concurring.
I In Florida the organic exemptions apply only to “a homestead” “owned by the head of a family residing in this State.”' The homestead feature must be impressed upon the property before the exemption can apply. Semple v. Semple, 82 Fla. 138, 89 South. Rep. 638; Solary v. Hew*7lett, 18 Fla. 756; Oliver v. Snowden, 18 Fla. 823; Drucker v. Rosenstein, 19 Fla. 191. A husband and wife constitute a family. Miller v. Finegan, 26 Fla. 29, 7 South. Rep. 140; 29 C. J. 793. A grandfather having his granddaughter living in his home may be entitled to homestead exemptions. Adams v. Clark, 48 Fla. 205, 37 South. Rep. 734. See also Johns v. Bowden, 68 Fla. 32, 66 South Rep. 155. A widow may be the head of a family and the owner of a homestead. Caro v. Caro, 45 Fla. 203, 34 South. Rep. 309; DeCottes v. Clarkson, 43 Fla. 1, 29 South. Rep. 442; 29 C. J. 795. If the owner of a homestead ceases to be the head of a family (Herrin v. Brown, 44 Fla. 782, 33 South. Rep. 522; Johns v. Bowden, 68 Fla. 32, 66 South. Rep. 155; Johns v. Bowden, 72 Fla. 530, 73 South. Rep. 603), or if the homestead be abandoned as the family home (Murphy v. Farquhar, 39 Fla. 350, 22 South. Rep. 681; McGregor v. Kellum, 50 Fla. 581, 39 South Rep. 697), the property ceases to be “a homestead” within the meaning of the Constitution, and the exemptions no longer exist; and if the property is occupied as the home of a family, but it is not “owned by the head of the family,” it is not a “homestead” to which exemptions apply under the Constitution even though the property is owned by another member of the family. Witt Co. v. Moody, 72 Fla. 459, 73 South. Rep. 582. If the owner of a homestead has a child or children (Palmer v. Palmer, 47 Fla. 200, 35 South. Rep. 983) or a wife (Saxon v. Rawls, 51 Fla. 555, 41 South. Rep. 594), he cannot devise his homestead real-estate. Griffith v. Griffith, 59 Fla. 512, 52 South. Rep. 609. At the death of the owner of a homestead, the homestead property passes according to the statutes of descents; and by the Constitution “the exemptions” that apply to the homestead “inure to the widow and heirs of the party entitled to such exemption.” Raulerson v. Peebles, 77 Fla. 207, 81 South. Rep. 271. Under *8the statute if the owner of the homestead leaves a widow and a child or children at his death, the widow takes only dower or a child’s part in the homestead as she may elect. Sec. 3620, Rev. Gen. Stats. 1920. The “heirs” referred to in the Constitution are those designated by statute (Hinson v. Booth, 39 Fla. 333, 22 South. Rep. 687), and the rights of the widow in homestead real estate are determined by statute (Godwin v. King, 31 Fla. 525, 13 South. Rep. 108); and the children made heirs by the statute include adult children whether they reside on the homestead or not (Miller v. Finegan, 26 Fla. 29, 7 South. Rep. 140; Donly v. Metropolitan Realty & Investment Co., 71 Fla. 644, 72 South. Rep. 178) and whether they are residents of the State or not. Scull v. Beatty, 27 Fla. 426, 9 South. Rep. 4. The rights of the heirs in the homestead may be lost by laches. Moseley v. Taylor, 68 Fla. 294, 67 South. Rep. 95. The Constitution does not restrict the inherent right of the owner to dispose of personal property that may be exempted. Hinson v. Booth, 39 Fla. 333, 22 South. Rep. 687. But the Constitution does not permit the owner of a homestead to dispose of the homestead real estate except by “alienating” it “by deed or mortgage duly executed * * * by husband and wife if such relation exists.” Thomas v. Craft, 55 Fla. 842, 46 South. Rep. 594; Adams v. Malloy, 70 Fla. 491, 70 South. Rep. 463; Bank of Jennings v. Jennings, 71 Fla. 145, 71 South. Rep. 31; Shad v. Smith, 74 Fla. 324, 76 South. Rep. 897. The alienation permitted by the Constitution does not include á voluntary transfer of the title of the homestead real estate hy the husband to the wife, who is one of those to whom at the death of the owner . the property would go under the statute, since that wovdd give the entire property to the grantee, without any consideration to the owner for the benefit of the family during his life or to his children who at his death are intended by *9the Constitution to be beneficiaries of the exemptions that attach to the homestead, and would frustrate the purpose of the organic command that “the exemptions * * * shall inure to the widow and heirs” at the death of the owner. Byrd v. Byrd, 73 Fla. 322, 74 South. Rep. 313.
The Constitution does not contemplate or permit a voluntary conveyance of the homestead to the wife by means of a deed executed by the husband and wife to a third party who at once and as a part-of the same transaction conveys the property to the wife without consideration. Such a transaction is in effect merely an attempted voluntary conveyance of the homestead by the husband to the wife. See McMahon v. Speilman, 15 Neb. 653, 20 N. W. Rep. 10; Stevens v. Castel, 63 Mich. 111, text 120, 29 N. W. Rep. 828; 29 C. J. 897. In the cases last cited from other States it appears that homestead exemption rights'exist in lands owned by the wife as well as when owned by the husband. See also 29 C. J. 896; 13 R. C. L., Sec. 93, p. 633-4; Waples on Homestead and Exemptions, page 398.
By providing in Article X of the Constitution that “a homestead to the extent of etc., owned by the head of a family residing in this State * * * shall be- exempt from forced sale under process of any court,” with stated exceptions, and that “no judgment or decree or execution shall be a lien upon exempted property except as provided, ” etc., and in limiting the owner’s power of alienation, the Constitution protects the family home from forced sale and from an alienation that is not in accord with the organic provisions, while the head of the family is living. By the provisions that “The exemptions provided for * “ * shall inure to the widow and heirs of the party entitled to such exemptions” * * * and that the Article shall not “prevent the holder of a homestead from alienating his or her homestead so exempted by deed or mortgage duly executed *10by himself or herself, and by husband and wife, if such relation exists, ’ ’ the Constitution expresses an intent to protect rights given to the children who under the statute are the “heirs” at the death of their father the head of the family and owner of' the homestead, as well as to protect rights given to the wife who becomes the widow, on the death of the’ husband and father. And with this as a purpose, the provisions expressly limiting the power of alienation are designed to protect the children who become “heirs,” as well as to protect the widow against any attempted transfer of the homestead real estate that is not contemplated by the Constitution (Byrd v. Byrd, 73 Fla. 322, 74 South. Rep. 313; Thomas v. Craft, 55 Fla. 842, 46 South. Rep. 594; Murphy v. Farquhar, 39 Fla. 350, 22 South. Rep. 681), as well as by an attempted transfer or mortgage that “is not jointly consented to and duly executed as is expressly required by the Constitution. Hutchinson v. Stone, 79 Fla. 879, 84 South. Rep. 151; High v. Jasper Mfg. Co., 57 Fla. 437, 49 South. Rep. 156; Shad. v. Smith, 74 Fla. 324, 76 South. Rep. 897.
The alienation of the homestead that is permitted is not a voluntary conveyance of the legal title to one of the parties whose consent given by a duly executed deed or mortgage is essential to the alienation that is contemplated. The organic provisions intended that at the death of the. owner of a homestead, the homestead exemptions shall inur<? to the widojw and heirs in the way fixed by statute, and the intent of such provision is that neither the widow nor the heirs shall be deprived of their prospective rights by a transfer of the title to the homestead except by an alienation in which the wife shall join, and'the provision for such joinder does not contemplate a direct or an indirect voluntary conveyance of the homestead real estate to the wife.
*11The. conclusion reached accords with prior decisions of this court. In Rawlins v. Dade Lumber Co., 80 Fla. 398, 86 South. Rep. 334, there were no children. See Albright v. Albright, 70 Wis., 528, where there were no children. In Semple v. Semple, 82 Fla. 138, 89 South. Rep. 638, it was held that the property was not a homestead when the conveyance by the husband to the wife was executed. After the attempted transfer of the title to the homestead in this case there was no abandonment of the homestead as such, as there was in Murphy v. Farquhar, 39 Fla. 350, 22 South. Rep. 681. See 132 Mich. 93, 92 N. W. Rep. 778; 102 Am. St. Rep. 386; 20 Iowa 368.
The statutory provision that a husband may by deed convey real estate direct to his wife, cannot affect the intent of the organic provisions that homestead real estate may be alienated only by a deed or mortgage jointly and duly executed by the husband and wife if such relation exists, and cannot affect the organic provision that homestead exemptions “shall inure to the widow and heirs” of the owner.
The children of the owner who are his statutory “heirs,” have a right and an interest in the homestead real estate exemptions that are secured by the Constitution, and the owner cannot transfer the property to another except by the alienation that is expressly provided for in which the wife must join. And the joint deed or mortgage of husband and wife required by the 'Constitution, necessarily contemplates an alienation to others than the wife, at least where the conveyance to her is without consideration and there are children to whom as heirs together with the widow the exempttion by the express terms of the Constitution, “shall inure” at the death of the owner.
It is suggested that the Constitution should not be held to forbid a voluntary transfer of the homestead real estate by the owner to his wife even though the owner of the *12homestead has children, because the owner of the .homestead and his wife might have duly alienated the homestead to others than the children of the owner or they might have abandoned the property as a homestead so- that it could be disposed of as other real estate, and the children would thereby have lost their interest in their father’s homestead exemptions. Or the father might have survived the wife, and his children being grown and living in their own homes, the homestead character of the property would be lost because the owner would then no longer be the head of a family, though he continued to occupy the property as his home. But these or other circumstances or contingencies do not afford authority for or justify a voluntary conveyance of the homestead to the wife. Such a conveyance, if permitted to be effective, would destroy the rights of exemption and thereby frustrate-.the organic intent that the homestead exemptions “shall inure to the widow and heirs,” when the homestead property is not duly alienated to others and the homestead is impressed with the organic exemptions at the death of the owner. The- right to do one thing does not justify the doing of another thing that is contrary to the intent of the Constitution.
Counter contingencies may be suggested. If the property be duly alienated to others, the father might reacquire it or may acquire another homestead, or if it is abandoned as a homestead, he could reoccupy it with his wife, or acquire or occupy other property as his homestead; and if he survived the wife, others might live with him on his homestead as members of his family, and the rights of his children in the homestead under the law would thereby be preserved. A due alienation of the homestead real estate to others for an appropriate consideration, or air abandonment of the property as the homestead, might not be without benefit to the widow and heirs of the owner; but a voluntary transfer *13of the homestead to the wife would be without benefit to the husband’s children,- to whom with the widow, the homestead would pass at the'owner's death.
It may not be supposed that the husband and wife will make a voluntary conveyance of his homestead to others when he has children.
The Constitution of 1885 deals with the homestead property and also with the homestead exemptions. It provides that “a homestead” within stated limits, “owned by the head of a family residing in this State ” “ shall be exempt * * * and the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists,” and that “the holder of a homestead” may alienate the “homestead so exempted by deed or mortgage duly executed * * * by husband and wife if such relation exists. ’ ’
“The effect of the Constitution of 1885 in so far as the homestead is concerned, where the relation of husband and-wife exists, and where there is a child or children, is to compel such homestead to inure to the widow as widow, and to the heirs, unless the consent of the wife can be obtained to its alienation, in the lifetime of the husband.” Palmer v. Palmer, 47 Fla. 200, 35 South. Rep. 983.
The transaction in this case was not such an alienation of the homestead real estate as is provided for by the Constitution, nor was it an abandonment of the homestead; but it was an attempt to so transfer the title to the homestead that at the death of the owner, it would pass to his widow to the exclusion of his children, contrary to the intent of the Constitution.