This is an appeal from a judgment of the district court of Barnes county, and comes here for trial de novo under the provisions of section 7229, Rev. Codes 1905.
The facts -are not in dispute, and are briefly as follows: Alanson. L. Holcomb, deceased, and Lucy A. Holcomb, were husband and' wife. Emra J. Holcomb is the lawful issue of such marriage. In the fall of 1898 the said Alanson L. Holcomb and -his wife, Lucy,, together with their minor son Emra, went to reside upon the N. W. J4 of section 10, township 142 N. of range 57_W., in Barnes county, which real property was owned by the husband. Said real property-was th-e only real property owned by Alanson L. Holcomb, and the same was the homestead of himself and said family. In the spring-of 1905 the mother, with the consent of her husband, took her said' child to Oklahoma, where she was advised to go for her health, and remained until January 1906. During their absence, the husband and father remained in possession of the homestead. Upon her return from' Oklahoma, and for reasons which it is unnecessary to-mention, Lucy A. Holc-omb commenced divorce proceedings against her husband, which resulted on April 10, 1906, in a judgment in her favor divorcing her from her -said husband and by such judgment-she was awarded the custody of such minor child, and Alanson L. Holcomb, the defendant therein-, was adjudged to pay the sum of $100 per annum for the support and education of said minor child, which allowance w-as made a lien upon said land. A few days after *565the judgment aforesaid was entered, Alanson L. Holcomb died intestate. At the .time of his death he was the fee owner and in possession of said premises. In the course of the administration of his estate, and on June 16, 1906, Emra J. Holcomb, through his legally appointed guardian Lucy A. Holcomb, petitioned the county court to set apart said premises .as the homestead of the deceased to Emra J. Hjolcomb, such minor child. Such petition was by the county court granted, and an order made accordingly. From this order an appeal was prosecuted to the district court, where such order was reversed, and it is from the judgment reversing such ■order that this appeal was taken.
Claims aggregating a large amount were filed against said estate by creditors, and the sole question involved relates to 'the respective rights of such creditors and certain legal heirs other .than Emra J. Holcomb and the homestead claim of such minor child. The latter’s rights are wholly dependent for their validity upon the question whether Alanson L. Holcomb at the time of his death possessed a homestead right in said premises. It is a self-evident proposition that, if the father at the time of his death had no homestead right in the premises, the child can have none after his father’s death. The son, in other words, -could acquire no rights not vested in his father at the time of his death. The pertinent inquiry, therefore, is: Did Alanson L. Hol-comb, after the entry of the judgment -of divorce, continué to possess his homestead right in said -premises? If not, the judgment appealed from was clearly correct. By section 208 of the Constitution the legislative assembly is commanded to recognize the right of the debtor to enjoy the comforts an-d necessaries o-f life by wholesome laws exempting .from forced sale to all heads of families a homestead. Pursuant to this mandate, the Legislature, by the enactment -o-f Section 5049, Rev. Codes 1905, has exempted the homestead of every head of a family not exceeding in value $5,000, and by -section SOTO, Rev. Codes 190-5, the phrase “head of a family” is -defined as including “(1) the husband or wife when the claimant is a married person; but in n-o -case are both husband and wife entitled each to a homestead under -the provisions of this chapter. (2) Every person who has residing on the premises with him or her -and under his -or her -care and maintenance, either: (a) His -or her child or a child of his or her deceased wife or husband whether by birth or adoption; (b) a minor -brother or sister or the minor -child- of a deceased brother or sister; (c) a father, *566mother, grandfather or grandmother, (d) the father or mother, grandfather or grandmother of a deceased husband or wife; (e) an unmarried sister of .any other of the relatives mentioned in this section who have attained the age of majority and are unable to take care of or support themselves.”
It will thus be seen that, to be entitled to the homestead right or exemption, the person must be the “head of a family,” and, where such person is unmarried, he or she must have residing on the premises with him or her and under his or her care and maintenance one or more of the persons enumerated in subdivision 2, § 5070, Rev. Codes 1905, supra. By section 5071 it is provided that, “upon the death of a person in whom the title to real property constituting a homestead as defined in this chapter is vested, a homestead estate in such real property shall survive, descend, arid be distributed to the persons and in the order following: (1) To the surviving husband or wife for life; or (2) there being no. surviving husband or wife to the decedent’s minor child or children until the youngest attains majority; or (3) the surviving husband or wife dying before, then thereafter to the decedent’s minor child or children until- the youngest attains majority.” It is plain from the very language of the last section) that no homestead estate can survive, descend, or be’distributed to the persons therein mentioned' if the person having the title to such real property is not entitled to a homestead right therein at the time of his or her death. By the judgment in the divorce action the family ties were severed, and Alanson L. Holcomb became a single person, and it is not contended that he thereafter -had residing with him upon such land any of the persons mentioned in .section 5070, Rev. Codes 1905. The custody of the minor child, Emra, was by the judgment, awarded to his mother, and provision was therein made for the support and education of such child. No disposition was made of the homestead by the decree, and hence under the decision in Rosholt v. Mehus, 3 N. D. 513, 57 N. W. 783, 23 L. R. A. 239, it remained the property of Alanson L. Holcomb discharged from all rights or claims of the other party. From the fact that it remained the property of Alan-son it does not follow that it remained his homestead, and under section 5070, supra, it could not so. remain, as he was not the head of a family as therein defined. Regardless of what the rule may be in other states, it is very clear that under the provision of our Code relating to the homestead Alanson L. Holcomb, after the entry of *567the decree of divorce and at the time of his death, possessed no homestead right in the premises, and hence no such right descended to 'his minor son, whose custody was awarded to the mother, and whose support and education was expressly provided for in such decree: We do not construe the opinion in Rosholt v. Mehus, supra, as; announcing a contrary rule. In fact, the opinion in that case expressly cites with approval the cases of Wiggin v. Buzzell, 58 N. H. 329, Heaton v. Sawyer, 60 Vt. 495, 15 Atl. 166, and Biffle v. Pullman, 114 Mo. 50, 21 S. W. 450 which cases lend support to the views above expressed. See, also, Cooper v. Cooper, 24 Ohio St. 488.
Most of the authorities relied upon by appellant’s counsel will be . found, upon examination, not in point. They were decided under statutes different from our Code or the facts were different.
The conclusion which we have reached upon the first point presented renders a consideration of the other propositions unnecessary.
The judgment appealed from is affirmed.
Morgan, C. J., and Carmody, J., concur. Spalding, J., being disqualified, took no part in the decision.