(dissenting).
I am not able to concur in either” the reasoning or conclusion of the majority opinion. I make no contention with the rule announced as to the merger of estates generally. I do not, however, think it of vital importance in this case. I regard the • question involved as a purely statutory one. The homestead right, even though it may be regarded as an estate in legal contemplation, is of that *105peculiar kind which exists rather as incidental to, than independent of, other estates. An estate in fee for life or for years may be invested with a homestead character by the manner of its use, and the homestead character is lost when the use is abandoned, although the estate to which it attached continues. While the homestead right obtains, the law treats the entire estate vested, in the head of the family as the homestead, and protects it in all respect from judicial sale. This protection extends to the legal title. By Code, section 1988, it is provided: “Where there is no special declaration to the contrary, the homestead of every family, whether owned by the husband or wife, is exempt from judicial sale.” This exemption, as I have said, extends to the entire estate of the head of a family to whom the homestead right is given. The statute does .not exempt from such a sale the mere right of homestead occupancy, but the homestead. No one would contend for a different rule in the ordinary case of homestead occupancy. The true import of the majority opinion will best be seen and understood by extending' the rule of it so that the consequences will be more apparent; and it is from such a standpoint that we may properly consider it. Let us suppose that Strong had left but the one child, so that, instead of one seventh, it would have taken the entire title to the homestead. Upon the death of that child the title and homestead right would have vested in the wife or widow. By the rule of the majority opinion, the homestead, except the mere right of occupancy, could be sold at judicial sale. It could not have been done when the homestead right and title united in the husband, because of the statute exempting the homestead from judicial sale. Why not exempt it when such title and right unite in the wife? If we abide by the statute, we must hold it exempt from such sale, unless there is a “special declaration to the contrary.” *106The statute contains some such declarations as that homesteads may be sold for debts contracted prior to the purchase thereof. Code, section 1992. But such a sale is of the homestead, and not of the mere legal title. It is also specially provided that homesteads may be sold for debts created by written contract, etc. Id., section 1993. Nowhere do I find a declaration of the statute that the fee title may be sold at judicial sale where it is owned by the husband or wife having a homestead right therein that is protected. The title to this land has at all times been protected from judicial sale because of the homestead right in the head of the family. It was thus protected, while in the daughter, as to antecedent debts, and comes to the wife unaffected by any attaching interests. Had the title passed with the homestead right directly from the husband to the wife by devise or by operation of law, I do-not think there would be a doubt that the homestead, would be protected to her as the head of a family, as-it was in him. The only distinction is that in this case-the course of the legal title has been less direct,.but not in a way to induce different consequences. I think that the title in the wife should be protected.