dissenting.
The facts in this case are not in dispute. They are quite fully stated in the former opinion, ante, p. 363. It appears that for about three years after Mr. Weathering-ton became insane Mrs. Weatlierington maintained herself and children upon the homestead, when she removed the family therefrom, and went to the state of Illinois and established a home there, without any intention of returning to the premises in question. The fourth paragraph of the syllabus of the former opinion is:
“Neither spouse can abandon the homestead for the other without his, or her, free consent.”
This is the principal proposition discussed in the former oiiinion, and in its support two cases are cited: Blumer v. Albright, 64 Neb. 249; Palmer v. Sawyer, 74 Neb. 108. The provision of the statute that “the homestead of a married person cannot be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife” (Comp. St. ch. 36, sec. 4) is quoted in the opinion, and many of the numerous decisions of his court enforcing that provision of the statute are cited. This language of *373the statute is plain and unambiguous, and there is no doubt that it has been correctly construed and applied in the decisions cited. If, then, this was the homestead of the parties at the time that Mrs. Weatherington conveyed it to Cross and Johnston, there is no doubt that the statute quoted applies, and if neither party can under any circumstances abandon the homestead for the other, then these premises having been the homestead of Mr. Weath-erington must continue to be so until voluntarily abandoned by him or conveyed by the joint deed of husband and wife. The record shows that in 1894, after Mr. Weatherington had been in the asylum at Lincoln for about three years, he Avas considered incurably insane and Avas for that reason transferred to the asylum at Hastings. Thereupon Mrs. Weatherington, finding herself alone Avith her family of young children, the season at that time being unfavorable and the farm unproductive, and she being unable to maintain the family in the homestead, attempted to abandon the homestead and establish another home. Tavo years after she had taken this action, the mortgage and taxes being due upon the land, she faced the alternative of either selling the land for its fair value, subject to the mortgage, or losing it altogether. She held the legal title in the land. It is not necessary to consider whether she had paid Mr. Weather-ington' a consideration therefor. The transfer of title from him to her through an intermediary, whether a sale or gift, would leave Mr. Weatherington no interest in the land, except such as he at that time had under the homestead law.
The object of the homestead law is to preserve a home for the family. Its humane purposes are for the benefit of the children, as well as for the head of the family. It may be abandoned or conveyed without the consent of the minor members of the family, because their very helplessness renders them incompetent to judge of their oAvn best interest, and not because the law is less tender of their rights or their welfare than it is of the homestead *374right of the spouse of the owner of the legal title.. To accomplish its beneficent purposes it has been uniformly held that the homestead law must be liberally construed. That construction must be adopted,' if possible, which Avill preserve the home. When it becomes manifest that through unfortunate circumstances the home must be abandoned or entirely lost to the family, common prudence dictates that so much of its value be saved as possible and invested in a new home. There is a provision of the statute which is of great importance in view of such conditions. The proceeds of a sale of the homestead retain the homestead character until, within a specified time, a new home may be obtained. The misfortune which drove Mr. Weather ington away from his home was one of the very many misfortunes which compelled the entire family to abandon it. There is no doubt that the head of a family may under such circumstances choose another home, and that it is the duty of all the members of the family to acquiesce in that choice. Under the homestead law the husband is generally considered the head of the family. If he, for good reason, deems it best to abandon the homestead for another, and the wife is dissatisfied and determined to retain her homestead right, it would no doubt be necessary for her to take some measures to declare such intention. If she remained in the home her intention would be manifest, but if she voluntarily left the home, although she did not accompany the family to the new home, the presumption would exist that she had abandoned the home also; if she was incompetent to exercise any volition in the matter, and it was plainly in her interest, she might be removed with the family, and the abandonment of the homestead would be complete. If “neither husband nor wife can abandon the family homestead, and thereafter sell and convey the same to another to the exclusion of the homestead right of an insané spouse,” as the- syllabus of the present opinion states, then, in all cases where the homestead is abandoned by the family and afterwards conveyed by the *375spouse in whose name the legal title is held, it will be necessary .to inquire whether the other spouse was sane at the time, and so competent to voluntarily abandon the homestead. In Blumer v. Albright, supra, the husband and wife with their two children left the homestead, where they resided, to go to another town to enable the husband to enter into a business for a term of years. They procured no other home, and the question was whether they had abandoned their homestead. It appeared that the wife had at all times refused to abandon the homestead, had continually declared that she reserved it as her home and expected to return. The husband Avas so far incapacitated by excessive drink and bad habits that it was at least doubtful whether, as against the interests of the. home, he should be regarded as the head of the family, and it was decided that there was no abandonment of the homestead on the part of the wife. In Palmer v. Sawyer, supra, the Avife was deceased, and the husband Avith three minor children occupied the premises claimed as a homestead. AfterAvards one of the children died, and the other two having arrived at majority, left the home, leaving their father alone in possession and occupancy of the homestead. The question was whether his right of homestead had been extinguished by the fact of his family leaving him, and it was decided that he still retained his homestead right in the property. The language used in these opinions, and relied upon in the former opinion in this case, was perhaps correct in the sense in Avhich it was used in those opinions, but it has no application, and was not intended to have application, to circumstances such as are involved in this case.
The husband is not alAvays the head of the family. “A head of a family is one Avho controls, supervises, and manages the affairs about the house." 21 Cyc. 467. A married woman on whom a family is dependent for maintenance is the head of the family, the husband being an invalid. Schaller v. Kurtz, 25 Neb. 655. And in State v. Houck, 32 Neb. 525, Avhere the husband was a cripple, *376and unable to work, and contributed nothing for the support of the family, which was supported entirely by the wife, she was held to be the head of the family within the meaning of the exemption laws, and, so, where a husband had been insane and had recovered from the insanity so far as to live at home with his wife and family, but did nothing toward his own support or that of the family, and the wife with the help of the children carried on the farm on which they lived, she was held to be the head of the family and entitled-to the ■ exemptions allowed by statute. Temple v. Freed, 21 Ill. App. 238.
In McKnight v. Dudley, 148 Fed. 204, the circuit court of appeals of the sixth circuit said: “It is true the husband is designated as the head of the family and given the right to choose a reasonable place of abode, but, of course, this right exists only while he is sane.. When he was placed in the asylum, his wife became the head of the family, the burden of support fell upon her and the right to choose a place of abode went with it.”
A liberal construction of our statutes for the purpose of preserving the home will consider the wife, who is supporting herself and her minor children, as the head of the family when for any reason the husband is entirely incapacitated to take that position. The head of a family whose spouse is utterly incapacitated may change the domicile of the family when circumstances beyond her control compel such action. When Mrs. Weatherington removed the family to Illinois, she changed the domicile of the family. Her husband had been incapacitated for three years. It was believed by( those most capable of judging that he would never be competent to act rationally for himself or for the family. When the homestead had been abandoned for two years, and a new home was being procured, she sold her farm and made her home in Illinois for nearly ten years longer, before any question was raised as to her right to abandon the homestead. Five years after the farm was abandoned as a homestead this plaintiff bought it in good faith, for full value, and *377without notice of any latent claims. The title so purchased ought to he protected.
There are other important matters involved in the case which seem to demand a reversal of the judgment, and I cannot concur in disregarding them.