(dissenting). Statutes such as are found in chapter 41 of our Civil Codes, including .sections 5070' and 5071, referred to in the majority opinion in this case, having for their purpose the conservation of homes and the protection from dependence and want of those members of a family who are helpless or otherwise unprovided for, proceed from a wise, humane, and benevolent purpose on the part of the legislator, and should be construed by the courts in the same liberal and generous spirit in which they are ordained. These statutes, especially in their exemption feature, are remedial in character, and should be interpreted in the spirit that will best carry into effect the remedy designed by the legislator. “The policy of the homestead law is the conservation of homes for the -good of the state. The mischief to be prevented by those laws is the breaking up of families and homes to the general injury of society and of the state. The remedy provided is the exemption of occupied family homes from the hammer of the executioner. Whether the exemption be only for the period of occupancy by the head of a family, or be extended during the life of his wife and the minority of his children, it is a remedy to be liberally accorded whenever *568the intent of the Legislature is doubtful and the necessity of favoring or disfavoring a remedial provision is thus thrust upon the court.” Waples on Homestead and Exemption, p 29. The immunities provided for in the homestead laws are not intended for or extended to one member of a family more than another. The “head of a family” stands as its representative in law, but the benefits extended to him in such relation are provided, not for his personal advantage, but for that of the family, and are received and held by him in trust for the good of every member. This is clearly recognized by the provision of our statute (section 5071) providing that upon the death of the person in whom the title to real property constituting a homestead is vested the homestead estate shall survive and descend to the surviving husband or wife, or, if there be no such surviving member, to the decedent’s minor child or children until the youngest attains majority.
It is conceded by the majority opinion that until four days before his death Alansom L. Holcomb was the head of a family within the meaning of section 5071, and as such entitled to a homestead exemption in the property in question. He was at that time a married man and the father of a minor child dependent upon him for maintenance, although his wife aaid child were not actually -residing at his place of abode. Their residence, however, was constructively there, and, if during this period he had died, there is no question but that a homestead estate in his land might have been claimed the wife for her own benefit and the benefit of the child. If plaintiff was the head of a family at the .time the divorce was granted to the wife, he did not during the life of the child cease to be such by reason of the divorce. B3^ the divorce the marriage relation was dissolved, and the wife ceased to be a member of the family of which her husband was the head; but the mutual relation of Holcomb and the child was entirely unaffected. The child was not a party to the quarrel of its parents or to the divorce action, a<nd could not by reason thereof be deprived of the measure of protection vested in Halcomb for the benefit of the family, children as well as wife. Holcomb -under the decree of divorce was still liable for the .payment of a specific sum to be used for the support of the -child. This sum was not, however, “awarded” to the child as found by th-e district court in the sense that the child’s right to parental maintenance was limited thereby. The award was only t-o the wife, and simply limited the claim of the wife upon t-he *569husband for that purpose. If the wife should become unable to furnish it, Holcomb was still liable for such additional sum as would supply a full maintenance for the child. The father, hawing a minor child under his maintenance, was therefore clearly the head of a family within the definition of section 5070 as well before as after the divorce, unless it can be said that the child was not “residing on the premises with him.” “Every person has in law a residence and “the residence of the father during .his life and after his death the residence of the mother, while she remains unmarried, is the residence of the unmarried minor children.” Rev. Codes 1905, § 12. The residence of the child by the provision of this statute being with the father could not be lost until another elsewhere was gained; and neither the child -itself by its own act or by that of its guardian could change its residence. If before the divorce, while absent from her husband’s residence in Oklahoma, the wife had died, the husband might still have claimed his- homestead exemption as the head of a family; for the child, though actually with its mother in Oklahoma, was still constructively residing with him, and for its benefit, if not his own, he might still have claimed the protection of the homestead laws. Doyle v. Coburn, 6 Allen (Mass.) 71. The reasons for protecting the homestead rights where the marriage relation has been terminated by a divorce are as strong as when it has been dissolved by death. Zapp v. Strohmeyer, 75 Tex. 638, 13 S. W. 9. The relation of Holcomb to the property and to- the child continued absolutely unaltered by the divorce. It is true the family relation was disturbed and broken by the divorce to the extent that the wife ceased to be a member of it; but his right to a homestead exemption in the property for the benefit -of himself and his minor -child still remained, and was in no sense lost or destroyed by the divorce. Biffle v. Pullman, 114 Mo., 50, 21 S. W. 450. If the right still continued in 'him after -the divorce by express terms of the statute, it descended to the child at his death, and the homestead should have been set apart to the child upon proper application such as was made to and granted by the county -court of Barnes county. A liberal construction of the law of our state providing for homestead -exemption, keeping in view the remedy obviously intended by .the Legislature, cannot, in my opinion, lead to a different result.
There is abundant authority for this conclusion. Walker v. Walker, 181 Ill. 260, 54 N. E. 956; Hall v. Fields, 81 Tex. 553, 17 *570S. W. 82; Woods v. Davis, 34 Iowa, 264; Seaton v. Marshall, 6 Bush (Ky.) 429, 99 Am. Dec. 683; Byers v. Byers, 21 Iowa, 268. The' Supreme Court of ' Nebraska under a statute substantially analogous to our own in all particulars has held that a party standing almost precisely- in the relation of Holcomb p'rior to his death to this property was entitled to a homestead exemption. Roberts v. Moudy, 30 Neb. 683, 46 N. W. 1013, 27 Am. St. Rep. 426.
(120 N. W. 547.)These considerations impel me to a conclusion the opposite of that reached by my associates. In my opinion the decree of the district court vacating the order of the county court of Barnes county setting apart the homestead for the benefit of the minor child during its minority should be reversed, and the order of the county court restored and affirmed.