On Motion for Rehearing.
Gould, Chief Justice (separate opinion).I avail myself of the opportunity presented by the motion for rehearing to state, very briefly, some reasons for adhering to the conclusion originally reached by a majority of the court.
*592In the first place I remark that the allowance, if made, defeats an express lien, clearly valid when given. Unless such be the clearly expressed legislative will, this should not be done.
Giving to the word “effects” the meaning affixed to it by the statute, we have substantially a provision, that if there should not be amongst the personal property of the deceased all or any of the specific articles exempted by the constitution and laws of the state, the court shall make a reasonable allowance in lieu thereof to be paid to the widow and children, or such of them as there may be. R. S., arts. 1993, 1994.
But it is said that the context makes it apparent that the word effects should be construed as meaning property of all kinds: 1st. Because subsequent articles plainly show that the allowance is to be made in lieu of a homestead. 2d. Because the statute directs an allowance in lieu of property exempt by the constitution, and the constitution, it is said, exempts the homestead, but does not exempt any personal property. To this last position it may be answered, that the constitution makes it the duty of the legislature to protect from forced sale “ a certain portion of the personal property of all heads of families; ” that it exempts current wages from garnishment, and that the statute enumerates this as one of the items of “property exempt from forced sale.” R. S., art. 2335. It seems to me a mistake to say that the constitution exempts nothing but the homestead, and to argue that there is no personal property exempt by the constitution.
But, beyond question, the subsequent articles of the statute do plainly show that an allowance is to be made in lieu of the homestead, where there is no homestead of the family. Such has been the uniform and unquestioned usage under the various probate laws of the state. If the maintenance of this allowance required the word “effects” to mean “property of all kinds,” I should un*593hesitatingly give it that meaning. But, as already indicated, I am of opinion that this allowance would stand, by reason of the articles of the law regulating it, if article 1994 were stricken out. It is not so clear that article 1994 was designed to cover the entire subject or field of allowances, as to make it apparent that the word effects was used in other than its statutory meaning.
But if it be conceded that the statute used the word in the sense of property, it does not clearly appear that the design was to do anything more than to secure an allowance where there was no family homestead. The probate law of 1870, which has always been construed in its main provisions as harmonizing with the previous statutes, had this provision: “"The property reserved from forced sale by the constitution and laws of this state, or its value if there he no such property, does not form any part of the estate of' a deceased person,” etc. Pasch. Dig., art. 5487. Under this law, where there was a homestead of the family at the time the husband died, it would seem that there was no authority for deducting its value also from the estate. . Neither, under the act of 1870 or of 1848 has any case been cited where an allowance in lieu of a homestead has been maintained, or even ordered, where there was a family homestead.
To reach the conclusion that an allowance in lieu of a homestead is to be made where there is a homestead of the family, though established on the separate property of the wife, we have to disregard the literal meaning of the terms used in the statute, as well as the spirit and object of the homestead exemption. I do. not believe that the legislature intended to double the homestead exemption in case of estates; or to enable parties, by vesting the title to their homestead in the wife separately, to secure substantially a double exemption in case of death. The spirit and end of the law and its liberal terms being both satisfied, I do not see any sufficient reason for depart*594ing therefrom. There is no such clearly expressed legislative will as justifies a construction which defeats an express lien, otherwise valid.
It is argued that this may leave the husband’s children by á previous marriage with no homestead possession. This is true; but this might happen if the homestead were the property of the last community, and the surviving wife saw fit to qualify as survivor, and to sell the homestead. Our homestead laws have never yet reached the completeness of a well matured and perfected system. Inequalities abound everywhere. The legislative enactments fall far short of securing to every family equal exemption, as well as of securing a fair distribution of the benefits of the exemption after the death of the husband. Arguments based on such imperfections of the statute are far from conclusive. They fail to convince me that this court erred in refusing the allowance, there being at the time of the husband’s death a family homestead.