Appellee, Carrie C. Lowell, presents by cross-assignment of error the preliminary question, that the court below erred in not dismissing the appeal to the district court from the county court.
We do not think that the court erred in overruling the motion to dismiss the appeal to the district court. The statute made it the duty of the county clerk to make out and transmit to the clerk of the district court the transcript; and further provided, that if he could not, for want of time, do so to the first succeeding term, he should to the next term thereafter; showing that time was not absolutely essential to give the district court jurisdiction. The transcript was filed within a day or two after the time fixed for the meeting of the first term *583of the court after the appeal. The clerk gave an excuse for the delay, which, if. not altogether satisfactory to excuse him, should, we think, under the circumstances, be held sufficient to prevent the prejudice which would have resulted to appellants, Ball, Hutchings & Co., by a dismissal of their appeal.
The material question in the case is, did the court below err in making the allowance of $3,000 in lieu of a homestead, and in ordering the property upon which Ball, Hutchings & Co. had a lien by trust deed, to be sold to raise the amount of this allowance?
The constitution provides that the homestead of a family shall be and is thereby protected from forced sale for the payment of all debts except those of certain specified classes. Const. 1876, art. 16, sec. 50.
The preceding section gives to the legislature the power, and makes it their duty, to protect by law from forced sale also, a certain portion of personal property; which has been done.
A homestead may be the separate property of the husband, the community property of the husband and wife, or the separate property of the wife. If the latter, the husband still has a homestead right in it, and should the wife die first he has an interest by inheritance, and the other heirs of the deceased wife cannot compel a partition of it so long as he may elect to use or occupy it as a homestead. While both husband and wife live and occupy it as such, it is in fact and law the homestead of the family. Const. 1876, art. 16, sec. 52.
The evident intention and object of the homestead exemption was to provide a home for the family; and under our statute this exemption does not cease with the death of the husband; but if it were his separate property even, it still remains the homestead of the family so long as it in fact continues to be used as such; and it is made the (duty of the court to set it apart for this purpose. R. S., art. 1993.
*584The statute provides that, in case there shall not be among the “effects” of the deceased all or- any of the property exempted from execution by the constitution and laws of the state, the court shall make a reasonable allowance in lieu thereof. R. S., art. 1994.
By another article of the statute the word “ effects ” is defined to include all personal property and all interest therein. R. S., art. 3138, subdiv. 121
Article 1994 of the statute does not in express terms provide for an allowance in lieu of the homestead eo nomine, and the Particular article which gives the allowance might, under the statutory definition of the word “effects,” be construed to apply to exempt personal property only. R. S., art. 1994.
It may be inferred, however, by the succeeding article, that a homestead is embraced within the language of the statute, for which, when one does not exist in kind, an allowance is to be made. But we are of the opinion that the statute did not intend to include a case like the present, where the widow and children already have a homestead, and which was the homestead of the family during the life-time of the husband and at his death.
When the husband dies the wife becomes the head of the family, and the children, so long as they remain with her, are constituents of that family. The allowance in lieu of the homestead must be presumed to have been provided for the purpose of purchasing a homestead. Ho person, however, is privileged to be protected in two homesteads; and if the family already has an existing one, which was the family homestead during the life-time of the husband and at his death, though it may be the separate property of the wife, then the policy and objects of the law are fulfilled.
The intention of the legislature was to provide out of the assets of the deceased a homestead for the family, if they had none, and not, as in a case like the present, to provide an allowance in lieu of that which already ex*585isted. An allowance can be given in lieii of that which has no existence, but it would be a perversion of the term to give it in lieu of that which already has an existence.
[Opinion delivered March 24, 1882.]Again, in the case under consideration, the homestead had been conveyed by the husband to the wife, not for a valuable consideration, but as a gift, stating that it was given to her as the homestead, so that if anything happened to him she would be protected in it as a homestead— language almost prophetic, in view of his subsequent tragic end.
He thus did in his life-time simply what the statute would have done after his death.
The property now sought to be sold to make up the allowance in lieu of the homestead was incumbered by the deceased husband by trust deed to appellants, Ball, Hutchings & Co., and that, too, at a time when he was in the possession and enjoyment of this family .homestead.
Under the circumstances of this case, to now subject this property for an allowance in lieu of this still existing homestead, and thus practically to defeat this express lien upon it, would, in our opinion, be a perversion of the statute, and would shock the moral sense of mankind as being against the common dictates of justice and equity.
The judgment of the court below, so far as the same orders an allowance of $2,000 and sale of property to satisfy the same, in lieu of a homestead, is reversed, and that part of the application of the appellee, Mrs. Carrie Lowell, dismissed. It is further ordéred that said judgment in all other respects be affirmed, appellants Ball, Hutchings & Co. to recover the costs of this appeal, and that to the district court to be paid in due course of administration.
Reversed and reformed.