(concurring and dissenting) :
I concur in the first of the decision by Mr. Acting Associate Justice Greene, but do not agree with his disposition of the exceptions relating to the allowance of personal and real property homestead exemptions to the sons of the testator against the judgment of the appellant recovered against them as executors.
The case is most unusual in that the contention is that this judgment creditor in the role of housekeeper was a member of the family of testator on account of which it is sought to establish the exemptions. Of course, she does not so contend; on the contrary she contests the propriety of the allowance of the exemptions. Other efforts by her to collect her judgment are disclosed by reference to the report of the case of Burnett v. Snoddy et al., 199 S. C., 399, 19 S. E. (2d), 904.
The only other member of the alleged family of the testator, long a widower, was his adult son, Harry Snoddy, who, however, died intestate a bachelor in September, 1938, without having claimed homestead, and left surviving him as his sole heirs his two brothers, executors of their father’s will and respondents in this proceeding.
*22It was only after the sale of a tract of land of the ancestor of 135 acres for $2,000.00, in aid of the personal assets, that respondents by an additional petition sought the allowance of homestead exemptions, which were allowed by the Circuit Court and from which this portion of this appeal was taken. The tract of 135 acres was land other‘than the actual family homestead and passed under the residuary clause of the will to the three sons in equal shares. In addition to some city property, the testator had owned other larger tracts of farm land, fairly inferable from the record to be of much greater value, which he devised specifically by the terms of his will but after the execution of it, conveyed them, respectively, to his sons by deeds in fee conditional. See again Burnett v. Snoddy et al., supra.
It seems plain to me that the respondents who were adults living separate and apart from their father at the time of his death, with long-established homes of their own, are not entitled to homestead exemptions against the debts of their father. The statute is quite clear, Section 9088 of the Code of 1932 reads as follows: "If the husband be dead, the widow and children; if the father and mother be dead (as here — interpolated), the children living on the homestead, whether any or all such children be minors or not, shall be entitled to have the family homestead exempted in like manner as if the husband or parents were living; * * (Emphasis added.)
The discussion by this Court of the whole subject in Dorn v. Stidham, 139 S. C., 66, 137 S. E., 331, is very complete and enlightening, and I think the decision is controlling of this controversy. The contention there was clearly stated at page 75 of the South Carolina Report, at page 334 of 137 S. E., "that testatrix was up to the time of her death entitled to assert the right to homestead exemption in her property, and that at her death that right immediately vested unimpaired in her devisees, who succeeded to the title to said property under the terms of the will, free of all liens *23and incumbrances, up to the value of the homestead exemption which testatrix had in said property up to the time of her death.” But it was denied.
It was said at the bottom of page 84 and the top of page 85 of 139 S. C., at page 337 of 137 S. E.: “But if such distributees (here devisees) do not come within the favored class, ‘the charmed circle/ they may not invoke the homestead exemption, for the reason that the homestead law gives to them no right to do so.” In this case the respondents are not within the “charmed circle” created by Section 9088, supra, for they were not “children living on the homestead.”
And it was further said at page 93 of 139' S. C., at page 340 of 137 S. E.: “The right to claim homestead is a personal right, in- the first instance given by the Constitution to the head of a family residing in this state. At his death, the right dies with him, unless he leaves a widow or children, in which case the right is continued by statute to them, and to no others. They and they only can assert it.” (Emphasis added.) Attention is again Called to the fact that the statute (Code, Section 9088) does not continue the right in this case to respondents. It cannot be successfully contended that they succeeded to any homestead right of their deceased brother in the property of their testator (if it be conceded that he had such) for there existed no family relation between them except that of blood.
The concluding words of the opinion, found on page 94 of 139 S. C., on page 341 of 137 S. E-, are, I think, forcibly applicable to the present problem, as follows: “Death terminates the right to homestead exemption in the head of the family, whether he die testate or intestate. That right having terminated, if there be no widow or child in whom the right is continued by the homestead laws, the statute making the property of such decedent liable for the payment of his debts becomes operative. There is no longer any staying hand of the Constitution; no longer any obstacle to a judgment becoming a lien thereon; no longer *24any questions of homestead rights or exemptions — for gone are such.”
The authorities cited in the opinion of Justice Greene and others submitted in respondents’ brief have been carefully considered, but I do not think that the views herein advanced are in conflict with any of them. The facts of all of them are different and need not be reviewed.
Thus I think that the exceptions relating to the question of the homestead exemptions, both real and personal, should be sustained and the judgment appealed from should be reversed to that extent.
Mr. Chief Justice Bonham and Messrs. Associate Justices Baker and Fishburne concur.