concurring.
On or about the 2d day of March, 1909, George Meisner died intestate in Buffalo' county, Nebraska, leaving a widoAV, and the. defendants who are his children by a former marriage. At the time of his death he owned a section of land near Shelton, in that county, 36-10-13, on the northwest quarter of which he and his wife then resided in a dwelling-house stipulated to be of the value of $8,000. They had lived together on this particular quarter about 14 years immediately prior to his death, and this quarter and the dAvelling-house are claimed as the family homestead. The land, exclusive of the dwelling-house, is claimed to have been worth $100 an acre. In addition to this particular section, George Meisner owned many sections in the AÚcinity, and his estate was worth more than a million dollars. By a voluntary agreement the AvidoAV and the heirs made partition of all the real property belonging to said estate except the home place; that is, the northwest quarter of 36-10-13. ' The widow contended that she was entitled to the use of the dAvelling for life, Avith so much of the land upon which it was situated as was necessary and appropriate for the reasonable enjoyment of the same as a home. The other heirs contended that the dwelling itself was of greater value than $2,000, and that they were entitled to. have the same sold, and that, after paying the widow the present value of a life estate in $2,000, they were entitled to have the remainder divided among the heirs. Mrs. Meisner and the heirs entered into an agreement for the submission of the ques*448tion in dispute to the district court and for the disposition of the said home place according to their rights as they might he determined by said court.. A suit was brought in the district court for Buffalo county, in which a judgment was rendered to the effect that, the home place being worth more than $2,000, the homestead right of the widow was limited to the use during her lifetime of the sum of $2,000 in money. By the judgment the present value of Mrs. Mei suer’s interest was found to be $1,464. The pleadings and an agreement made between the parties state the facts.
The district court found and decreed: “(1) That the plaintiff has a homestead interest in the premises described in the petition; but that said interest is limited to the use for life of the sum of $2,000. (2) That the present value of the homestead interest in said property is the sum of $1,464. It is further ordered and decreed that the plaintiff’s homestead interest in the premises in the petition mentioned be limited to the right to the use of $2,000 for and during her natural life, the present value of which is the said sum of $1,464; and that she be forever barred and restrained from claiming any further or greater homestead interest therein.” The plaintiff excepted to so much of said finding and decree as limited her .homestead right to the sum of $2,000, and appealed to this court from the judgment rendered.
Whether there is a succession to the surviving spouse implied by the word “homestead” in the present act of 1879 is the question to be determined. We will begin with the consideration of the homestead act of 1879. Laws 1879, p. 57. Section 17 of that act reads: “If the homestead was selected from the separate property of either husband or wife, it vests, on the death of the person from whose property it was selected, in the survivor for life, and afterwards in his or her heirs forever, subject to the power of the decedent to dispose of the same, except the life estate of the survivor, by will. In either case it- is not subject to the payment of any debt or lia*449bility contracted by or existing against the husband and wife, or either of them, previous to or at the time of the death of such husband or wife, except such as exists or has been created under the provisions of this chapter.” The foregoing denies the power of the decedent to dispose of “the life estate of the survivor.” The homestead selected from the separate property of either husband or wife vests “in the survivor for life.” Afterwards it vests .in the heirs of the husband or wife from whose property it has been selected. The homestead coming from the separate property of either the husband or wife vests “in the survivor for life.” Section 4 of the act provides: “The homestead of a married person cannot be conveyed or encumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both husband and/ wife.” This is substantially a reproduction of the substance of section 3 in the act of 1877, hereafter referred to and discussed. Seemingly the purpose of the legislature by the enactment of these sections was to protect the person who is once married from losing his or her home by any action of the spouse, or by any action of the creditors of the spouse. This may give a very substantial effect to the succession of the homestead right to the “survivor for life.”
The first legislation on the subject of the homestead in Nebraska was in 1860, when the legislature passed an act contained in 1 Complete Session Laws, p. 648. It is also in Revised Statutes 1866, sec. 525, p. 484. “A homestead, consisting of any quantity of land not exceeding 160 acres, and the dwelling-house thereon and its appurtenances, to be selected by the owner thereof, and not included in any incorporated town, city, or village, or, instead thereof, at the option of the owner, a quantity of contiguous land, not exceeding in amount two lots, being within an incorporated town, city, or village, and the dwelling-house thereon and its appurtenances, owned and occupied by any resident of the territory, being the head of a family, shall not be subject to attachment, levy, or *450sale, upon execution or any other process issuing out of any court within this territory, so long as the same shall he owned and occupied by the debtor as such homestead. This section shall be deemed and construed to exempt such homestead in the manner aforesaid during the time it shall be occupied by any one or more of the family of the debtor, or by the widow or minor child or children of any deceased person who was, when living, entitled to the benefit of this subdivision; provided, that the homestead mansion and 20 acres of land whereon the mansion is situate, and land adjoining the same to the extent of $500 in value, all being without an incorporated town, city, or village, shall be exempted, and no more.” Here is a homestead exempted as against creditors for the use of the family, and the widow or minor child of any deceased person who was entitled to the benefit , of the provision may occupy the land without any limit as to time, because the time is “the time it shall be occupied” by any one of the persons named, and they are determined by the act to be the family.
In Dorrington v. Myers, 11 Neb. 388, the head of the family was a widower. This court said: “When as the head of a family he entered into possession of this homestead, he became vested, so to speak, of a homestead estate therein, which was alienable only by sale or abandonment.” If this be true, then the occupant mentioned could continue indefinitely to occupy the place. This court said in the case cited: “Neither the death of the wife, nor her abandonment of her husband, nor the arrival at full age and departure from the parental roof of all the sons and daughters, Avould have the effect of dismantling the homestead of the protection of the exemption law.”
It will be noticed that the homestead provided for by section 525 of the code of 1866 had no specific value. It was a place to live. There was a limit to the value of the land adjoining the first 20 acres on which the mansion stood, but the “homestead mansion” and the 20 acres *451upon which the same stood might he of any value. It was not in the beginning an exemption of money, it was an exemption of a place to live. In the body of the section it is said: “This section shall be deemed and construed to exempt such homestead in the manner aforesaid during the time it shall be occupied by any' one or more of the family of the debtor, or by the widow or minor child or children of any deceased person who was, when living, entitled to the benefit "of this subdivision.” Here is the matter of occupation that is to be protected, and it applies to “any one” of the family of the debtor, or to his widow or minor child, or to the child or minor children of any deceased person who was, when living, entitled to the benefit of the act.
The act of 1860 was still in force on the' 24th of June, 1867, when it was amended by the legislature. The amendment made section 525 of the code of civil procedure of the Revised Statutes of 1866 read: “A homestead, consisting of any quantity of land not exceeding 160 acres, and the dwelling-house thereon and its appurtenances, to be selected by the owner thereof, and not included in any incorporated city or village, or, instead thereof, at the option of the owner, a quantity of contiguous land not exceeding two lots, being within an incorporated town, city, or , village, * * * or in lieu of the above, a lot or parcel of contiguous land not exceeding 20 acres, being, within the limits of an incorporated town, city, or village, the said parcel or lot of land not being laid off into streets', blocks, and lots, owned and occupied by any resident of the state, being the head of a family, shall not be subject to attachment, levy, or sale upon execution or other process issuing out of any court in the state so long as the same shall be owned and occupied by the debtor as such homestead. This section shall be deemed and construed to exempt such homestead in the manner aforesaid, as well after as before the death of the debtor, and in the event of the death of the debtor the estate in such homestead shall de*452scend to and be vested in his heirs at law or legatees, free and divested from all claims if (of) any creditors thereto.” 2 Complete Session Laws, p. 376. The section as amended at that time refers to land and dwelling-house and appurtenances being a place to live, and says notlwng of valuation. • It contains an amendment which seems quite important. It is: “This section shall be deemed and construed to exempt such homestead in the manner aforesaid, as well after as before the death of the debtor, and in the event of the death of the debtor the estate in such homestead shall descend to and be vested in his heirs at laAV or legatees, free and diArested from all claims if (of) any creditors thereto.” This section 525 of the code of civil procedure as amended still remained the law of the state at the time of the publication of the General Statutes of Nebraska of 1873. This act as amended continues the homestead exemption absolutely regardless of the value of the property exempted. The original act of 3860 refers to the dAvelling-house as the homestead mansion. As the law Avas left after it was amended June 24, 1867, the homestead was exempt without regard to its value, and it descended to the heirs divested of any claim of any creditor. The law continued in this way until the '25th of February, 1875, when a new act Avas passed. 2 Complete Session Luavs, p. 843. It will be seen that for 1.5 years there was in Nebraska a homestead law for the benefit of the family which contained no provision AAThat-ever concerning the Amine of the property exempted. It might be $5,000, or $10,000, or -any other sum of money.
By the act of February 25, 3875, there came into existence for the first time that provision that the homestead should not exceed $2,000 in _value. It reads as folIoavs: “The family homestead of each head of a family, consisting of any quantity of land not exceeding 160 acres, and the dAvelling-house thereon and its appurtenances, shall be exempt from attachment, levy, or sale upon execution or other process issuing out of any court in the state, so long as the same shall be owned and oc*453cupiecl by the debtor as such homestead; provided, that such homestead and appurtenances situated thereon shall not exceed $2,000 in value; provided, that such exemption shall not apply to homesteads- which have been heretofore, or which may be hereafter, mortgaged by the owners thereof.” 2 Complete Session Laws, p. 843. Section 1 as above quoted was amended February 13, 1877, to read as follows: “That section one (1) of an act entitled bln act to exempt the homestead of families from attachment, levy, or sale, upon execution or other process issuing out of any court in. the state of Nebraska,’ approved February 25, 1875, be amended to read as follows: Section 1. The family homestead of each head of a family, consisting of any quantity of land not exceeding 160 acres, and the dwelling-house thereon and its- appurtenances, shall be exempt from attachment, levy, or sale, upon execution or other process issuing out of any court in the state, so long as the same shall be owned and occupied by the debtor as such homestead; provided, that such homestead and appurtenances situated thereon shall not exceed $2,000 in value.” On the 19th of February, 1877, the homestead law was again amended and re-enacted. 2 Complete Session Laws, p. 933.
The act of 1875 heretofore mentioned was repealed by the act of 1879, along with the act of 1877, and it is the act of 1879 which remains to be discussed. In all the statutes referred to in which there is a limitation upon the exemption of $2,000, it is against creditors, and not against the survivor. The failure to express the same limitation upon the succession would seem to indicate that it Avas not the intention of the legislative body to impose this limitation in the matter of succession. The legislature has very carefully provided for a means to subject the excess of the value of the homestead above $2,000 to the payment of any judgment that may be rendered. Notiiing is said about a $2,000 homestead. It is just simply a homestead to which -“the survivor for life” succeeds. If the legislature had intended that only *454$2,000 should go to the surviving husband or wife, and that any excess above that should go to the other heirs, why should it not have said so? In the event that the homestead is above |2,000 in value, it is not saved at all as against the heirs, but $2,000 in money is saved as a homestead exemption. It is a different homestead that is contemplated by section 17 of the act of 1879. That is a homestead to which the survivor succeeds when the husband or wife dies. It is to furnish the home for the family. It is to include the shelter which protects those who are members of the family. The courts should establish a beneficent rule by which the widow and the children, when the husband dies, will be left in the home, and, after the children are grown up, the widow should be permitted to remain in the old home where she has resided with her husband, and which she has perhaps faithfully helped to earn and save. There is no reasonable excuse for cutting down the interest of the homestead succession which should go to the widow and provide for her a home during her declining years. The widow ought to be permitted to live in the same house which she and her husband have occupied together, and she ought not to be punished because the bread-winner is dead.
Section 1, ch. 49, laws 1907, enacts: “When any person shall die, leaving a husband or wife surviving, all the real estate of which the deceased was seized of an estate of inheritance * * * shall descend subject to * * * the rights of homestead.” It would seem that there is no conflict, between this statute covering the succession of heirs of descendants and the law of 1879 relating to homesteads. The statute is intended as a complete protection to the family against the right of arbitrary domination by the husband or wife who happens to hold the title to the homestead estate. This is the direct provision of section 4 of the act of 1879, and the same idea was fully expressed in section 3 of the act of 1877. Section 4 of the act of 1879 reads: “The homestead of a married person cannot be conveyed or encumbered unless the instrument *455by which it is conveyed or encumbered is executed and acknowledged by both husband and wife.” Laws .1879, p. 58. Section 3 of the act of 1877 reads: “A conveyance or encumbrance by the owner is of no validity unless the husband and wife, if the owner is married, concur in and sign the same joint instrument.” Laws 1877, p. 84. The homestead act of 1877 protects the homestead exemption from the creditor to the extent of $2,000, and it protects the homestead itself from the improvident act. of the owner of the legal title.
This record does not involve the rights of the creditors. It deals with the rights of inheritance of the heirs at law as against the widow. In Galligher v. Smiley, 28 Neb. 189, Chief Justice Reese, delivering the opinion of this court, said: “In its inception a homestead is a parcel of land bn which the family resides, and which is to them a home.” In Palmer v. Sawyer, 74 Neb. 108, the definition of Judge Reese was quoted with approval.
In Palmer v. Sawyer, supra, this court held that the man who had acquired a homestead estate during the subsistence of a family relationship was entitled to occupy the premises after the family relationship had been broken up by death and removal. In that case Albert Palmer purchased the land in controversy in the year 1898, and at that time was a widower with three minor children living with him upon the premises. One of the children died and two moved away, so that the father was left alone in the possession and occupancy of the premises. A judgment was rendered against him, and an execution was levied on the land, and there was a proceeding to enjoin the sale. The question to be determined was whether the plaintiff was entitled to claim the property as his homestead. The court held the “head of the family” to include “every person who has residing on the premises with him or her, and under his care and maintenance, either: (1) His or her minor child, or the minor child of his or her deceased wife or husband.” This court then recites section 17, and in connection with the two *456provisions so recited say: “It will be noticed that the provisions of these statutes reserve the homestead right to every person who is the head of a family as defined in section 15, whether married or unmarried at the time of the acquisition. When the homestead right is acquired by a married person, it cannot be conveyed or encumbered, unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both husband and wife, under section 4.” The court cite Whitlock v. Gosson, 35 Neb. 829, and say that this section of the statute was declared to make the conveyance of a homestead executed by the husband alone void, not only void as to the interest of the wife, but also as to the interest of the husband who executed it. When a homestead right is acquired, it can only be divested in the manner prescribed by statute. This principle is supported by a line of decisions of this court cited in the opinion, and has been subsequently followed in Giles v. Miller, 36 Neb. 346; Clarke v. Koenig, 36 Neb. 572; Violet v. Rose, 39 Neb. 660; Havemeyer v. Dahn, 48 Neb. 536. If the homestead in controversy had been selected from the lands of the deceased Avife, on the death of the Avife, the homestead right Avould haAre descended to the husband for life, whether any children had teen horn of the marriage or not. In Dorrington v. Myers, 11 Neb. 388, this court said: “Neither the death of the wife, nor her abandonment of her husband, nor the arrival at full ¿ge and departure from the parental roof of all the sons and daughters, would have the effect of dismantling the homestead of the protection of the exemption laAV.” In Galligher v. Smiley, supra, the court held that the homestead right Avas beyond the reach of execution. In the above case, Reese, C. J., in the body of the opinion, says: “At the time this homestead right was acquired, by a compliance with the provisions of the laAA, the whole of the tract now in dispute was exempt from sale so long as its occupancy continued. While the judgments, were liens, for the payment of which (if not allowed to become dor*457mant) the property was pledged, yet the homestead character could not he molested for the purpose of enforcing their payment. * * * The right could not be diminished by law without the consent of defendants. McHugh v. Smiley, 17 Neb. 620, 626; DeWitt v. Sewing Machine Co., 17 Neb. 533. For twenty years perhaps, and during the whole time of the existence of the indebtedness, the right could not be questioned. The land was included within the corporate limits of the city by law, and without the consent or procurement of defendant. His rights could not be diminished thereby.” Bassett v. Messner, 30 Tex. 604; Nolan v. Reed, 38 Tex. 425; Barber v. Rorabeck, 36 Mich. 399; Ham v. Santa Rosa Bank, 62 Cal. 125. In Galligher v. Smiley, supra, a 70-acre tract of land occupied as a homestead was brought within the city of Omaha by the extension of the city limits, and Avas attempted to be sold under execution. It was held that the homestead character of the land could not be changed without the consent of the occupant, and that the land could not be sold, although worth $200,000.
Except where it is narrowed by the qualification implied by the term “exemption,” the word “homestead” is used in the act of 1879 in its popular sense to designate a parcel of land on lohich the family resides. The section under consideration enables the creditor to reach the surplus above $2,000. That section, therefore, is for the benefit of the creditor, as well as for the benefit of the head of the family who claims the “homestead exemption.” It would seem that a consideration of the entire act makes it clear that the legislature intended the limit tation of value to apply only in favor of creditors, and not to a homestead succession to the heirs or devisees. The court is authorized, on the petition of the creditor, to order a sale by execution only when the land “exceeds in value the amount of the homestead exemption,” and prohibits the receiving of any bid “unless it exceeds the amount of the homestead exemption.” There can be no sale unless there is such excess. By section 12 the sum to *458be paid the claimant, where the whole tract is actually sold, is designated as “the amount of the homestead exemption■ ” In five subsequent sections of this same act of 1879 the limitation of pecuniary value of the homestead is six times referred to as the “homestead exemption.” These references apply in favor of creditors only. These terms are not applied in connection with the words heirs or devisees. Sections 4 and 17 substantially re-enact the provisions of the act of 1877. Section 4 protects the homestead and the family of a married person against the domination of a husband or wife who is seized of the record title. The legislative policy implied has no necessary relation to the separate policy giving some measure of protection to creditors. It is entirely rational and consistent for the act to make a pecuniary limitation as to the creditors, and no limitation as to heirs or devisees. Because the pecuniary limitation is applied in one case is no reason whatever that it should be in the other case. The legislative policy embodied in section 4 applies with equal force seemingly to section 17. It required section 17 to completely forbid the domination of the homestead estate by the holder of the legal title. The shelter of the family becoming destroyed upon the death of the husband or wife holding the legal title, the survivor and the minor children would be subject to be dispossessed of their home, although no rights of creditors should be involved. There is no pecuniary limitation attaching to the provision forbidding the homestead to be conveyed or encumbered except by deed executed and acknowledged by both husband and wife, or to the provision for survivor-ship on the death of the person from whose property it was selected. It is not a certain amount of money which the surviving spouse gets the use of.
The former acts were repealed, and, when the legislature of 1879 drew up a permanent form of the homestead law, it used the word “homestead” in creating an absolute disqualification of the husband or wife from whose property it was selected to encumber or alienate the home*459stead by a voluntary deed or devise, and preserved in favor of creditors only the limitation as to value. In the mind of the legislator there is the protection of the “homestead exemption” and the homestead itself, and sections 4 and 17 of the act offer protection against the domination of the person from whose property the homestead is selected, and without cmy reference whatever to its pecuniary value, and that means the protection of the homestead itself. There are two ideas here: (1) A place for the homestead claimant where he and his family are safe as to everybody if the place is not worth more than $2,000; and (2), if it does exceed $2,000 in value, then safe as to everybody except the creditor. Now, in this particular case there is no creditor, and therefore the homestead is a homestead as against everybody. Did the legislature intend, then, to turn the widow out because the husband is dead and the children have gone? What legislature would say, “We will maleé a law to apply to our widows when we die, and to our sisters when they have become widows and to our mothers when our fathers are dead and buried and the mothers are left alone in the old house, and we will say that these Avives as they become widoAvs are to be turned out of the homes they have occupied and in which the children have been raised, and they must find new and strange homes in which to finish their lives, so that the other heirs may each receive a few dollars more from the immediate distribution of the estate?” If no future legislature in Nebraska would do such a thing as that, then it would seem that no Nebraska legislature has done it. The right to dispossess the widoAV of the homestead selected from the property of her deceased husband is not written in the statutes.
It is contended that because this court in the case of Tyson v. Tyson, 71 Neb. 438, rendered a decision in conflict with the doctrine announced, therefore the will of the legislature should be ignored, and that an inadvertent mistake should bind the court in the future to a doctrine by which the surviving wife or husband is to be put *460out of the old homestead. In Tyson v. Tyson, supra, Peter Tyson died intestate in Washington county, and the plaintiff in error was the widow, and the defendant in error was the only child. The intestate.died seized of a farm containing 156f acres. The petition which was filed in the county court alleged that Mary Ella Tyson claimed a homestead interest in said premises, and occupied the dwelling-house and buildings under her claim that the same was the homestead of the decedent and herself during the lifetime of said decedent and at the time of his death; The petition was filed by the son, who alleged that the homestead consisting of the dwelling-house and outhouses and the said land exceeded $2,000 in value, and that Mary Ella Tyson was only entitled to use and occupy said dwelling-house and outhouses with so much land upon which the same was situated as, taken together with said buildings, shall equal in value the sum of $2,000, and no inore. It is also alleged that, in addition to said homestead, the said Mary Ella Tyson was entitled to dower interest in said land to the extent of one-third thereof; that, under the claim of homestead and dower, she wrongfully excluded the petitioner from said premises, and claimed the whole of said real estate as homestead and dower; that she refused to account for the rent of that portion not included in the homestead interest to which she was entitled; that said real estate was of the value of $11,750, and exceeded the homestead in value by $9,750. It was also alleged that Mary Ella Tyson claimed the right to receive from said estate the sum of $35 a month as support, and that she was drawing the same. There Avas a prayer for the appointment of three persons to set off the homestead and do Aver of the. plaintiff by metes and bounds, the former not to exceed $2,000 in value. The ansAver of Mary Ella Tyson admitted receiving $35 a month for her support, and claimed the exclusive right to use the land; alleged said land was the homestead of Peter Tyson and Mary Ella Tyson at the time of the death of said Peter Tyson, and that said home*461stead at the death of said Peter Tyson vested in his surviving wife, and that the son, Amasa F. Tyson, had no interest in the land during the lifetime of said Mary Ella Tyson. The answer also alleged that the county court had no right or power to adjudicate the title to said land. Upon the hearing, the county court found that Mary Ella Tyson had a homestead in the premises, or in so much thereof as should not exceed in value $2,000, and was entitled to dower therein, and appointed three persons to assign her dower and homestead by metes and bounds. From the decree rendered by the county court, Mary Ella Tyson prosecuted error to the district court, where the decree of the county court was affirmed, and the case was then brought to this court by petition in error.
It will be noticed that there is a difference between this case and the Tyson case. (1) In the Tyson case there was, in addition to the consideration of any homestead claim, the claim that “the said Mary Ella Tyson is entitled to clower interest, in said land to the extent of one-third thereof, and is entitled to have the same set aside.” This was alleged in the petition as above quoted. It was also stated in the opinion that “the prayer is for the appointment of three persons to set off the homestead and dower of the plaintiff by metes and bounds.” (2) In the instant case there is no claim of dower. The fact that dower and homestead, and the support of $35 a month were all claimed out of this estate of 156 acres no doubt tended to confuse the issues, and perhaps to cloud the minds of all connected with the case. In the Tyson case, it was said in the body of the opinion: “This court held, as we have seen, that, in order to oust the jurisdiction of the county court, the right of' the applicant must be disputed by presenting an issue of fact which, if established by proof, would defeat her claim, and such issue must be one which the county court by its organization is unable to try.” It would seem to be absurd that, if the law ousts the jurisdiction of the county court, there should be any contention that it presented a different question *462from an issue of fact ousting such jurisdiction. If the jurisdiction is ousted, that is enough.
The learned commissioner who writes the opinion follows up his first mistake with a second one. He proceeds to discuss the section relating to the exemption of $2,000 from judgment liens, and fails to reason upon the subject. He writes: “But it will not be claimed that, in a case of that kind, the surviving spouse would take a life estate in the excess by virtue of the homestead act. * * * Neither are we able to see that the surviving spouse has any greater rights when the claimant of the excess is an heir of the deceased instead of a creditor.” What the learned commissioner says is a mere dictum. Perhaps the idea of the commissioner who wrote the opinion is derived from the fact that he may have supposed the contention made was not supported by the pleadings. One of the contentions was that a widow not owning a residence suitable to her condition in life might remain in the dwelling-house of her husband so long as she remained a widow without being chargeable with rent. He held this was not supported by the pleadings.
We are now met with a statement that, because of this opinion, this court shall continue to stand where all are agreed that it is wrong to stand. It is urged as a reason why the mistake made in Tyson v. Tyson should stand is that it has been the accepted idea of the bar and the judges for a number of years that the $2,000 exemption applied as well to the survivorship as to the creditor. It is said that it will make a change in the rule of property rights, and that there will be sufferers in consequence of it. The answer to that is that the woman who lives to be an old woman and loses her husband seldom marries again. The same is true of the man who lives to be an old man. It is the exception when he marries again. There is no reason that the heirs are likely to be crowded out, because at the death of the survivor the heirs go into full possession of the property. The survivor rarely has many years to live. We are all inclined to' overestimate the *463length of time we have to live. The pictures are hanging on the wall of most of those who have preceded us. They are gone and maintain the discussion no longer. In a few years more we shall all he gone, and there will he other occupants of our places. Perhaps no one may say with absolute certainty the number of years that the average survivor is likely to live, perhaps five, perhaps ten, not more than that. At the end of that time the heirs will come into the exclusive possession of that which he has inherited from the deceased wife or husband who has gone before the survivor. The thing contemplated as dangerous to the property rights is not dangerous at all, because it takes nothing permanently, and only maintains a, meritorious use. In the interest of humanity this court should at once correct the mistake in Tyson, v. Tyson, and declare the will of the legislature as it has been expressed. The right of homestead may survive in favor of the husband on the death of the wife, even though no children of the marriage are living (Burns v. Keas, 21 Ia. 257; Ellis v. Davis, 90 Ky. 183, 14 S. W. 74; Roberts v. Greer, 22 Nev. 318, 58 Am. St. Rep. 755), or though the children have removed from the homestead upon which he still resides (Gray v. Patterson, 65 Ark. 373, 46 S. W. 730), or though the children have attained their majority (In re Feas’ Estate, 30 Wash. 51, 70 Pac. 270), or though he is not a housekeeper with a family.
The present value of Mrs. Meisner’s homestead interest is found to be $1,464. She does not. get this sum, because it is only the use of a $2,000 interest in the homestead that she gets, and, when she dies, the heirs of the deceased hold the property free and divested of any claim she may have.once had. The interest on the present value, therefore, is all she may safely count on. Six per cent, on 81,464, the present value, would give her $87.84 per annum. The smallness of the matter is quite apparent from a consideration of the insignificance of this sum. From this it would seem that eai’ly in the history of the people of our state they passed a law which guaranteed to the *464“family,” so long as it was needed for that purpose, a homestead which shielded the young and the strong and the old and the feeble alike, and all in the interest of the home. Sections 17 and 4 of the act of 1879 contain a recognition of the principle that underlies all the legislation of the state upon the subject. It is the protection of the home, when once it is established, as long- as it may be needed for any surviving husband or wife. The family is a unit of the state. The home protects it. As long as the family exists, the home should exist. This court has already said that the head of the family should be protected in the home, although the children have already grown to maturity and have left it. Galligher v. Smiley, 28 Neb. 189.
The judgment of the district court should be reversed.