(dissenting). Section 8725 of the Compiled Laws of 1913 is an exemption statute, designed to protect the surviving wife or husband or minor children. The property described under said section is not part of the estate, and is not to be considered part of the estate further than is necessary to do the one act of setting it aside as exempt. The property is in no way subject to the payment of debts, with the single exception of the charges of the last sickness and funeral, and then only when there are no other assets available for the payment of such charges. Under such section it is the mandatory duty of the court, upon the inventory being filed and appraisement had of the property, to set aside such exemption. No order of the court can affect this property except for the purpose of setting it aside in compliance with the mandatory duty of the court in that regard. The person or persons for whose benefit such exemption is provided in such section have an absolute right to such property, and coupled with this is the mandatory duty of tbe court to set such property aside. It is the general rule that orders and judgments of the county court not appealed from within the time required by law are conclusive until some action is brought to set them aside, or in some way vacate them. That rule does not apply in this case for the reason that the exemption can be considered no part of the estate in the sense that- it is subject to any liabilities other than we have named, and hence, the orders, judgments, or decrees in this case not appealed from, cannot and do not affect this exemption. The person or persons entitled to such exemptions are not to be denied them simply because the court inadvertently neglected to perform its plain mandatory duty under said section.
I agree with Justice Birdzell, as expressed in his concurring opinion, that the purpose of the statute is to protect the beneficiary from the con*178tingencies incident to a sudden deprivation of reasonable means for securing the necessaries of life; and where such policy is clearly evidenced by the legislature it is the duty of the courts to see that the legislative purpose is not thwarted or defeated, even by the previous private contracts of the immediate beneficiary. I also agree with him as to the law that contracts involving a waiver of the benefits of exemption statutes are generally held to be void. This only more clearly shows the care which courts ordinarily use, and the great length to which they go in protecting the exemption. There is also another reason for the exemption, and that is that the surviving wife, husband, or children may not become dependents of the state, and thereby become a public burden. The $1,500 which is allowed to be set aside is not intended to be alone for the surviving husband or wife, although it may be set aside to them. It is intended for the protection and support as well of the children, if any. So, also are the additional amounts which may be set aside for the support of the surviving husband, wife, or children, as provided by law.
We are firmly convinced that the conclusion of the majority of the court as expressed in their opinion is not in harmony with the spirit of the exemption law.