dissenting:
I concur in so much of the opinion of the court as holds that the plaintiffs inherited an interest in that portion of the demanded premises which was not included in the declaration of homestead, and I concur in the conclusion that the judgment of the district court should be reversed. But upon the more important question which is so largely discussed by Justice Leonard, I dissent from the views of my associates.
In my opinion, our homestead law of 1865, considered without reference to the circumstances under which it was borrowed from the state of California, does not sustain the construction which is placed upon it. The first section, it is true, provides that the homestead shall be held by the husband and wife as joint tenants, and if that section stood alone there would be no reason to suppose that the legislature meant anything different from what they said, though even then it would not necessarily follow that the right of *327survivorship incident to an estate in joint tenancy would attach to the fee. On the contrary, if section 4 was out of the act, it might reasonably be held that the right of survivorship attached only to the homestead as such, and that whenever it ceased to be a homestead, the estate would descend to the heirs of the person or persons who owned it at the time it was declared upon. But the provisions of section 4 must be considered together with those of the first section; and they are not only useless, they are positively repugnant, upon the supposition that the homestead is held by husband and wife in strict joint tenancy. I prefer to give their full force and effect to the specific provisions of section 4 rather than to the technical words “joint tenants" in section 1. Every member of the legislature knows what he means when he gives particular directions that property shall be set apart for the use of the widow and children of a deceased person, but how many know the meaning of joint tenancy?
If the circumstances under which our homestead law was adopted are considered, I think that, far from weakening, they add very greatly to the force of these conclusions. There is no room for doubt that the occasion for enacting a new homestead law in 1865 was the requirement of the constitution then newly adopted (art. iv, sec. 30) that laws should be passed providing for the recording of homesteads in the counties wherein they were situated. In compliance with this injunction of the constitution the California law of 1860 was copied. An attempt is made in the opinion of the court to show that when we borrowed the California act it had already received the construction here placed upon it, but I think the California decisions referred to by the court may be safely challenged to show that not only had the act of 1860 never been so construed before we adopted it, but it has never been so construed to this day. On the contrary it has been construed otherwise. The expression let fall by Judge Crocker in the case in 23 Cal. (Estate of James), was as loose a dictum as can be found in the reports of that state, upon a point the decision of which was expressly avoided, and has never been referred to in any *328subsequent opinion of their supreme court as having the semblance of authority. A dictum which receives no consideration whatever in the court where it is uttered certainly does not grow into authority when transported into another state.
Much more importance, I think, is attributable to the fact that when we adopted our homestead law and resorted to California for a model, we had their act of 1860 as originally adopted and as amended in 1862 to choose between. The language of the amendment of 1862 is quoted in the foregoing opinion, and no one can doubt that it was intended to add the incident of survivorship to the estate created by the act of 1860. We chose the act of 1860 and rejected the act of 1862. The inference is that we did not desire the law of 1862.
The California cases involving a construction of their various homestead laws are extensively quoted in the opinion of the court, and an attempt is made to show that they sustain its conclusions; but those who may have the curiosity to examine the cases in the reports will find, if I am not mistaken, that they are all consistent with the conclusion that it was not until the act of 1862 that the right of survivorship attached to the homestead. The very opinion of Judge Sawyer from which such extensive quotations are made (see Barber v. Babel, 36 Cal. at page 17) says: “And since the amendment of 1862 the right of survivorship, the grand incident of joint tenancy is added,” showing plainly that he did not mean what it is assumed he meant by other portions of his opinion. It is not worth while, however, to pursue this subject, as my only desire is to record my dissent from a decision which, henceforth, becomes a rule of property in this state-and involves the consequence of disinheriting a man’s children in favor of those of another. In my opinion this is a much more serious consequence than those which are depicted in the opinion of the court; and those consequences by no means follow from my construction of the laiv. There is no difficulty in holding that a child may inherit an interest in the homestead from its deceased parent without being driven to the conclusion that *329it could thereby destroy the homestead. Its interest would remain in abeyance, while the property retained the character of a homestead, and until the death of the survivor of its parents, but could then be asserted and enforced.