delivered the opinion of the court on a motion for a rehearing.
We have given the appellant’s motion for a rehearing the most careful attention which the -time at our disposal will permit. We have considered with care the suggestions contained in the brief which his counsel has filed in .support of the motion — a brief highly creditable to his learning and diligence. The result of our reflections is, that we are brought back to the opinion of the court already pronounced, and to that opinion we must adhere.
The position of the learned counsel is, that the defendant only took the homestead right which his father had ; that this right to use and occupy the premises as against the claims of his (the father’s) creditors; that, as the father died without debts, the infant cannot claim as against his co-tenant (the mother) any homestead right through his father; that, even if any right of homestead descended to the defendant in this case, he has lost it by abandonment; and, finally, that the homestead exemption is a right, and not an estate, but that the land subject to this exemption is *404subject to the laws of dower, descent, partition, and sale, and that, therefore, a sale may be made subject to the conditional homestead right without interfering with that right. The learned counsel also contends that a homestead exemption cannot be claimed by a tenant in common in his undivided interest, because a homestead cannot be designated, or set apart out of estates in common.
We do not assent to these propositions at all. We do not agree that the child’s right of homestead depends upon the fact that the father died leaving debts. The head of a poor family may die without debts, and the family homestead may be all that he leaves to them. This asylum is just as necessary to them under such circumstances as it would be if he died leaving debts. Their right to it cannot be made to depend upon the contingency of his being indebted, since they are under no obligation to pay his debts. His debts are not their debts ; they are a charge upon the ¡property subject to the right of homestead, but if they do not exist, the right of homestead will none the less exist.. It is just as important that this shelter should be secured to the widow and minor children against her creditors, as against the husband’s creditors.
The proposition that the infant defendant has lost his homestead right by the act of his mother and step-father in abandoning the physical possession of the home place, is a point which is fully considered in the opinion already delivered, and which we need not reargue. In the light of the statute, such a position is wholly untenable. The statute secures to this lad his homestead, notwithstanding both father and mother may die, until he arrives at the age of twenty-one years. Of what value is this right to him, — of what substance is it, — how can it be called a right at all, — if it can be destroyed by the act of the mother, nay, by the act of a step-father, in taking him from it. A poor widow may be reduced to circumstances so necessitous as to be obliged to rent out the family homestead and retire *405to some cheap tenement in order to live. Shall her very poverty be turned against her and her children as a sword to destroy a benefaction which the law has given them as a shield against such poverty ? The courts do not countenance such a doctrine. The tendency of the courts is, to construe statutes of homesteads so as to dispense altogether with the conditions of occupancy in the case of orphan children. Phipps v. Acton, 12 Bush, 375; Evans v. Evans, 5 Reporter, 499; Johnson v. Gaylord, 41 Iowa, 366; Johnston v. Turner, 29 Ark. 280; Booth v. Goodwin, 29 Ark. 633.
The learned counsel also insists — and this seems to be a necessary link in his chain of argument — that the interest which passes to the widow and children on the death of the father, in the family homestead, is a right and not an estate, and, as appears from the propositions already alluded to, he would have us hold that this right is a mere immunity against the creditors of the deceased husband and father in case he died leaving debts.
There might be force in this argument if the statute did not call it an estate. This section of the Revised Statutes under consideration (sect. 2693) calls it “the estate of homestead thus continued.” It also speaks of its “ vesting” in the widow and children. It is thus clearly a vested estate, and not a mere negative immunity from disturbance by the deceased father’s creditors in case he should have died leaving creditors. Now, if the homestead exists at all, it is an entire thing. It cannot be split up into aliquot parts and the possession divided. The widow cannot have a part as a homstead and a minor child another part as a homestead ; nor can a minor child have a part as a homestead, while the widow’s assignee is let into another part. The statute contemplates no such absurdity. But this would be the result in the present case if the plaintiff could have partition according to the prayer of his petition.
*406The learned counsel nevertheless argues that, supposing that a right of homestead exists in an estate, that is to sajs we suppose, in the reversion, this reversion may be sold for partition, leaving untouched the right of homestead, and without interfering with this right. The answer to this is, that the statute of partition does not contemplate the partition of reversionary interests. A sale for partitition in this case would be of no advantage whatever to the plaintiff; since he could sell nothing under the decree for partition which he cannot sell without such a decree. He is the owner of an undivided half of these premises subject to the homestead right of the defendant. He can sell this whenever he can find a purchaser. This, we think, sufficiently appears from the doctrine of Freund v. McCall (73 Mo. 344); and this is all the law can do for him. Neither would actual partition do him any good ; for he could not enter into possession of the share allotted to him, till the termination of the homestead estate. As he could derive no benefit at present, either from a partition or from a sale for partition, it is not right that he should burden his co-tenant with the costs and expenses of a proceeding for partition. And on this ground it is held that a reversioner cannot maintain an action for partition unless he has also a present interest. Striker v. Mott, 2 Paige Ch. 387; s c. 22 Am. Dec. 646; Wood v. Clute, 1 Sandf. Ch. 204; Striker v. Mott, 28 N. Y. 90.
There is nothing in the last point, that the defendant has no homestead right because his interest in the property is that of a tenant in common with his mother. This doctrine, if admitted, would repeal the statute continuing the homestead to the widow and orphans; since, in all cases where there are children, the fee descends to several persons.
The motion for rehearing is denied, with the concurrence of all the judges.