I cannot subscribe to the reasoning of either Healy v. Bismarck Bank, 30 N.D. 628, 153 N.W. 392, or the instant case. The decision in the Healy Case was apparently based on § 8723, Comp. Laws, 1913, which reads: "Upon the death of either the husband or wife, the survivor, so long as he or she do not again marry, may continue to possess and occupy the whole homestead . . .," which homestead, it is further provided, shall be ascertained and set off by the county court during the probate of the estate.
As I read the opinion of the court in the case at bar it does not adhere to the reasoning of the Healy case so far as § 8723 is concerned. That the principle announced ought not be based on that statute I wholly agree. The fee title being in the plaintiff herein, — not in the deceased but in the surviving spouse, — the county court has no jurisdiction under this statute. That court has probate jurisdiction only, and this is a probate statute. If § 8723 is to be given effect it must be by operating on a title once held by a person now deceased, not on that of one still living; the county court cannot exercise jurisdiction over the property of a mature or sane living person. Only when the fee is in the deceased spouse can this section be given effect. Such appears to have been the reasoning of the opinion in O'Hare v. Bismarck Bank, 45 N.D. 641, see pp. 644, 645, 178 N.W. 1017.
The present decision is based on the broad ground that "the homestead status having been established during his married life, it continues to exist after the death of his wife unless voluntarily abandoned," even though there be no minor children or other dependents. This is to my mind a strained and unwarranted construction of our homestead *Page 307 law. Section 208 of the state Constitution provides for "wholesome laws, exempting from forced sale to all heads offamilies a homestead . . ." Obeying this mandate, the legislature has by appropriate laws (Comp. Laws, 1913, § 5605, and amendments) limited and defined the value and extent of the homestead of every "head of a family" and § 5626, Comp. Laws, 1913, has defined the term "head of a family" as (1) "the husband or wife when the claimant is a married person," and (2) "every person who has residing on the premises with him or her and under his or her care and maintenance" certain classes of persons named. Only by reason of being the "head of a family" as thus defined did plaintiff in the first instance acquire a homestead exemption in his fee estate. No longer a married man, no longer the father of minor children, no longer having under his "care and maintenance" any dependents, may this plaintiff claim a homestead exemption out of property the fee title to which is in him?
Our constitutional and statutory exemption provisions are plainly intended to protect the family to the end that it may not be without a home or opportunity for self support. When the family ceases to exist, so does the reason for the homestead exemption and the homestead estate itself. A family is a collection of individuals; one person alone is not a family. The policy and scope of our exemption laws within the constitutional limit lies with the legislature; if there should be greater liberality that department of the government alone is authorized to speak. However great the misfortune of a surviving spouse that he be left without a homestead right because of the death or desertion of family, such misfortune should be the thought of the legislature and its remedy left to that body. If the legislature has seen fit to adopt a public policy differing from what we may feel that policy should be, or if through inadvertence it has failed to act, the court ought not to supplant that body by revamping its production or supplying its deficiencies.
That a surviving spouse, although remaining a single person, and being without minor children or dependents, may hold a homestead estate by inheritance from the deceased spouse "in whom title to real property constituting a homestead . . . is vested," is provided by § 5627, Comp. Laws, 1913, referred to in the opinion; but no matter what argument is advanced for the construction given in the opinion in this case, the cold fact remains that we have no constitutional or statutory *Page 308 provision giving to a single person, without dependents, a homestead exemption in his own fee estate. This was recognized by Justice Robinson in O'Hare v. Bismarck Bank, supra, in this language:
"Thus it is apparent that there are two classes of homesteads, and some courts have fallen into error by failing to note the distinction between the title to real property with a homestead exemption, and a homestead by inheritance without any fee title."
A married man with family, "the homestead status having been established during his married life," lost that homestead right by being divorced by his wife, the latter being given the custody of their minor child and he having no other dependents, this notwithstanding that the court decreed that he pay a stated monthly sum for the support of the child: ". . . it does not follow that it remained his homestead, and under § 5070 (now § 5626, Comp. Laws, 1913) it could not so remain, as he was not the head of a family as therein defined." Holcomb v. Holcomb, 18 N.D. 561, 120 N.W. 547, 21 Ann. Cas. 1145.
That the majority opinion is in accord with the construction of many able courts cannot be questioned. Their reasoning is based largely on the sympathies of the particular case, disregarding the law, a fair example of which is found in Barney v. Leeds,51 N.H. 253, 277:
"At last the wife dies, and the father is left alone in the dwelling which he has always called his home, and which is endeared to him by fondest associations and by sacred memories. He is too old and feeble to acquire another. Shall he be turned out of the old homestead because of the inevitable fate which has deprived him of his wife?"
Or the franker statement in Stanley v. Snyder, 43 Ark. 429:
"The reason assigned is not very satisfactory, or, at most, is one to be addressed to the political department of the government. So that the decision seems to savor of what Jeremy Bentham calls `judge-made law.' Yet it has been generally followed. . . . The Constitution which contains our homestead statute has not in express terms anticipated and provided for every possible phase of the question. It therefore devolves upon the courts to construe and apply the law to new cases as they arise. Interpreting the law according to its spirit, and following the current adjudications, we hold, though with some hesitation, that, when the association of persons which constitute the family is broken up, whether by separation or the death of some of the members, *Page 309 the right of homestead continues in the former head of the family, provided he still resides at his old home."
The Supreme Court of the United States, in Edwards v. Kearzey,96 U.S. 595, 604, 24 L. ed. 793, 797, well said: "`Policy and humanity' are dangerous guides in the discussion of a legal proposition. He who follows them far is apt to bring back the means of error and delusion. The prohibition contains no qualifications and we have no judicial authority to interpolate any. Our duty is simply to execute it," — this with reference to the impairment of the obligation of contract, and which should be just as applicable to "extra-statutory" homesteads. The statutes vary in many cases. As is said in the résumê of the L.R.A. note to Weaver v. First Nat. Bank, 76 Kan. 540, 123 Am. St. Rep. 155, 94 P. 273, found in 16 L.R.A.(N.S.) 115: "In a number of these cases it was not unreasonable to so construe the particular statute while in others the courts have sought in terms of rhetoric to ascribe to the legislature a liberality probably never intended." The views expressed in the following quotations appeal to my judgment:
"The leading idea, upon which the Constitution and statute are both predicated, is the protection of the family. To carry out this intent, the homestead of the head of the family is protected from forced sale. But unless the person is the head of the family, the right of homestead cannot exist. And, if the privilege is an incident to a certain state, and that state itself ceases, why should not the incident fall with it? As the primary object of the law was the protection of the family, when the family ceases to exist the reason for privilege is gone; and why should not the privilege itself also cease?" Revalk v. Kraemer, 8 Cal. 66, 68 Am. Dec. 304.
In Hill v. Franklin, 54 Miss. 632, the Court said:
"There can be no more reason for holding that a man who has lost his family shall continue to preserve an exempt homestead because he once had a family than for saying that the house which has once been exempt while occupied as a homestead shall continue to be exempt although totally abandoned as a residence. It is as illogical to say that the exemption shall continue after the family has ceased as to say that it can exist before the family comes into existence."
See also: Santa Cruz Bank v. Cooper, 56 Cal. 339; Johnson v. *Page 310 Little, 90 Ga. 781, 17 S.E. 294; Cooper v. Cooper, 24 Ohio St. 488; Galligar v. Payne, 34 La. Ann. 1057; Fullerton v. Sherrill, 114 Iowa, 511, 87 N.W. 419; Herrin v. Brown, 44 Fla. 872, 103 Am. St. Rep. 182, 33 So. 522; Jones v. McCrary, 123 Ga. 282, 51 S.E. 349; Waples, Homestead Exemptions, chap. 3.
With the finding of the majority that there was no abandonment of the premises by plaintiff, I am in accord, but I am unable to agree with the opinion otherwise.