(dissenting.) The order of the probate court in question, which directed the sale of the homestead of minors, is a nullity.
What is a homestead? In Williams v. Dorris, 31 Ark. 466, Chief Justice English, in defining it, said: “It is the place of a home or house; that part of a man’s landed property which is about and contiguous to his dwelling house. A homestead necessarily includes the idea of a house for a residence, or mansion house. The dwelling may be a splendid mansion, a cabin, or tent. If there be either, it is under the protection of the law, but there must be a home residence before it, and the land on which it is situated, can be claimed as a homestead.” Tillar v. Bass, 57 Ark. 179.
The homestead law creates no new estate, but protects the occupant in the use and occupancy of the land set apart as a homestead during the time of such occupancy. Chambers v. Sallie, 29 Ark. 412; Booth v. Goodwin, id. 637. Hence “an estate held in common with others is sufficient to support a homestead exemption, without exclusive possession by the tenant who claims the privilege.” Robson v. Hough, 56 Ark. 621; Thompson v. King, 54 Ark. 9; Sentell v. Armor, 35 Ark. 49; Sims v. Thompson, 39 id. 301; Ward v. Mayfield, 41 id. 94; Stull v. Graham, 60 id. 461. A leasehold estate is sufficient for that purpose (Robson v. Hough, 56 Ark. 621); or an equitable title (Rockafellow v. Peay, 40 Ark. 69). In the case last cited the court said: “Indeed, it is probable that the homestead exemption withdraws from the demands of creditors whatever interest the claimant has in the property dedicated to that use.” All these cases prove that the homestead interest is a mere right to use and occupy land as a home or residence.
Upon the fact that the right to a homestead is a personal right to occupy the place of residence as a home, this court held, in Garibaldi v. Jones, 48 Ark. 230, that the sale of the homestead by the widow was an abandonment of it. In that case the court said: “One of the objects of the constitution is to secure to the widow and orphans the family roof-tree as a fixed home during the widowhood or life of the widow and minority of the children. It would be clearly against the policy and spirit of the constitution, in thus providing a home for her, to permit her to alienate it, and to allow others to enjoy the benefits of the homestead of a deceased husband and father, which were only intended for the widow and orphan. If she could do so, the exemption which passes, under the constitution, to the widow and minor children upon the death of the husband and father would not be a reservation of a homestead, but a reservation of lands of a certain quantity or value, irrespective of its uses.”
In nearly every case, if not all, an abandonment of a homestead with no intent to return to it as a residence produces a forfeiture. Ordinarily, a lease for life is conclusive evidence of an abandonment and forfeiture. Gates v. Steel, 48 Ark. 539.
In Booth v. Goodwin, 29 Ark. 633, a question arose as to how minors could occupy a homestead so as to maintain their right to it. The court said: “The intention of the legislature evidently was to extend to the child or children the same protection of the property from sale by the creditor which had been extended to their parents; and as it is our duty, as far as possible, to carry this intent into effect, we must necessarily give to the term ‘occupied’ such a liberal construction as will uphold, not defeat, the humane intent of the legislature, and must hold that an infant is incapable, either by act or declaration, of abandoning or waiving his homestead right. Not to do so would be to defeat the provisions of the statute as to them. Actual occupancy of the infant upon the homestead place is not necessary; is not required of an infant. It is the duty of his guardian to take possession of the homestead place, and to rent or lease it for the benefit of his ward, as a means for his support and education, and this must have been the possession and occupancy contemplated by the legislature, because it is the only one consistent with the condition of the minor child or children.”
The minor children do not create the homestead. It descends to them. During minority they' are incapable of waving or abandoning it by act or declaration. As it is a mere occupancy, how can they utilize and enjoy it? The question is answered by Booth v. Goodwin, supra, — by their guardian taking possession and renting or leasing it for their benefit, as a means for their support and education. In this way it is held and occupied by them. The occupancy of their guardian or tenant is their occupancy. In case of a sale it would not be so held, but would be abandoned and forfeited.
The constitution intends and directs that the homestead of the father shall be preserved for the benefit of the minor children, in a particular manner, during their minority, and that is by occupancy or renting. It does not authorize any other disposition to be made of it. It provides that “if the owner leaves children, one or more, said child or children shall share with said widow, and be entitled to half the rents and profits, till each of them arrives at twenty-one years of age, each child’s rights to cease at twenty-one years of age, and the shares to go to the younger children, and then all go to the widow, and provided that said widow or children may reside on the homestead cr not; and in case of the death of the widow all of said homestead shall be vested in the minor children of the testator or intestate.” Const. 1874, art. 9, § 6. Under this section they are entitled to reside upon it, ánd to one-half of the rents and profits if there be a widow, that is to say, to rent it till each of them arrives at twenty-one years of age.
In Kessinger v. Wilson, 53 Ark. 402, the court said: “The land was set apart by the law to appellants (minors), when their father died, as a home and means of maintenance during their minority. Until the younger of them reached the age of twenty-one years, it could not have been lawfully sold to pay the debts of their father’s estate, or partitioned between them. It was not subject to sale, but might have been rented to raise means for their support. Until the younger reached his majority, it remained set apart as ‘a place, a sanctuary, to which he cr she might return to find the shelter, comfort and security of a home’ during his or her minority.”
In Sansom v. Harrell, 51 Ark. 429, the order in question was made by the probate court for the purpose of vesting a homestead in a widow, under a statute which provides: “When any one shall die, leaving a widow or.children, and it shall be made to appear to the probate court that the estate of the deceased does not exceed three hundred dollars, the court shall make an order that the estate vest absolutely in the widow or children, as the case may be,” Mansf. Dig., § 9. The husband of the widow left minor children surviving him at the time of his death. This court held the order void, and said: “The constitution sets it apart as a home and sanctuary for the widow and children, and, for the purpose of preventing any other person invading it under a claim of right, or interfering with them in the undisturbed enjoyment of the shelter, comfort and security of it as a home, guards and protects it against sales and transfers. The same reason which makes it unlawful to sell the land constituting it for the payment of the debts of the deceased owner, subject to the homestead rights of the children, during their minority, makes it unlawful to vest it in the widow, subject to the same rights of the children, during their minority. One endangers the quiet, security and comfort of a home provided in the homestead as much as the other, and both equally violate the spirit and manifest intent of the constitution.”
The homestead right of minor children, and the estate in the lands, which constitute the homestead, inherited by them in addition thereto, it was held in Kessinger v. Wilson, supra, are like two separate and distinct estates vested in different persons and following in immediate succession. Their right to the enjoyment and possession of the same cannot exist at one and the same time; and neither merges in the other. The probate court cannot authorize the sale of the homestead right. For that is a personal right and a sale of it is an abandonment which forfeits it. Neither can it order the sale of the estate inherited in addition to it, subject to the same, for the same reason it cannot be sold for- the payment of the debts of the deceased owner; and that is, ‘“one endangers the. quiet, security and comfort of a home provided in the homestead as much as the other, and both equally violate the spirit and manifest intent of the constitution.”
The object of the constitution as to homesteads is not the protection of the impecunious, and no others. It protects the family homes of all classes. It conserves only the homesteads owned and possessed by* a resident of this state “who is married or the head of a family.” Upon the death of the owner, it gives it to the widow for her life, and the minor children during their minority. From this it appears that the policy of the constitution “is to foster families as the factors of society, and thus protect the general welfare.” “To save them from disintegration,” as said in Waples on Homesteads and Exemptions, “and secure their permanency,” the constitution “seeks to protect their homes from forced sales so far as it can be done without injustice to others.” It “protects homes as the pillars of the state edifice, and thereby fosters the sentiments of patriotism and independence, and the spirit of free citizenship.” “There is,” said Tarbell, J., “unquestionably, no greater incentive to virtue, industry, and love of country than a permanent home, around which gather the affections of a family, and to which the members fondly turn, however widely they may become dispersed.” In fostering these sentiments and affections for the purpose of accomplishing its object, the policy of the constitution in preserving the homestead of the father for his minor children during their minority is further advanced by giving to the children an opportunity, when all of them have arrived of age and becomes sui juris, to acquire the homestead lands, in the event it becomes necessary to sell the same, and thereby hold them in the family. A sale of such lands during the minority of the children tends to defeat the magnificent policy of the constitution, and should be treated by all courts as void.
It follows that the probate court cannot sell the fee in the land without defeating the spirit and intent of the constitution. It seems to me that no argument or authority is necessary to prove that the constitution, from which it derives its jurisdiction, did not vest the probate court with the authority to defeat its policy or violate any of its provisions.