The opinion of the court was delivered by
West. J.:A rehearing was granted on the homestead question only, and for the third time this controversy has received somewhat unusual attention. (Postlethwaite v. Edson, 98 Kan. 444, 155 Pac. 802; Id. 102 Kan. 104.)
The right to will away real estate is not inherent, but is purely a creature of legislation. The legislature may give, and the legislature may take away.
“The legislature has plenary power to withhold or grant the right, and, if it grants it, may make its exercise subject to such regulations and requirements as it pleases.” (40 Cyc. 997.) , '
When this matter was attended to in this state, it was enacted that one may give and devise property by will, “subject nevertheless to the rights of creditors and to the provisions of this act.” (Gen. Stat. 1915, § 11752.) This is all the power that has ever been given. The legislature has not added, and the courts cannot add, thereto.
Section 9 of article 15 of the constitution sets apart certain property as a homestead which “shall not be alienated without *620the joint consent of the husband and wife, when that relation exists. . . .” Section 8 of the descents and distributions act (Gen. Stat. 1915, § 3831) sets apart one-half in value of the husband’s estate of which the wife has made “no conveyance.” In Comstock v. Adams, 23 Kan. 513, the sole question for consideration, as expressly stated in the opinion, was whether a will is a conveyance under the section last referred to, and after painstaking consideration the court unanimously held that it is not.
In Vining v. Willis, 40 Kan. 609, 20 Pac. 232, the point was whether a will is an alienation under the section of the constitution referred to, and after a still more elaborate discussion it was unanimously held that it is not, and Comstock v. Adams was followed with approval. In Barbe v. Hyatt, 50 Kan. 86, 31 Pac. 694, these two decisions were referred to and reaffirmed. The first of these was rendered in 1880, the second in 1889, and the third in 1892, and in all these years neither the people, the legislature, nor the courts have sought to change the rule of property thus embedded in the judicial system of this state. While loose expressions touching wills may be found, in no instance has this court decided anything to impair the force of this rule.
In Martindale v. Smith, 31 Kan. 270, 1 Pac. 569, it was said (p. 273) that when death occurs the title to the property of the person dying must be transferred to some person, that it cannot remain in the deceased, and the will simply designates where the title shall go.
In Vining v. Willis, 40 Kan. 609, 20 Pac. 232, it was said that a will never divests the owner of his property; that when the testator dies the devisee mentioned in the will takes the property by virtue of the statutes.
“It would not be the will, however, but death that would take the property from the testator; and it would be death, the statutes, and the will, all operating together, that would confer the property upon the devisee.” (p. 611.)
Also,
“It is not the will alone, however, that determines where the title shall go, for the will operating- alone would be powerless. It is the will, and death, and the statutes, operating together, that determine where the property shall go. Indeed, it is the statutes which give force and efficacy to all.” (p; 612.)
*621After going over the matter again at length it was said:
“We think it appears from the statutes and from the decisions of the supreme court, that the legislature, the governor, and the supreme c&urt,' have always been of the opinion that the aforesaid constitutional provision has nothing to do with the question as to where the title to real estate, occupied as a homestead, shall go after the death of the owner of such real estate. It is evident that it has always been their opinion that the word ‘alienated’ as used in said provision means only a passing of some estate, title or interest in the homestead from the owner during Ms lifetime, and that it has no reference whatever to where his title or interest shall go after his death. These statutes and decisions have all the force and effect of a contemporaneous exposition of the true intent and meaning of this constitutional provision.” (p. 620.)
A homestead always contemplates a place for the residence of a family, and its character as exempt property is derived only from the fact of such occupancy. In Cross v. Benson, 68 Kan. 495, 75 Pac. 558, the doctrine of family was expanded and applied to the case of a widow occupying the,homestead after the death of her husband. This was carried still further in Weaver v. Bank, 76 Kan. 540, 94 Pac. 273, holding that the homestead right may persist in the survivor without regard to which held the legal title or the time when the indebtedness to pay which it was sought, to be sold was incurred. Another modification was made in Towle v. Towle, 81 Kan. 675, 107 Pac. 228, two members of the court dissenting, wherein it was decided that a sale in partition is not a forced sale, and that distribution of the homestead may be had by the adult children while it is still occupied by the widow.
It is now argued that another enlargement should be made, and that the property in this case, not claimed to have been occupied by the present owners as a homestead, should be deemed exempt from the debt sought to be enforced against it. Of course this means a reversal of the decisions referred to and the establishment of the contrary rule. It is argued that creditors should be construed to mean those holding claims which could in the lifetime of the testator be enforced against the property. In other words, that the power to devise given by the legislature does not mean subject to the rights of creditors generally, or general creditors, which would be its natural meaning, but subject only to the rights of what might be called actual or potential lien holders, such as materialmen or those holding *622claims for the purchase price. But the same legislature which thus restricted the making of wills enacted that the homestead should not be exempt from sale for taxes, improvements, purchase price, or liens given by consent of both husband and wife. Hence, creditors other than these must have been meant when using the phrase, “subject ... to the rights of the creditors.” Of course the phrase does not mean’ creditors whose eyes could not be turned toward the homestead, for all understand a homestead to be exempt from the claims of general creditors.
The phrase “subject ... to the rights of creditors” must, according to- the act on statutory construction, be construed according to the context “and the approved usage of the language.” (Gen. Stat. 1915, § 10973, subdiv. 2.) If only actual or potential lien holders were intended there was no occasion to use this language at all, because they were already protected by the constitution and the statute as above shown. Hence, the argument that only creditors who could have looked to the homestead in the life of the intestate were intended, falls to the ground. In Monroe v. May, Weil & Co., 9 Kan. 466, Mr. Justice Brewer, in speaking of the homestead right, said:
“A man may sell his homestead, and give good title, no matter how many judgments may be standing against him.” (p. 475.)
Again,
“Nor is there anything in the transaction of which creditors can complain, or upon which they can base any equity. ... If placing the title in the wife’s name had removed-so much property from the reach of their claims, it might have given them some pretense for insisting that no more property should be thus removed. But where the homestead is alike exempt, whether in the husband’s or wife’s name, we fail to see why placing it in the wife’s name gives the creditors a right to call that a gift which the parties made a payment.” (p. 476.)'
It is quite manifest that in this discussion general creditors were the ones referred to. In Colby v. Crocker, 17 Kan. 527, the plaintiff, who had loaned the owner $800 for which he had no security, sought to require a mortgagee to first exhaust the homestead property. It was said:
“The homestead-exemption laws provide in effect that the homestead shall be exempt from all debts except for purchase-money, taxes, improvements, and liens given by the consent of both husband and wife. Now the plaintiff’s claim does not fall within any of these exceptions.” (p. 531.) .
*623He, therefore, must have been a general creditor like the plaintiff in the case before us. In La Rue v. Gilbert, 18 Kan. 220, a judgment was obtained against a homestead owner whose family continued to occupy after his death. The holder sought to require the mortgagee of the homestead and other real estate to exhaust the homestead property first. This was refused. Mr. Justice Brewer said:
“In giving a mortgage on the homestead, the debtor waives this homestead right, but only to the mortgagee, and does not thereby open the door to Other creditors, or increase their equities.” (p. 222.)
In Hixon v. George, 18 Kan. 253, in discussing the claims of creditors who questioned the right of a husband to purchase land with his own money and put it in his wife’s,name and hold it as a homestead, it was declared that—
“It would have made no difference if the title to the property had been taken in George’s name, and not in his wife’s name. In either case, the property would have been exempt from the claims of any general creditor of either George or his wife.” (p. 258.)
In Sprout v. Atchison National Bank, 22 Kan. 336, the court held:
“It is not illegal or fraudulent to hold property in a homestead exempt from the claims of general creditors; and the right of the homestead occupants to so hold such property is paramount to any right of any general creditor.” (Syl. ¶2.)
In Long Brothers v. Murphy, 27 Kan. 375, it was held that an insolvent debtor having creditors pressing for the payment of their claims could not take goods purchased upon credit ahd exchange them, for real estate, and hold it as a homestead against such existing creditors.
Henderson v. Stetter, 31 Kan. 56, 2 Pac. 849; Stratton, Adm’r, v. McCandliss, 32 Kan. 512, 4 Pac. 1018; Frick Co. v. Ketels, 42 Kan. 527, 22 Pac. 580; Loan Association v. Watson, 45 Kan. 132, 25 Pac. 586; Wilson v. Taylor, 49 Kan. 774, 31 Pac. 697; Battey v. Barker, 62 Kan. 517, 64 Pac. 79; Cross v. Benson, 68 Kan. 495, 75 Pac. 558; Hopper v. Arnold, 74 Kan. 250, 86 Pac. 469; Sawin v. Osborn, 87 Kan. 828, 126 Pac. 1074; Rose v. Bank, 95 Kan. 331, 148 Pac. 745; King v. Wilson, 95 Kan. 390, 148 Pac. 752; Milberger v. Veselsky, 97 Kan. 433, 155 Pac. 957; Scott v. Rodgers, 97 Kan. 438, 155 Pac. 961; Fredenhagen v. Nichols & Shepard Co., 99 Kan. 113, 160 Pac. *624997; and Walz v. Keller, 102 Kan. 124, 169 Pac. 196, all involved controversies between homestead claimants and general creditors, and no distinction can be found between those which did and those which did not involve wills.
In King v. Wilson, 95 Kan. 390, 148 Pac. 752, this is found:
“Was it necessary for the plaintiff to allege that the former judgment was not for an obligation contracted for the purchase of the premises, or for the erection of any improvements thereon? In suits 'for the protection of the homestead right it is not necessary to allege that the debt sought to be enforced against the property is not embraced within any of the exceptions.” (p. 393.)
In Cross v. Benson, 68 Kan. 495, the following is found:
“And since the lots in question were continually impressed with the homestead interest of Sue S. Cross in the lifetime of her husband, at the date of his 'death and during the following years until her own demise, creditors enjoyed no rights to which such lots were subject or to which the making of a will was subject.” (p. 506.)
There can be no question that in this expression general creditors were meant.
The trouble is that we have no homestead in this case— simply some real estate which ceased To be a homestead when it ceased to be occupied as such.
“The homestead interest is not an estate in land. . . . It is an exemption of land under stated conditions. If the conditions do not exist, or having once existed are at an end, the exemption ceases.” (Ellinger v. Thomas, 64 Kan. 180, 185, 67 Pac. 529.)
If the homestead had at any time been abandoned by the widow of the judgment debtor, while such judgment was kept alive, it would at once have become subject to proper process for its payment. Had the makers of the will died intestate leaving no family in possession, the property would likewise have become subject to the rights of The judgment holder. The fact that the will designated, to whom it should go is now sought to be exaggerated into a continued exemption in the hands of the devisees.
There is no potentiality in the oft used and frequently abused expression that the eye of the creditor need never be turned towards the homestead, to justify a holding that property continues to be a homestead after it ceases to be one.
But it is argued that the will and the death and the statute together vested the title in the defendants. It certainly cannot *625be said that the death conveyed any property to any one, it simply removed the present owner from this life. Indeed,, counsel himself says in his brief that “Death transfers nothing.” It was long since settled law that the will did not and could not convey or alienate the land. The statute directed that it should go according to the desire expressed in the will — but only after probate — (Gen. Stat. 1915, § 11784), and while these three insufficient causes may when combined produce the effect of a conveyance — which neither could do alone — there is nothing in the situation to give the will a potency not accorded to it by the statute.
While the eye of the creditor need never be turned toward the homestead of the debtor, this situation continues only so long as it is a homestead. The only reason possible to be advanced for having a homestead provision is the protection of the family, and when, under our recent decisions, no member of the family continues to occupy it the homestead character ipso facto ceases. When the survivor in this case departed this life, no one was left in possessipn claiming or who could claim any sort of homestead rights. The devisees took by force of the statute, which compelled them to take subject to the rights of creditors who, having kept their judgment alive, had a right to look at this property as soon as it ceased to be a homestead, which it did upon the death of the survivor.
While the testators might during their occupancy of the homestead have conveyed it away by deed, and while the creditors might not be able to show that they were in any wise defrauded thereby, this was not done. It could have been done regardless of this will or any other will that might have been drawn, but is was not done. Instead of conveying the property away, the owners and occupiers chose to exercise their rights to designate where and how it should go at their death — -only this and nothing more.
It is said that death is not an abandonment. Very well, but suppose the devisors had died simultaneously while in possession, whose homestead would it have been? It is not claimed'to be the homestead of any one now, and it is not. The theory is advanced that by somé sort of inherent efficacy the will carried over the exemption or the exempt quality of the land to the devisees. Why? Because a deed would haye *626done so, forsooth. But a deed would have evidenced a present and complete divestiture and investiture of title. A will is powerless to do this. Being a mere creature of statute, it can, at the utmost, result in designating the beneficiary, subject to the rights of the creditors of the devisor. Had this will expressly provided that it was made subject to the rights of the devisor’s creditors, it would simply have contained what the statute writes into every will as effectually as if inserted by the maker himself.
“Legatees succeed to the estate of the testator a,s beneficiaries and objects of his bounty, and have no rights or equities whatever as against creditors whose debts existed in the testator’s lifetime, and this applies even to a legacy based on a valuable consideration. It has even been considered that the creditors have a lien on property which the testator has specifically devised or bequeathed by his will.” (40 Cyc. 2060.)
The statute has not said that the owner of a homestead may not convey it away by deed. This he may do, and, unless he thereby works a fraud upon his creditors, this right is in no wise impaired, but the statute has, in effect, said that he may not will his homestead away without preserving the rights of his creditors.
There is no possible reason in justice or equity why one should prefer a relative or a stranger who already has a homestead, and who owes him nothing, to a creditor who may have furnished him the very' means of subsistence for years without return.
The answer to the contention that if a deed cannot defraud creditors a will cannot, is that the one is an inherently free act and the other a matter restricted and limited by law, whose limits cannot be passed without violating the law itself.
The point in Cross v. Benson, supra, was that, although the widow took under the will, subject to the rights of creditors, she could not be ousted of her occupancy, so long as it continued, because such occupancy was paramount to her rights as devisee. ,
When the constitution was framed and adopted the country was new and land was of small value, but 160 acres of land and the improvements thereon in many cases now amount to a fortune of many thousands of dollars. If one owning such *627a homestead now can, by being the beneficiary in the will of another homestead, hold such other property free from the debts of the testator, then it would seem, indeed, that the effect if not the object of the exemption law is not to protect the family, but to defeat debts.
The former decision and opinion are adhered to.