Concurring.
The conclusion reached in DeCottes v. Clarkson, 43 Fla. 1, 29 South. Rep. 442, to the effect that an unmarried holder with children cannot dispose of his or her homestead by will, is thought by counsel for appellees in this case to be erroneous. In that case the question is not discussed further than to say that it is settled law in this State; not denied by counsel in that case. In the present case the opinion prepared by the Chief-Justice merely follows the former decision, without discussing the question at all, and in view of the very able brief of the counsel for appellees, based largely upon the written opinion of the Circuit Judge, I deem it proper to discuss the question more at length. In Walker v. Redding, 40 Fla. 124, 23 South. Rep. 565, it is broadly stated that “under Article X constitution of 1885, only those who are without children can dispose of their homesteads by will.” Under the constitution of 1868, it veas uniformly held that the homestead could not be disposed of by will (Wilson v. Fridenburg, 19 Fla. 461; 21 Fla. 386, and Brokaw v. McDougall, 20 Fla. 212), but in aíf the cases decided under either constitution, except DeCottes v. Clarkson, the testator left a wife and children, and this fact, it is thought,, makes those decisions inapplicable to the present question, leaving it to rest upon DeCottes v. Clarkson alone. Bo much of tlie provisions of Art. X, constitution of 1885, as bear upon the question to be decided, reads as follows: “Sec. 1. A homestead to the extent of 160 acres of land, or the half of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this State, together with $1,000 worth of personal prop*209erty, and the improvements on the real estate shall be exempt from forced sale nnder process of any court, and the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists.
Sec. 2. The exemptions provided for in section 1 shall inure to the widow and heirs of the party, entitled to such exemption.
Sec. 4. Nothing in this Article shall be construed to prevent the holder of a homestead from alienating his or her homestead so exempted by deed or mortgage duly executed by himself or herself and by husband and wife, if such relation exists; nor, if the holder be without children, to prevent him or her from disposing of his or her homestead by will, in a manner prescribed by law.”
The contention for appellees is, that the restrictive provisions of Art. X of the constitution apply only to cases where the owner of the homestead is a married person. The argument to sustain this contention proceeds upon the theory that the constitution does not cast upon the widow and heir an estate in the homestead, nor operate as a statute of descents as to such property; that the right to alienate the homestead is not derived from the constitution, but that the latter merely places restrictions upon the antecedent power of alienation incident to the ownership of the property; that therefore the 2nd section lias ho bearing and is not to be considered in determinin<>; whether the owner can dispose of the homestead by will; that the only restraint upon alienation is that embraced in the language “the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists” found in the first section; that tins restriction applies only to married owners, and that it applies to wills as well as to present conveyances; that the *2104th section does not further restrict alienation, but merely enunciates a rule of construction to be applied to the provision against alienation found in the first section; that as applied to wills it authorizes a married owner, without children, to dispose of the homestead by will, without the joint consent of husband or wife which would otherwise be required by section one. If this argument be sound, I think the result follows as a logical conclusion, that the unmarried owner of a homestead can dispose uf it by will, whether there be children or not. The argument is plausible, but its subtlety and ingenious refinement must fall before the dear and obvious intent pervading the language1 of Art. X. No one can read this Article without being at once impressed with the view that under it the homestead can not be aliened except by deed or mortgage duly executed by the owner and by husband or wife if the relation of marriage exists, and that it can not be disposed of by will if the holder has children. This intention stands out so hold and clear that he who runs may read, and it was, without, doubt, so understood by the people in adopting the constitution. The object of construct ion as applied, to a written constitution is do give effect to the intention of the people in adopting it (Cooley’s Constitutional Limitations, 6th ed. p. 69), and when that intention is ascertained it must he declared, without regard to technical rules of construction. Tbid. p. 70. ■
The constitution of 1885 is a revision of that óf 1868. The homestead article of the. former, is a revision of a similar article in the latter, and we must look to the former provisions and their construction in determining the meaning of the revision. The first section of the homestead article of the constitution of 1868, so far as applicable to the question now under discussion, Avas the same *211as the first section of the present constitution, except the words “exempt from forced sale under process of any court’’ in the latter, were substituted for the words “exempted from forced sale under any process of law” in the former , which change of language has no bearing upon the question now being considered. The third section of the former constitution provided that “the exemptions provided for in section 1 of this article shall accrue to the heirs of the party having enjoyed or taken the benefit of such exemption,” while the language of the constitution of 1885 is that “the exemptions provided for in section 1 shall inure to the widow and heirs of the party entitled io such exemptions.” In the former constitution no language was found similar to the 4th section of the present one/ In Wilson v. Fridenburg, 19 Fla. 461, the first case bearing on the question of testamentary disposition of the homestead, it was said that the homestead was not subject to such disposition, because if it were then the devisees — in that case the wife and children — would take in subordination to the creditors of the husband, whereas the constitution protected the homestead from creditors after his death by continuing the exemption thereof to the heirs. It was also said “the authorities in point are that the husband can not. devise the homestead. ‘The existence of such a right in the wife and children,! in this case in the children, ‘is clearly incompatible with the exercise of such a power over it by him,’ 100 Mass. 234, 37 Vt. 419, 25 Tex. 72. Thomp. on Homesteads, sec. 544." Tt is nowhere suggested in that case that the will was not executed with the “joint consent of husband and wife.” nor that the clause in section 1 of the constitution prohibiting alienation without such joint consent operated to prevent alienation by will. On the contrary, it is *212perfectly clear front the language used, and the authorities cited to sustain the proposition asserted, that the prohibition. upon alienation, by will was found in the language of the 3rd section to the effect that the exemptioa pro Added for in section 1 should accrue to the heirs of the party having enjoyed or taken the benefit of such exemption. This was the constitutional right existing, in the, children in that case, that was clearly incompatible with the power to devise the homestead. The authorities cited show clearly that the decision was based upon implied prohibitions in the 3rd section, and not upon the clause in the 1st section regarding alienations by the joint consent of husband and wife, and those prohibitions applied to every holder of a homestead whether married or unmarried and regardless of children. A brief reference fo the authorities cited will demonstrate the correctness of my interpretation of the decision. In the Massachusetts case the statute provided that the homestead, occupied and oAvned by a householder having a family, should exempted to the value of $800 from sale or levy on execution ; that no release or waiver of such exemption should be valid unless by deed, and no conveyance thereof by the husband Audid, without his wife’s joining therein; and that such exemtpion should continue after his death for the benefit of his AvidOAV and children, some one of them continuing to occupy the homestead until the coming of age of the youngest child and the death of the widow. The court said that the power of the husband to terminate this freehold with his life by disposing of the land in' his will is inconsistent with the spirit and intent of the statute, as manifested in the clauses declaring that no release or waiver except by deed, and no deed from the husband alone Avithout Isis wife should he A’nlid in Iuav, and *213that the exemption should continue after his death for the benefit of his widow and children. In the Vermont case it is said “the intent of the homestead act is to create a home for the poor debtor and his family which shall not be liable for his debts, and which, upon the death of the husband, shall descend to the widow and minor children. The spirit of the act and all its provisions indicate that it was intended that the husband should not have the power by will to devise it away from his wife and minor children. He can not alienate or mortgage it without the consent of the wife. If he die leaving a wife and children, it shall vest in them free form .his debts.” In the Texas case it is said “the order setting apart the homestead fo.r the use of the widow and children is not complained of. It was certainly proper irrespective of the disposition of the fee by the will. The statute reuires the court to set aside the homestead for the use of the widow and children at the first.term of the court after the inventory and list of the claims have been returned which may be before the solvency of the estate has been judicially ascertained. Though it may be sxibject to final partition and distribution, it is not assets in the hands of the administrator, but the use of it as a homestead is reserved to the family during the period of administration.”' Judge THOMPSON, in section 540 of his work on Homesteads and Exemptions, says: “the homestead exemption would be deprived of the feature which chiefly recommends it to favor, if upon the death of the head of the family, It should be withheld from his widow and children and subjected to administration for the payment of his debts.” After referring to the statutes of the'various States providing for the transmission of the homestead upon the death of the head of the family, he says in section 544: *214“the right thus secured to the widow and orphan children of the owner of a homestead would in some cases be rendered nugatory if he could deprive them of it by testamentary disposition. The existence of such a right in them is clearly incompatible with the exercise of such a power over it by him.” The last clause of this language of Judge THOMPSON is quoted approvingly, and, indeed, is the basis of the decision of this court in the WilsonFridenburg case. It will thus be seen that the decision of this court was not based alone upon the clause against alienation in the first section, but more directly upon the third section which continued the exemption to the heirs upon the death of the head-of the family. This conclusion is supported by reason as well as by authority. Schneider v. Hoffman, 9 Mo. App. 280; Bell v. Bell, 84 Ala. 64, South. Rep. 189; Waples on Homesteads, pp. 446-456; 1 Underhill on Wills, Sec. 59. In McCrae v. McCrae, 103 Tenn. 719, 54 S. W. Rep. 979, the constitutional provision construed was “a homestead in the possession of each head of a family * * * shall be exempt during the life of such head of a family to inure to the benefit of the widow, and shall be exempt during the minority of their children occupying the same.” The word “inure” is also used in our constitution of 1885. The court said: “this constitutional clause clearly preserves the homestead upon the death of the husband primarily to the widow, so that, though she have minor children, her sole conveyance will effectually prevent them from asserting any claim or interest in it as against her alienee. But it also recognizes a right in the minors which, there being no widow at the death of the head of the family, is operative at once in their favor, and they become the immediate and complete beneficiaries of this clause.” Again it is said in that opinion “that the testator in his lifetime, after the *215death of his wife, could have aliened this property so as to have deprived his minor children of a homestead in it, was settled in Coldwell v. Hayes, 1 Shannon Cases, 001. But it does not follow that this could be done by the execution of a will. The power of alienation under the conditions stated, if exercised by deed, would have operated at once as a transmutation of title and this would have been a complete act during the life of the maker, but it is otherwise with a will. This speaks, whatever its date may be, only from the death of the testator, and in the present case taking effect then, it encountered the provision of the constitution which creates a homestead in the minors and necessarily yields to it.” See, also, Schneider v. Hoffman, supra.
It_ may be contended, however, that the remarks of Chief-Justice RANDALL, in Brokaw v. McDougall, 20 Fla. 212, text 225, to the effect that in Wilson v. Fridenburg, it was “held that the language of the Article, the homestead ‘shall not be alienable without the joint consent of husband and wife, when that relation exists,’ operated to prevent-any alienation or other testamentary disposition of the homestead by such head of a family who may die leaving a widow and children,” shows that the real ground of the decision in the case referred to was not as I háve interpreted it, but was based upon the alienation clause in the first section. In that case the remark was incidentally made concerning a matter not involved in the case then before the court, as neither party was contending that the will of the homestead in that case was valid, nor that the decision in the former case upon that subject was wrong. The court was asked to reconsider the former decision as to the statuts of the widow, but not as to the power to devise the homestead. In the sub*216sequent decision (Wilson v. Fridenburg, 21 Fla. 386,) the court, speaking of the homestead, says, text page 389, “it was the homestead of the testator. It was beyond his power to dispose of it by will. If he owed no debts, his heirs at law were entitled to it by the laws of descent. If he owed debts, they were entitled to it by the laws of descent, freed from the debts by force of the constitutional provision of homestead exemption,” citing Brokaw v. McDougall, 20 Fla. 212; Wilson v. Fridenburg, 19 Fla. 461, and Constitution Art. IX, sections 1 and 3. The third section of Article IX constitution referred to was the provision that the exemptions should accrue to the heirs, showing clearly that the court recognized that provision as entering into the question as to the power to dispose of the homestead by will. The text-books so construe the Florida decisions, and I think they are right. Waples on Homestead and Exemptions, p. 448. Not only were the decisions of this court, as I have shown, based upon the 3rd and not the 1st section of Art. IX constitution of 1868, but they could not have been based upon the 1st section, because.the language “the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists,” had no application to testamentary dispositions, as I shall now demonstrate. I do not deny that the word alienable may be broad enough to include dispositions by will when not otherwise restrained by the context, but where that word was used in the first section with respect to the joint consent of husband and wife, and following this section was another providing for the continuance of the exemption in the heirs of the head of the family from and after his death, as was the case here, I do not think it can be said that the,word “alienable” was intended to embrace testamentary dispositions. In *217Kansas the constitutional homestead ^provision was very similar to the 1st section of our homestead provision.. It read “a homestead to the extent of 160 acres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family, of the owner, together with all the improvements on the same, shall be exempt from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists.” It was held in a well reasoned opinion rendered by VALENTINE, J., that a will was not an alienation within the meaning of the constitutional provision quoted, and therefore that the married owner of a homestead could without the consent of his or her husband or wife, dispose of the homestead by will. Vining v. Willis, 40 Kan. 609, 20 Pac. Rep. 232. In South Carolina, in construing a statute that “no right of homestead shall exist or be allowed in any property real or personal aliened or mortgaged,” it was held that property devised by a testator was not “aliened,” within the meaning of the statute, so as to deprive the widow of her right to exemption therein. See, also, the meaning given to the word “aleniation” in Turner v. Bennett, 70 Ill. 263. Although in many States there are provisions against alienation except by the joint consent of husband and wife, I have been unable to ñnd a case holding that a will was an alienation within the meaning of such provisions. It can not be supposed that the constitution intends to treat a will as an alienation, for if so it would require a joint will on the part of husband and wife to convey the homestead. A will is inherently ambulatory, and does not take effect until the death of the testator. It is revocable at any timé while the party is alive. If the wife gave her consent by will she could revoke it at any time either before or after the death *218of her husband, and her consent given by the will would never become operative until her death. In order to render a will valid, requiring the joint consent of husband and wife, the parties would have to join in death as well as in the will.
The first section of the old as Avell as the new constitution deals with the homestead and alienations thereof during the lifetime of the owner, but its transmissipn on his death is specially dealt with in subsequent sections. By the old constitution the exemption “accrues to the heirs” upon the death of the party, and by the new it “inures to the widow and heirs” upon his death. Neither provision regulates the descent of the property, but it does regulate and provide for the continuance of the exemption after the owner’s death. The provisions are based upon the theory that there are and will be statutes regulating the descent of property, designating the persons who shall he heirs and the interests they shall inherit, and regulating the interest which the widow shall take in a decedent’s property, whether dower or otherwise. It casts the exemption upon the widow and upon whomsoever the legislature shall have designated as heirs of the party, and thus, by implication, excludes the idea that the party may by will designate other persons to succeed to the property upon his death. As the constitution casts the exemption upon the widow and heirs, it is absolutely essential, in order that they may enjoy this constitutional right, that the title of the property shall • descend to or vest in them. As was said by Judge WESTCOTT in the Wilson-Fridenburg case, if we admit the power to devise the homestead it will be subject to debts in the hands of the devisees, even though the devisees may be the wido,w and those who would have taken by inheritance in the ab*219sence of the will. In other words, the owner might, by executing a will to take effect at his death, render the homestead liable to his debts in the face of the plain language of the constitution that the exemption enjoyed by him shall inure to the widow and heirs. As these subsequent sections deal expressly with the transmission of the exemption at the owner’s death, it is Very clear that the pro1 vision respecting alienation in the first section has .reference to alienations to become effective in the owner’s lifetime. Both were in mind in framing the article, and both are provided for in separate sections.
This brings me to a consideration of section 4 of the new constitution which is a new provision not found in the old. It is in the nature of an interpretation clause, but if contains limitations upon the power of alienation by unmarried owners, and certain limitations upon the power of alienation by married owners mentioned in the first section, and an interpretation of the restrictions upon the power of testamentary disposition found in section 2. This section is framed upon the theory that the^e is somewhere in the Article language that is susceptible of being construed as prohibiting married as well as unmarried owners from making deeds, mortgages or wills of their homesteads in cases not intended, or of enabling them to make them in cases intended- to be prohibited. And just here I will say that the language of this section excludes the idea that it was intended merely to enlarge the power of alienation restricted by the first section so as to permit a married owner to alienate by will the homestead without the joint consent of husband or wife, because it deals -with the subject of alienations and wills by-married and unmarried owners in separate clauses, showing clearly that the framers did not have in mind simply *220wills of married owners. It provides, that “nothing in this Article,” not section one alone, “shall be construed to prevent the holder of a homestead,” not the married holder, “from alienating” — the'same word used in section one —“his or her homestead so exempted by deed or mortgage duly executed by himself or herself,” clearly applicates® only to an unmarried holder, “and by husband and wife if such relations exists,” applicable only to married holders, “nor if the holder,” not the married holder, but the holder whether married or unmarried, “be without children to prevent him or. her from disposing of” — not alienating — “his or her homestead by will; in a manner prescribed by law,” not without the joint consent required by the first section. We notice here the clear distinction drawn between an alienation, such as is mentioned in the firbt section, and a disposition by will, showing that the words alienable and alienated were not used in the sense of devisable or devised. If the only limitation upon the power to alienate was that found in section one, that “the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists,” and this limitation was applicable to wills, and the only purpose of section four was as contended to permit childless married owners to devise the property without the joint consent of husband and wife, the framers- of section four certainly used a great many useless and meaningless words to accomplish that purpose. Constitutions are supposed fo have been framed with care, and the words used to have been carefully and deliberately selected. Cooley’s Constitutional Limitations (6th ed.), 72. The construction contended for would not only permit married persons without children to devise their homesteads without the joint; consent of the husband or wife, but would enable married *221persons with children to dispose of the homestead by will-, if done by the joint consent of husband and wife, while the clear intent of the languagé used is to restrict the power of alienation by devise to persons, married or unmarried, who have no children. It sems to me that the language of section four indicates an intention more extensive than that attributed to it by counsel. It means to restrain the power of alienation either by a married or an unmarried owner to an alienation by deed or mortgage duly executed by such owner, and by the husband or wife if that relation exists. It means to restrain the' disposition by will to childless owners, whether married or unmarried, and in.order to accomplish these results it enacts a rule of interpretation.
Títere is nothing in these conclusions in conflict with the decision in Godwin v. King, 31 Fla. 525, 13 South. Rep. 108. In that case it was held that the constitution does not undertake to regulate the descent of property, but simply exempts a certain portion of the estate of the head of the family from forced sale under process of any court for the debts of such head of a family, and to continue this exemption after his death to his widow and heirs; that the respective shares of the widow and heirs are not determined by the homestead article, but are ascertained under the law regulating dower and the descent of property in force in this State. This conclusion does not conflict with the views herein expressed.
The only other case I deem it necessary to refer to is Hinson v. Booth, 39 Fla. 333, 22 South. Rep. 687. It was there held that there were no restrictions in the constitution against the power of the holder of exempt personal property to dispose of it by will, but in reaching this conclusion it was expressly admitted that there was in the *222homestead article a prohibition against the power to devise the homestead by a holder with children. The view that the disposition of the exempt personal property by-will was not restricted, was reached by tlie application of the maxim expressio unius est exclusio alterius. It was thought that the express restrictions in sections 1 ana 4, as to real estate, negatived the idea that any were intended as to personal property, either by the owner in his lifetime, or by will to take effect at his death. There is, therefore, no necessary conflict between my views in this case and those there expressed. On the contrary, it is there admitted that the real estate is not subject to tetamentary disposition where the holder has children.