(dissenting) : The constitution give's the homestead exemption, prescribes the conditions upon which it may be enjoyed, including its extent and duration, and the right thus given may be increased but can not be diminished by any statute. Under the constitution it is occupancy as a residence by the family of the owner that impresses the premises with the homestead character. The property in question was occupied as a homestead when Jeremiah H. Towle died, and it has been occupied by his widow ever since that time. It is conceded that it was exempt to her for some time after his death. When did it lose its homestead character? That must be ascertained from the constitutional provision, and the only limitation found in it which operates to terminate the homestead right is the implied one of nonoccupancy. The home is exempt' so long as it is occupied by the family of the owner. It is not only exempt from forced sale for debt,, but it is also exempt under any process of law on every account, except for taxes, for purchase money and for-cost of improvements. The exceptions to the exemption are particularly stated, and none is found there providing that the homestead may be sold in order tcv give children the shares which they may have inherited, nor is therz; anything in the provision indicating that the homestead right terminates, when the children reach majority. Besides, the necessity for the protection which the homestead was designed to give ordinarily increases as the widow grows older. Several of the earlier cases are cited to show that distribution may be made after the widow marries or the children arrive at the age of-majority, but it is worthy of note that those cases, without exception, only gave attention to the interpretation of the statutes touching that ques*691tion. None of them involved the scope of the constitutional provision nor the question whether there was a conflict between the constitution and the statutes. This question, however, was considered in Cross v. Benson, 68 Kan. 495, where the owner of the homestead died leaving a widow but no children, and where it was held that the widow constituted the family of the owner and that the exemption continued in her so long as she occupied it. An. appeal was there made to the effect of the statute of descents and distributions, but the court answered by saying:
“The statute of descents and distributions can shed no light upon the subject. The constitution creates the homestead. This court is the final interpreter of that instrument, and no legislative misconception of its scope, if any such should become manifest, can be permitted to diminish the field' of its operation.” (Page 504.)
In another part of the opinion it was said:
“A consideration of the origin and purpose of the homestead right and of its establishment in the constitution of this state will show that the provisions made in that document were intended to be complete, and that all legislative action in attaining the desired end was intended to be dispensed with.” (Page 500.)
Further along in the opinion reference was made to the purpose of the homestead exemption as well as the limitations and duration of the homestead right, and it was said:
“But the saving of a home to the family free from alienation, without joint consent, and beyond the reach of process of the law, was of overshadowing importance. Therefore, while section 6 directs the legislature to provide for the protection of the rights of women in acquiring and possessing property, real, personal and mixed, separate and apart from their husbands, section 9 itself creates, limits and defines the homestead right.” (Page 501.)
*692As to the effect of the statute upon the constitutional provision it was further said:
“Upon the matter of homestead not only is legislative aid dispensed with, but legislative interference is foreclosed. Without any statute upon the subject, no forced sale of any homestead occupied in the manner prescribed could be lawful, and no conditions may be imposed by statute upon the enjoyment of the right.” (Page 502.)
Since the constitutional provision is complete in itself, and the homestead right conferred by it can not be restricted by statute, we must look to the constitution alone to find limitations on the enjoyment of the right. The limitations on the duration of the homestead right prescribed by the statute of descents and distributions are not found in the constitution. Under the constitutional provision the surviving widow is deemed to be the family of the owner, and so long as ;she remains in that position and continues to reside in the home the homestead right continues. If she vacates the home it loses its homéstead character, but so far as the constitution is concerned the right persists so long as the widow’s occupancy continues. The doctrine of Cross v. Benson was reaffirmed and extended in Weaver v. Bank, 76 Kan. 540, where it was held that when the homestead right has once attached it may persist in the surviving husband or wife alone, without regard to which spouse holds the legal title to the property or the time when the indebtedness to pay which it was sought to be' sold was incurred. There seems to be a contention that the constitutional provision was liberally interpreted in the Cross v. Benson and Weaver v. Bank cases because the attacks on the homestead rights were made by creditors, but that provision makes no distinction between creditors and other claimants, nor does it make any distinction between sales on execution and other judicial sales. The provision is that the homestead “shall be exempted from forced sale under *693any process of law.” (Const. art. 15, § 9.) Compulsory partition contemplates not only the breaking up of the homestead, but in cases of partition the code specifically provides for the sale of the property if division can not be made. We all know that it is impractical to divide an ordinary city homestead, and many of the country homesteads are incapable of equitable division. Suppose a widow occupies a cottage built on a city lot twenty-five feet wide, which she has inherited in common with a number of children who have arrived at majority, and some of them bring a proceeding in partition : there can be no division except by means of a sale, and a sale to which she objects is certainly a forced sale. It will not do to limit the meaning of a forced sale to one on execution, because the constitution specifically exempts the homestead from any forced sale under any process of law. No broader language could have been employed, and it is certainly broad enough to include any judicial sale. Besides, the partition statute itself provides that the property shall be sold “in the same manner as in sales of real estate on execution.” (Civ. Code, § 626; Gen. Stat. 1901, § 5113.) Ai order of sale in a partition proceeding is, in a sense, a special execution, and is as much within the prohibition of the constitution as an execution sale based on a creditor’s judgment. In my opinion the homestead right remains in Mrs. Towle notwithstanding the children have reached majority, and she can not be disturbed in that right as long as she continues to occupy the property as a homestead. While a portion of the land was inherited by the children, it descended to them subject to the homestead interest. As was said in Barbe v. Hyatt, 50 Kan. 86, “so long as it retains its homestead character it can not be sold to pay ordinary debts, nor can there be a compulsory division and distribution. (Page 89.)
I am authorized to say that Mr. Justice Benson concurs in this dissent.