The primary question presented here is: Did Reece W. Jones have the right to claim the 80 acres in question here as his homestead, on the death of his bother in 1929: I think he had this right. Article 9, 3 of our Constitution provides: "The homestead of any resident of this state who is married or the head of a family shall not be subject to the lien of any judgment or decree of any court or to sale under execution or other process thereof, except," etc., (the exceptions not being applicable to this case). The general rule in this state is that in determining who is the head of a family a liberal construction should be applied. In the recent case of Yadon v. Yadon, 202 Ark. 634, 151 S.W.2d 969, this court said: "It is the settled policy of this court that our homestead laws are remedial and should be liberally construed to effectuate the beneficient purposes for which they were intended."
The undisputed facts here are that appellant, Jones, and his wife separated in 1922 and were divorced in 1924. *Page 1095 While the divorce suit was pending, the daughter, Juliette Jones, was born. Jones was living on this land with his mother at the time of the divorce and continued to reside thereon until he was evicted by this present suit. By the divorce decree appellant's wife was awarded the care and custody of their infant daughter, and appellant was ordered to pay $10 a month toward her maintenance. This order is still in effect. In these circumstances was appellant, Jones, the head of a family in the sense contemplated by the framers of the constitutional provision, supra, and under our general rule of liberal construction, such as would entitle him to the claim of homestead in the land in question? I think he was, and therefore clearly entitled to claim his homestead.
Although the custody of his minor child has been awarded to its mother and the child is not living with the father, Jones, the father, is not only morally bound, but it legally bound to support this child during its minority. It is undisputed that this child was a minor when appellant's mother died in 1929, when his homestead right attached, and was a minor when the present suit was filed. In these circumstances the general rule is stated in 26 American Jurisprudence, p. 127, 205, under the general subject of "Homesteads," in this language: "Where property has been occupied by husband and wife in circumstances entitling the owner to claim the homestead exemption, the dissolution of the family as a consequence of divorce proceedings is held by some authorities not to terminate the right to set up the exemption as against the demands of creditors. The divorced husband is held not to lose the exemption if he remains liable for the support of children, and this is true where the custody of the children is awarded to the mother." In support of the text there is cited in footnote 13 an annotation in L.R.A. 1917C, p. 372. There the annotator says; "The court said that in Hall v. Fields, 81 Tex. 55317 S.W. 82, the object of the proceeding was to secure the use of the father's homestead to the minor children after his death, he having been divorced from their mother. The decree of divorce gave the custody of the minor children to the mother, and they actually lived with *Page 1096 her, yet the supreme court held that the divorced husband continued to be the head of a family, and was entitled to a homestead under the Constitution. Although the children did not live with him, they constituted a part of his family. It could not be that the children were entitled to the homestead unless the father was the head of a family at his death. . . . The case cited (Hall v. Fields) has not been questioned, and clearly settles the law to be that, although a man be divorced from his wife, and his children live separately and apart from him, his status as the head of a family is not lost. Therefore, his right to a homestead remains." The provision of the Texas Constitution on which the decision in Hall v. Fields is based is similar in effect to the corresponding provision, supra, in our own Constitution. This Texas case is squarely in point, is in accord with the general rule on the subject, and I think is in accord with the decisions of this court. In the instant case appellee did not obtain his judgment against appellant, Jones, until 1933, almost four years after appellant's mother had died in 1929, and appellant's undivided interest in his mother's land had attached. During all this time appellant was charged with the legal duty to support his infant daughter and was continuously living on the land as his homestead. In fact appellant, as has been indicated, had been living on this land continuously since 1921. It is well settled in this state that a homestead right may be acquired in undivided lands such as we have here. In Robson v. Hough, 56 Ark. 621, 20 S.W. 523, this court said: "When real estate descends to several persons as tenants in common, one of whom is married and residing on the land with his family at the ancestor's death, intending to continue his residence on it when the descent is cast, the privilege of the homestead attaches to his interest in the land the instant the estate vests in him, and precludes his creditors from acquiring a judgment or execution lien upon the land, to be asserted as superior to the homestead right."
It is my opinion, on the record before us, that appellant, Jones, is the head of a family and entitled to claim *Page 1097 his homestead. I, therefore, conclude that the cause should be reversed and remained with directions.
Mr. Justice HUMPHREYS joins me in this dissent.