In January, 1920, Mary E. Leet died in Multnomah County, leaving a last will and testament dated in 1916. At the time of her death she was residing with the petitioner, her husband, on a lot in Portland, Oregon, upon which there is a small dwelling-house, the value of the property being approximately $2,000. It was purchased in 1918 with the money of the decedent, and title was taken in her name. The petitioner has no family, there having been no issue of the marriage between himself and the decedent. She had children by a former marriage, all of whom have passed the age of majority. Her will, which was duly admitted to probate and upon which her estate was settled, contained the following provisions:
“Whereas, my husband, Oliver E. Leet, is possessed of a sufficient amount of money and property to keep him in comfort during the remainder of his life time,
“And whereas, most of my property consists of money and property which were left to me by my *42parents and my former husband, father of my children,
“ Therefore, I give and bequeath unto my husband, Oliver E. Leet, the sum of ten ($10.00) dollars, — ■ subject to any rights which my said husband may have as tenant by curtesy, under the laws of the state of Oregon.
“I hereby give and devise unto my said children, John J. Clark, Bertha Gr. Barr and Eula M. Newell, all of the real estate of every name and nature owned by me at the time of my death, to share and share alike. ’ ’
It appears that the petitioner has received and retains the ten dollar legacy given him by the will, and that shortly after the death of the testatrix he removed from the premises in question, placed tenants thereon and for some months collected the rents, retaining half thereof and accounting to the administratrix for the other half, apparently in the enjoyment of his estate by the curtesy. Early in February, 1921, he returned to the dwelling and continued to occupy one room thereof, his tenants being in possession of the remainder of the house. He took his meals elsewhere. He filed his petition to have the property set aside as a homestead to belong to him as his own realty. This was opposed by the personal representative of the decedent, and his petition was denied; hence his appeal.
The cases of Wycoff v. Snapp, 72 Or. 234 (143 Pac. 902), and In re Frizzell’s Estate, 95 Or. 681 (188 Pac. 707), decided in Department No. 2 of this court, are relied upon by the petitioner as conclusive of this case. Those cases were decided under the original homestead law appearing in Sections 221-226, L. O. L. Involved- in those cases was Section 226, L. O. L., reading thus:
*43“The homestead aforesaid shall be exempt from sale on any judicial process after the death of the person entitled thereto for the collection of any debts for which the same could not have been sold during his lifetime, but such homestead shall descend as if death did not exist.”
In Mansfield v. Hill, 56 Or. 400 (107 Pac. 471, 108 Pac. 1007), the court rightfully deeming the statute unintelligible by the employment of the word “death” where the same last occurs in the above excerpt, in effect edited the section so as to substitute “exemption” in place of “death,” making the rule by that process to be that “such homestead shall descend as if exemption did not exist.” The two cases first mentioned turn upon the application of Section 1234, L. O. L., prescribing that “upon the filing of the inventory, the court or judge thereof shall make an order, setting apart, for the widow or minor children of the deceased, if any, all the property of the estate by law exempt from. execution. The property thus set apart, if there be a widow, is her property, to be used or expended by her in the maintenance of herself and minor children, if any.” The essence of the two decisions is, that property which might have been claimed by the owner as a homestead is exempt from execution and hence within the purview of Section 1234, L. O. L., giving it absolutely as her property to the widow.
The homestead statute, however, has since been amended and after several sections respecting the definition of homestead and the manner of setting it aside, has two Sections, 225 and 226, Or. L., here quoted in full:
“When the owner of any homestead shall die, not having lawfully devised, the same, such homestead shall descend free of all judgments and claims against *44such deceased owner or his homestead estate, except mortgages lawfully executed thereon and laborers’ and mechanics ’ liens, to the person and in the manner provided by law; provided, however, that such exemption shall not extend to any person other than a child, grandchild, widow or husband, and father or mother of the deceased owner; and provided further, such homestead shall be subject to and charged' with the expenses of his last sickness and for his funeral and the costs and charges of administration.” Section 225.
“When any homestead shall have been disposed of by the last will and testament of the owner thereof, the devisee shall take the same free of all judgments and claims against the testator of [or] his homestead estate, except mortgages lawfully executed thereon and laborers’ and mechanics’ liens; provided, however, that such exemption shall not extend to any devisee other than a child, grandchild, widow or husband, and father or mother of the testator; and provided further, such homestead shall be subject to and charged with the expenses of his last sickness and of his funeral and the costs and charges of probate.” Section 226.
Under these two sections it is clear that the legislature has recognized the right of the owner of a homestead to dispose of the same by will, and that if he does not devise it, it “shall descend free of all judgments and claims against the owner or his estate * * to the person and in the manner provided by law.” It is well to inquire into the nature of the right given by Section 1234, Or. L., awarding to the surviving spouse the property exempt from execution. In re James’ Estate, 38 S. D. 107 (160 N. W. 525), decided that Section 154 of the South Dakota Probate Code, which corresponds in substance to our Section 1234, Or. L., is not a statute of succession. The court there said:
*45“The allowance therein provided for is not in the nature of an interest in property. It is merely a preferred claim against the estate of a decedent which may or may not he available according to the circumstances.”
In Wilson v. Wilson, 55 Colo. 70 (132 Pac. 67), the principle is thus laid down:
“Under all the decisions of the courts which we have been able to find, a widow’s allowance is not in the nature of an interest in an estate; it is not something which goes to the widow by descent. It is a preferred claim against the estate. * * This allowance is no part of the distributive share of the estate, but is rather, in a very just and proper sense, a charge or claim against the estate. It is, indeed, nothing more or less than a part of the costs of administration. ’ ’
Even dower and curtesy are not such estates as “descend.” They originate by operation of law at the time the matrimonial alliance upon which they depend is formed, and the death of either spouse merely works out the consummation of the estate already initiated. The Supreme Court of Utah, deciding In re Bullen’s Estate, 47 Utah, 96 (151 Pac. 533, L. R. A. 1916C, 670), considered the subject of the nature of an estate in dower as affected by the inheritance tax law, and said:
“What the wife receives under Section 2826 — one third in fee simple of all the legal and equitable estate in real property possessed by the-husband during coverture, and not relinquished by her — she receives, not as an heir of her husband, "but in her own right, something which belongs to her absolutely, and of which she could not have been deprived by will or by any other voluntary act of her husband without her consent. Under that section, she is not an heir within the meaning of our intestate or succession statutes” Citing authorities, statutes:” Citing authorities.
*46It is true, the court was there considering whether or not the dower estate was subject to an inheritance tax under the Utah statute, and it is likewise a fact that our inheritance tax law specifically includes all property “which shall pass or vest by dower, curtesy, will or by statutes or inheritance ’ ’: Or. L., § 1191. The case is cited here for the purpose of showing that dower and curtesy are estates which do not come within the operation of the law of descents. The claim contemplated by Section 1234, Or. L., does not possess the dignity of an estate, for it depends partly at least upon demand of parties and action of the court thereon and does not arise purely by operation of law. It is not in the category of the statute of descents.
The cases cited in the various text-books to support the doctrine that the owner of a homestead cannot devise it away from his family, are founded on statutes unlike ours. For instance, the California statute embodied in Section 1465 of Deering’s California Code of Civil Procedure specifically includes the homestead in so many words as property which must be set aside for the use of the surviving husband or wife. See also In re Kennedy’s Estate, 157 Cal. 517 (108 Pac. 280, 29 L. R. A. (N. S.) 428), to the effect that under the California statute corresponding to Section 1234, Or. L., the widow does not take the allowance provided by the enactment by descent or by will, although the property included may have been devised to her or she may be the sole heir of the decedent. In other words, the section is not a statute of descents. In Alabama, as taught by Miller v. Marx, 55 Ala. 322, the statute expressly says that “the homestead is exempt from administration.” And in Minnesota the statute directly gives *47the surviving spouse a life estate in the homestead: Eaton v. Robbins, 29 Minn. 327 (13 N. W. 143). In Missouri the statute gives a homestead to the widow and children and directly excepts it from the operation of other laws: Rockhey v. Rockhey, 97 Mo. 76 (11 S. W. 225). The Tennessee Constitution says that the homestead shall inure to the benefit of the widow and children: Mason v. Jackson (Tenn.), 57 S. W. 217; Macrea v. Macrea (Tenn.), 57 S. W. 423. And in Texas the Constitution causes the homestead to descend subject to occupancy by minor children: Hall v. Fields, 81 Tex. 553 (17 S. W. 82). Other statutes of the hind are noted and distinguished from our own in the opinion of Mr. Justice Eakin in Mansfield v. Hill, supra.
These statutes definitely point out what is to become of the homestead on the death of its owner. Our Section 1234, which constitutes merely a claim against the estate, does not mention homestead by name. It refers -in general terms to property exempt from execution. When we come, however, to examine the statute treating particularly of homesteads in Oregon, we find that, speaking directly about homestead in that name, it says that the homestead shall “descend free of all judgments and claims against such deceased owner or his homestead estate, * * to the person and in the manner provided by law.” And in case of a testator who devises his homestead, “the devisee shall take the same free of all judgments and claims” as before stated. This specific direction about the devolution of the homestead estate must by all rules of statutory construction prevail over the general statement about the award of property exempt from execution. It has been shown by the authorities that this constitutes a claim and comes *48within the provision of the statute that this homestead shall pass by descent or by will free of all claims. Other statutes in different states have made homestead the subject of such claim, while ours has given it direct course down the line of descent or according to the will of the testator. We cannot rightly say that it is subject to such a claim when the law explicitly says it shall “descend,” or “the devisee shall take the same free of all judgments and claims.”
In determining the signification of the term “descent” we have but to look to our own statute describing the course of descent of real property embodied in Section 10125, Or. L., saying:
“When any person shall die seized of any real property or of any right thereto, or entitled to any interest therein, in fee simple, or for the life of another, not having lawfully devised the same, such real property shall descend" subject to his debts, as follows:
“1. In equal shares to his or her children, * # ” etc.
Neither curtesy, dower, nor the claim grounded on Section 1234 comes within its operation. The legislature has said directly that instead of taking the course marked out by the statute on dower, curtesy or the claim provided for in Section 1234, the homestead shall go by descent or will. At the very least, the latest expression of the legislative assembly on that subject would constitute an exception to the general rule prescribed in Section 1234, Or. L.
By the act of the legislative assembly filed in the office of the Secretary of State February 11, 1919, Section 1234, L. O. L., was amended so as to extend its benefits not only to the widow but also to the surviving husband. The homestead law was *49amended by Chapter 112 of the Laws of 1919 by the act approved February 22d of that year. The amendatory act of the homestead law contains a section repealing the whole original homestead law and “all acts and parts of acts in conflict herewith.”
A homestead does not arise merely because it is a residence of a family. The statute prescribes a process whereby a homestead may be claimed, but ultimately it depends upon- the act of the owner claiming the right: Hansen v. Jones, 57 Or. 416 (109 Pac. 868); Mansfield v. Hill, supra. In other words, homestead itself and the enjoyment thereof are pure creatures of claim and not only so, the statute prescribes the method whereby the realty may be sold in spite of the claim, under certain conditions of making allowance for the value thereof. The consequence is, that the new homestead act of February 22, 1919, providing as it does that the homestead shall descend or the devisee shall take it free of all judgments or claims against the deceased owner or his homestead estate, excludes not only the claim of homestead but also the claim authorized by Section 1234, Or. L. This exemption, however, in the terms of the new statute does not inure to the benefit of any person other than a child, grandchild, widow or husband, and father or mother of the deceased owner, but they take by descent or as devisees. This provides a course for the devolution of realty which might have become a homestead if the owner had claimed it as against a levy upon the same. It could not be “exempt from execution,” unless such a claim was made. The property “descends” free from “all judgments and claims,” not all judgments and some claims, but all claims. This must include the claim *50necessary to the creation or enjoyment of a homestead, or at least the claim based on Section 1234.
Moreover, this is a statute later than Section 1234, enacted at the same session. It must therefore be deemed the paramount expression of the legislative will. Indeed, it says that “all acts and parts of acts in conflict herewith” are repealed. Taking the whole of the new homestead statute together and in connection with the statute of descents, it provides a rule of descent or devise by will, which must prevail over everything else which would interfere with a devise or the prescribed course of descent. The new statute asserts it in unmistakable terms and is not to be' turned from its purpose by an earlier statute which may seem on superficial examination to interfere. In brief, Section 1234 is not a statute of descents. It is merely a statute of claims and cannot control the mandate of later legislation that the homestead shall “descend.”
It is easy to paint a lugubrious word picture of a profligate father who, dying, leaves a widow and little children destitute but for the homestead which he could have claimed as exempt from payment of his debts. It is quite as apropos to contemplate an ill-advised marriage of that same widow by whose death the patrimony of those same children is diverted to a stranger, resulting in their improverishment. A sentimental imagination, however, is not a safe canon by which to construe a statute, nor should liberality of construction annul the express provisions of the law. When it says the devisee shall take free from all claims, it does not mean that he shall take subject to the claim fashioned in Section 1234 or one originating in a possible claim of homestead.
Affirmed on rehearing April 27, 1922. (206 Pac. 548.) For appellant there was a brief and oral argument by Mr. John C. Shillock. For respondent there was a brief and oral argument by Mr. John W. Kaste.These views of the writer are applicable alike to the case of Iitz v. Krieger, argued with this case. The judgment in both cases should be affirmed.
For these reasons I dissent from the opinion of Mr. Justice McCourt.