of the deed. To do so is to convert the arm of the court into a sword rather than a shield.
I am in entire accord with the court in holding that the acceptance of rentals by Amanda Johnson after the stipulated date of maturity prevented a forfeiture of the original lease executed by S. L. Johnson to Edwards. The property was the homestead and passed to the widow after the death of the husband. The widow was entitled to the rentals as long as she lived or until she abandoned the homestead, and since the rentals went to her exclusively, she had the right and power to waive the date of payment. She could have exonerated the lessee from paying at all as long as she was in possession of the homestead, enjoying her rights as widow. It would be otherwise, of course, if the forfeiture was based upon failure to perform some condition made for the benefit of remaindermen and the widow. Where it related to the performance of a condition which inured exclusively to the benefit of the widow, it was in her power to waive the performance of those conditions so long as she was the beneficiary.
The Kentucky case relied on by counsel for appellant (Jenkins v. Williams, 191 Ky. 229 S.W. 94) is not directly in point, in that the property involved does not appear to have been the homestead, and the rentals did not become exclusively the property of the widow. The point of that case was whether or not the widow was a *Page 698 joint obligee so as to have the right to accept rentals at any time or waive the payment thereof. There was a dissenting opinion in the Kentucky case, but we are not concerned with the correctness of the decision. In the present case it is undisputed that the leased property fell to the widow as her homestead after the death of her husband, and that the rentals belonged exclusively to her.
Mr. Justice HART concurs in this dissent.