dissenting. I am unable to concur in the conclusion reached by the majority of the court, because it appears to me to be in conflict with the principles upon which at least three of the former decisions of this court rest, viz., Elliott v. Mackorell, 19 S. C., 242; Ex parte Ray, 20 Id., 246; and Chalmers v. Turnipseed, 21 Id., 136; and not in accordance with the proper construction of the homestead law. The intestate having died in 1877, the rights of his heirs then vested, and the question involved in this case must be determined by the law then of force. It is conceded that the 4th section of the act of 1873 (15 Stat., 371) furnishes us with the law, and it reads as follows: “If the husband be dead, the widow and children, if the father and mother be dead, the children living on the homestead, whether any or all such children be minors or not, shall be entitled to have the family homestead exempted in like manner as if the husband or parents were living; and the homestead so exempted shall be subject to partition among all the children of the head of the family in like manner as if no debts existed: provided, that no partition or sale in that case shall be made until the youngest child becomes of age, unless, upon proof satisfactory to the court hearing the case, such sale is deemed best for the interests of such minor or minors.”
Now, it will be observed that this section contains no restriction upon the general right to partition except in the single instance of there being minor children interested, and then the right to *99have partition made is only postponed “until the youngest child becomes of age.” But as there are no minor children in this case, I can find nothing in the law which in any way interferes with or postpones the ordinary right which the heirs of the intestate have to demand partition of his real estate. It having been determined in the cases above cited, that the homestead laws do not create any new estate, and certainly do not undertake to divest any previous estate, and that they were not designed “to alter or in any way affect the statute for the distribution of intes-tates’ estates,” it seems to me to follow necessarily that when Edward Hanvey died intestate, the title to his real estate immediately descended to and vested in his heirs at law, charged only with a liability for the payment of his debts; and that when relieved of this charge, as it has been by the homestead law, it became subject to partition just as if there had been no debts, there being, as we have seen, no provision in the homestead law which would defeat, or even postpone, this right to partition.
It does not seem to me that the mere fact that the widow, and the widow only, could invoke the protection afforded by the homestead laws, should affect the question in this case. The only obstacle to the right of the heirs to demand partition being the liability of the land to be subjected to the payment of the debts of their ancestor, whenever that obstacle was removed, no matter by whose agency, the real estate of the intestate became at once subject to partition amongst his heirs at law, of whom the widow was one, under the provisions of the act of 1791, in the absence of any legislation modifying or postponing such right to partition. The homestead laws operate simply as a shield to protect the exempted property from the grasp of creditors, leaving the title to such property, with all its incidents, just where it was before such shield Ayas interposed.
It seems to me, therefore, that until the legislature sees fit to modify or postpone the right of partition secured to the heirs of an intestate under the laws, as I understand them now to be Avritten, the right to demand partition of real estate exempted from the payment of debts under the homestead law cannot be denied.
Judgment affirmed.