(concurring specially). I concur fully in the conclusions reached in the opinion prepared by Mr. Justice Grace, for the reasons stated in that part of his opinion covered by paragraph % of the syllabus. I am not prepared, however, to say that the use of the word “whereabouts,” instead of the word “residence,” in an affidavit *516for publication of a summons, renders void such affidavit and a judgment based upon service made thereunder, and I express no opinion upon that question.
In connection with what is said by Mr. Justice Grace with respect to § 8725, Comp. Laws 1913, it may be observed that the policy of allowing exemptions to heads of families while living, and to a surviving wife, husband, or minor children was in force even before statehood. See §§ 322-334, Code Civ. Proe. 1877; § 135, Probate Code 1877. The desirability of enacting “wholesome laws exempting from forced sale to all heads of families a homestead, . . . and a reasonable amount of personal property,” was recognized and declared by the framers of our state Constitution. N. D. Const. § 208. The constitutional policy thus declared was carried out by appropriate enactments by the legislature. Comp. Laws 1913, §§ 5605, 5623, 7729-7742. It will be noted that both the homestead and personal property exemptions thus allowed to heads of families are distinctly limited to residents of the state. These exemptions, while allowed to and claimed by the heads of families, are intended primarily for the benefit of the families. Calmer v. Calmer, 15 N. D. 120, 127, 106 N. W. 684. And in event the head of the family fails to claim the exemption it may be claimed by his wife or by a child over the age of sixteen years. Comp. Laws 1913, § 7736. At the time § 8725, Comp. Laws 1913, was enacted, it allowed to the surviving husband, wife, or minor children the same additional exemptions as those then allowed to the head of the family during his lifetime. This section in its original form came before this court for construction in the early history of the state in the case of Fore v. Fore, 2 N. D. 260, 50 N. W. 712. And while the specific question here presented was not there involved, the entire opinion and reasoning adopted by the court therein is clearly to the effect that this is an exemption statute. This is, also, true of the decision in Woods v. Teeson, 31 N. D. 610, 154 N. W. 797. And statutes of this character have generally been classed as exemption laws by courts and legal writers. 18 Cyc. 1401. In construing a somewhat similar statute, the supreme court of Mississippi said that it “must be held to he a part of our exemption laws, and applicable only to persons residing within our borders.” Barber v. Ellis, 68 Miss. 172, 8 So. 390. The supreme court of Pennsylvania held that a statute allowing widow’s exemptions *517does not apply to a widow who, upon the emigration of her husband to this country, five years before his death, had remained behind, and had never joined him in this country although she had promised to do so. Spier’s Appeal, 26 Pa. 233. See also Medley v. Dunlap, 90 N. C. 527.
In the case at bar plaintiff, in her petition to the county court, claimed' both a homestead exemption and the exemption allowed by '§ 8725, supra. The county court disallowed both claims, and an appeal was taken to the district court, which affirmed the order appealed from. Plaintiff did not appeal from the disallowance of the homestead exemption, and has apparently abandoned all claim thereto.
Section 8725 is part of article 3 of chapter 6 of the 1913 Probate Code. The first two sections of the article relate to the homestead exemption. Section 8723 provides that “upon the death of either husband or wife the survivor . . . may continue to possess and occupy the whole homestead, and upon the death of both husband and wife the children may continue to possess and occupy the same until otherwise disposed of according to law.” Section 8724 provides for setting apart of the homestead. The first words of § 8725 (the one involved in this proceeding) are as follows: “There shall also be set apart absolutely to the surviving widow,” etc. The word “also” in this section clearly refers to the preceding sections, and means that the personal property exemption therein mentioned shall he “in addition to”’ the homestead exemption provided for in the preceding sections. Hill v. Terrell, 123 Ga. 49, 51 S. E. 86; Loring v. Hayes, 86 Me. 351, 29 Atl. 1098; Mace v. Mace, 95 Me. 283, 49 Atl. 1038.
It seems to me that the legislature intended that the personal, property exemption provided for in the last section should be allowed only to such person or persons as might, under the preceding sections, claim and receive the homestead exemption.
The exemption allowed to heads of families is distinctly limited to residents of this state. Comp. Laws 1913, §§ 5623, 7742. The homestead exemption can attach only to such property as constituted decedent’s homestead at the time of his death. Calmer v. Calmer, 15 N. D. 120, 125, 106 N. W. 684. If the decedent is not entitled to claim a homestead exemption at the time of his death, no homestead estate survives or descends. Holcomb v. Holcomb, 18 N. D. 561, 120 N. W. 547, 21 Ann. Cas. 1145. The immunity given to heads of *518families is founded upon the idea that the exempt property is necessary to support the debtor and his family. It is not intended exclusively for the benefit of the owner of the property, but mainly for the benefit of tbe family for which he provides. 18 Cyc. 1374; Calmer v. Calmer, 15 N. D. 120, 122, 106 N. W. 684.
The purpose of the legislature in the enactment of the section here under consideration and the preceding sections was to continue the exemption for the benefit of the family after the death of the owner. Fore v. Fore, 2 N. D. 260, 263, 267, 50 N. W. 712; Calmer v. Calmer, 15 N. D. 120, 127, 106 N. W. 684. And in order to provide for all cases the language was made broad enough to include not only the usual cases in which the property belongs to the husband, but also the more or less unusual cases where the property belongs to the wife.
If it is true, as contended by respondent’s counsel and by the minority members of this court, that § 8725 is not an exemption statute, but a statute of distribution, then manifestly its provisions would apply to all estates, those of nonresidents as well as of residents. If the contention of the respondent and the minority members is correct, then the plaintiff would have been entitled to claim and receive the exemption now claimed, even though she and the deceased had both been residents of Austria, and even though neither of them had ever been within the United States of America. Such construction, it seems to me, is not in accord with the legislative intent, and applies the statute for a purpose never intended.
While it has been said to be “apparent that the legislature, in making the provision, were contemplating the ordinary case where the parties to the marriage relation have lived together till death severed the tie, and where the widow remains in charge of the family of the deceased” (Kersey v. Bailey, 52 Me. 200), the courts have generally held that a deserted wife is entitled to claim the exemption in the state where her husband has maintained his residence, even though she has not been an actual resident of the state. These cases are based upon and give effect to the presumption that the marriage relation continued, and that the domicil of the husband is, also, the domicil of the wife. The presumption of continuance of marriage relation and identity of domicil of husband and wife cannot prevail, however, when the facts are shown to be to the contrary. Comp. Laws 1913, § 14; McGrew v. Mutual *519L. Ins. Co. 132 Cal. 85, 84 Am. St. Rep. 27, 64 Pac. 103. This is not .a case where the husband surreptitiously deserted and abandoned his -family which the wife has continued to maintain and support; in effect maintaining the family relation and bearing the burdens incident thereto. Nor is it shown that she has been prevented from residing with her husband by reason of his wrongful or illegal acts. The evidence here shows that the plaintiff owned some land in Austria-ITungary; that she and her husband separated and lived apart for some time before he ■emigrated to this country; that a divorce could not be had under the laws of Austria-Hungary under the existing circumstances; that when the deceased left Austria-Hungary and came to this country the plaintiff had no desire or intent to accompany him or to follow him at any time afterwards. So far as the family relation was concerned it was for all intents and purposes actually and finally terminated, and neither party .apparently had the slightest intent of ever resuming it.
Under these circumstances I do not believe that the plaintiff is ■entitled to claim or receive the benefits conferred by § 8725, supra. Tn my opinion the legislature intended that this section should apply ■only to the estates of decedents who were residents of this state, and that its benefits should accrue only to those who were either actual residents, ■or those who within the contemplation of the law may be deemed to be ■such.