dissenting.
I am unable, to concur in the majority opinion, for the following reasons:
The contest in this case is between plaintiff and the daughters of deceased by a former Avife. At the time of his death, Mr. Meisner was the owner of the northwest quarter of section 36, township 10, range 13, in Buffalo county, worth, exclusive of the buildings, $16,000. He had erected thereon a dwelling-house of the value of $9,000. For 14 years prior to his death, this dwelling and quarter section of land had been occupied by Mr. Meisner and plaintiff as their home. At the time of his death, he left other lands of the agreed value of $531,088. By an agreement entered into between plaintiff and the daughters, a division of all of the lands, other than the quarter section inferred to, has been agreed upon. It has also been agreed between them that plaintiff shall take the quarter section in controversy at an agreed valuation of $25,000, and account for the same under the decision to be rendered in this case; that is to say, she is to be given credit for the value of her homestead' interest a-s found by the court, and account for all in excess thereof *465up to the $25,000. The question decided by the district court, and before us for review, is the construction to be placed upon sections 1 and 17 of the act approved February 26, 1879, and in force after September 1 of that year. Laws 1879, p. 57. These two sections are as follows :
“Section 1. A homestead not exceeding in value $2,000, consisting of the dwelling-house in which the claimant resides, and its appurtenances, and the land on which the same is situated, not exceeding 160 acres of land, to be selected by the owner thereof, and not in any incorporated city or village, or, instead thereof at the option of the claimant, a quantity of contiguous land, not exceeding two lots within any incorporated city or village, shall be exempt from judgment liens, and from execution or forced sale, except as in this chapter provided.”
“Section 17. 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 ©state of the survivor, by will. In either case it is not subject to the payment of any debt or liability 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.”
Succinctly stated, the question is: Does the $2,000 limitation, expressed in section 1, apply to exemptions against creditors alone, or does it also apply to the right of succession under the provisions of section 17? It is argued with great force by counsel for plaintiff that the language used in the different sections of the act indicate that the legislature had in mind what might be termed two homesteads — one, the actual homestead, and the other, the homestead which could be held as against creditors— and that the $2,000 limitation applies only to the latter. *466The title to the act reads as follows: “An act to provide for the selection and disposition of homesteads, and to exempt the same from judgment liens, and from attachment, levy, or sale, upon execution or other process.” It will be seen that the title recites that the act is “to provide for the selection and disposition of homesteads, and to exempt the same,'* not “the same to the extent of $2,000," but “the same** — that is to say, the homestead — from judgment liens, etc., indicating, I think, that the intention was to exempt the entire homestead, the selection of which the act following was to provide for, from judgment liens, etc. Section 1 of the act reads: . “A homestead not exceeding in value $2,000, consisting of the dwelling-house in which the claimant resides,” etc. If we read this clause of section 1 with the same punctuation appearing in the title, which would place a comma after the word “homestead,” the clause would then read, “A homestead, not exceeding in value $2,000, consisting of the dwelling-house,” etc. That punctuation, or reading it in that manner, would seem to indicate that- the $2,000 relates to the entire homestead, and not to a subsequently to be determined portion thereof. That this is the construction which has been placed upon this act for over 30 years cannot be questioned. Estates have been divided and lands partitioned, all over the state, under that construction.
In Meek v. Lange, 65 Neb. 783, suit ¿was brought to recover damages for the breach of an executory contract, made by the husband without the assent of his wife, for the sale of the homestead. In the syllabus it is held that an executory contract for the sale of the family homestead, to which the wife is not a party, is invalid, and its nonperformance does not furnish a basis for recovery of damages for the loss of the bargain. On page 788, speaking through Mr. Commissioner Hastings, it is said: “Doubtless, in case of bad faith, or where the action of defendant has caused special damages, a right of action would arise for such injury. But it would seem entirely inconsistent *467to allow a recovery of damages for the loss of a bargain which plaintiff made in full view of evident facts Avith one whom those facts rendered incompetent to sell the property. As above stated, only damages for loss of the bargain were allowed in this judgment. The judgment, therefore, cannot stand. Possibly the plaintiff is entitled to nominal damages for the absolute refusal to convey any of the premises, as they were found to be Avorth more than $4,000. The homestead right evidently does not protect defendant as to more than $2,000 worth.” It Avill be obseiwed that that Avas not a case involving the question of exemptions against creditors, but that it involved the whole right of homestead, Avliich right the court there said did not protect defendant as to more than $2,000.
Upon the third hearing of Teske v. Dititberner, 70 Neb. 544, the last tAvo paragraphs of the syllabus read:
“(10) A parol agreement made by the husband with a third party to devise property embraced within a homestead, like an agreement to convey the reversionary estate, is in conflict with the provisions of the homestead act and is not specifically enforceable, even though substantial performance of the contract by the promissee may have taken place.
“(11) When such an agreement includes other land than that included within the homestead, the contract may be specifically enforced except as it affects the homestead property.”
In the opinion, on page 550, it is said: “In speaking-of the homestead, avc Avish to be understood as having reference to that part of the real estate in controversy which consists of the dwelling-house, in which the promisor, Frederick Teske, and his family, at the time, resided, and its appurtenances and the land on which the same are situated, not exceeding 160 acres in area, nor $2,000 in value.” Here again this court, in a case where the question of the rights of creditors Avas not involved, limited the homestead to the dAvelling-house and its appurtenances, and the land on which the same are situated, not exceeding 160 acres in area, “nor $2,000 in value,”
*468In Tyson v. Tyson, 71 Neb. 438, the third paragraph of the syllabus reads: “In a contest between the widow and the heirs at law as to the extent of her homestead in suburban lands, she is entitled to a homestead not exceeding 160. acres in area and $2,000 in value.” In the opinion, on page 443, it is said: “Another contention of the plaintiff is that she is entitled to hold and occupy the entire tract of land as a homestead, regardless of its value, and this contention is supported by a more plausible argument than we should have thought possible in view of the plain provisions of the hbmestead act. A homestead within the meaning of that'act, chapter 36, Compiled Statutes (Annotated Statutes 6200), is defined and limited by the first section thereof, which is as follows: (Section 1 of the act set out.) The first limitation imposed is that the homestead shall not exceed $2,000 in Amine; the next, that it shall not exceed 160 acres of land not in any incorporated city or village, or, in lieu thereof, not exceeding two lots within such city or village. The head of a family might actually occupy more than 160 acres of land, not in an incorporated city or village, or more than two lots in such city or village, as a family homestead. 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. The limitation as to value is as certainly and positively fixed by statute as the limitation as to quantity. 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. The homestead, Avhich vests in such survivor for life, is the identical homestead in quantity and Amlue defined in section 1 of the act. The statute recognizes none other.” It will be seen that the question under consideration in the case at bar Avas squarely before the court, and was considered and squarely decided in that case.
In Wardell v. Wardell, 71 Neb. 774, the third paragraph of the syllabus reads: “A homestead exemption is by the law of this state limited to the value of $2,000, and *469if, upon tlie death of a husband, the dwelling and the tract of land adjacent thereto, selected from his estate and occupied by himself and family as a homestead, exceed that value and are so situated that the dwelling together with the grounds upon which it stands, and not exceeding that value, cannot be set apart from the residue of the tract, no legal estate in the land, or in any part of it, passes to the widow and heirs under the homestead act, but in lieu thereof an equitable interest to the value of $2,000 in the entire tract does pass to them thereunder.” In that case the land consisted of 120 acres, including the family dwelling-house, the whole being of the value of about $14,000. Upon the trial it was found that the Avalué of the dAA'elling-house alone AAras $3,000, and of the build-' ings appurtenant to it, $3,500, and of the equitable title to the land, $7,20(3, and that the premises were not susceptible of division or partition, so as to permit the dAvelling-house and the ground upon which it Avas erected, of a value not exceeding $2,000, to be set apart as a homestead. The district court thereupon decreed a sale of the entire tract and the investment of $2,000 of the proceeds thereof at interest during the life of the AvidoAv, she to receive the interest and income thereof until her death, the principal to then descend to the heirs at law of the decedent. The Avidow prosecuted error to this court. Her contention was that the provisions of the statute for appraisement and setting apart of the homestead during the lifetime of the person from whose estate it Avas selected, or the sale of it, in instances in which it is not susceptible of division, and the setting apart of $2,000 of the proceeds of the sale, are not applicable after his death, and that, hence, the statutory restriction as to the value of the exempt property ceases with that event, “and that therefrom the entire premises occupied as a homestead, to the whole extent of the territorial limits prescribed by'statute, acquire the character of exemption regardless of values.” In the opinion, on page 777, it is said:. “We think this reasoning is at fault in overlooking the fact that that *470which constitutes the homestead, and that alone, therefore, which passes to the surviving spouse, in cases of this kind, is not necessarily any defined tract of land, but only so much of a definable tract, if any, as, including the dwelling house and appurtenances, shall not exceed $2,000 in value.” The judgment of the district court was affirmed. It is said that the language quoted from the last above case is obiter dicta, as applied to this case, for the reason that there the right of creditors was involved. The record ifi that (‘ase, however, shows that the creditors were general creditors of the decedent who had not obtained any lien upon the land prior to his death, and I am inclined to think that, if the right .of succession is as contended for by the plaintiff here, it would have been good in Wardell v. Wardell, for the reason that, as insisted in that case, the right of succession attached prior to even the assertion of any debts against the decedent. But whether it be clictci or not, it shows the Anew of the learned commissioner avIio wrote that opinion, concurred in by his tAVo able associates, and approved, without dissent, by the court.
In Jerdee v. Furbush, 115 Wis. 277, 279, 281, the court had before it the question of the rights of a grantee of a homestead under a conveyance made without the wife’s signature. In the opinion the court say: “We cannot at this late day decide that as a new question. If it were otherwise, a different result of this appeal might occur tlian the one we have decided upon.” The opinion then cites and comments upon two prior decisions of the court, and. adds: “The law has thus stood for nearly a quarter of a century, and whether the court’s construction of the statute Avas right or Avrong it must now be considered the laAv the same as if the idea involved Avere literally expressed in the statute. It relates to property. It has become, by the lapse of time, a rule of property, which, by Avell-settled principles, can only be rightly changed by legislative enactment.” In conclusion the court say: “It folloAvs from Avhat has been said that (naming the two *471cases referred to) rule this case. To try to distinguish one case from another upon the facts, where the ruling principles in one are plainly identical with those in the other, creates uncertainty and confusion in the law. That should be avoided as to any subject, but particularly in respect to titles to real property.” The reasons there given for following the former decisions appeal to me as eminently sound. The ruling principles in the four former opinions of this court are plainly identical with the present case, and to attempt now to distinguish one from another upon the facts would, as stated by the Wisconsin court, “create uncertainty and confusion in the law.”
Our former holdings, together with a similar and statewide construction of the act by the district courts for more than 30 years, should set the matter at rest. I am unwilling at this late day to disturb that which for so many years has been considered settled. I therefore conclude that the limitation of |2,000, expressed in section 1, is not restricted to exemptions against creditors, but also applies to the right of succession under the provisions of section 17, and insist that a construction of a statute, established by a line of former decisions of this court, uniformly followed by the district courts, and long acquiesced in by the bar, should not, ordinarily, be disturbed, even though the court, as subsequently constituted, might have placed a different construction upon such statute, if before it for the first time.
Barnes and Letton, JJ., concur in above dissent.