Dissenting. — At no time has the homestead been absolutely exempt from execution *80under any law enacted in this state. On the contrary, in all the legislation on that subject the land itself could be sold on execution after an appraisal thereof, the appraised value being the upset price at the sale. The statute interposed some obstacles to the sale of a homestead on execution, but none of them is insurmountable. Hence the homestead is not property exempt from execution within the meaning of Section 1234, Or. L., to be set apart to the widow as her property.
Even under the original statute, it was provided that the homestead should “descend” which clearly takes it out of the operation of Section 1234 after the death of the owner and puts it within the purview of the general'statute of descents.
This is the doctrine taught in Mansfield v. Hill, 56 Or. 400 (107 Pac. 471, 108 Pac. 1007). That case has never been overruled. It is a well-reasoned construction of the provision that the homestead shall descend. The decision is as much a rule of property as any other and in case of conflict among the precedents it is the duty of the court to decide between them and announce the true rule.
It is illogical to say in one breath that “descend” must be disregarded in the original statute and in the next give it the effect in the new enactment to pass the homestead to the children to the exclusion of the surviving spouse.
For these reasons I dissent from the conclusion reached in the opinion of Mr. Justice Rakd.