(dissenting). This appeal involves the construction of the veterans’ homestead exemption statute.1 The factual background is as follows:
Plaintiff-appellee Barnes is a veteran of World War II with a service-connected disability recognized by the United States Veterans’ Administration on which compensation is paid. He owns a two-fifths undivided interest in common in the residence at 1791 Burns avenue, Detroit, Michigan. The remaining three-fifths interest is owned by his co-tenant, Ruth C. Barnes, who purchased it with her separate funds. Ruth C. Barnes is plaintiff’s wife and they occupy the premises together as a homestead.-
The assessed valuation of the entire premises is $13,630, and the valuation of plaintiff-appellee’s two-fifths interest is therefore $5,452, and that of his *179wife and eotenant’s interest is $8,178. Plaintiff-appellee owns no other taxable property.
Plaintiff Barnes applied in turn to the board of assessors, the board of review and the State tax commission for separate assessment and exemption. Relief having been denied, he paid the taxes under protest and filed complaint in Wayne county circuit court against city of Detroit, its treasurer and board of assessors. Later Wayne county and its treasurer were added as defendants.
Plaintiff filed suit to require the board of assessors to (1) assess to him separately the value of his undivided interest in the real estate as tenant in common and (2) to allow him against that assessment the $2,000 exemption granted by CLS 1961, § 211.7, subd 11 (c) (Stat Ann 1961 Cum Supp § 7.7, subd 11 [c]) with respect to real estate owned and used as a homestead by a disabled veteran. He also sought judgment against the respective defendants for refund of $88.94 paid to the city and $14.27 paid to the county, those being the amounts by which the respective taxes would have been reduced had the claimed exemption been allowed against the assessment of December 31, 1962.
The cause was submitted for decision on motion of plaintiff for summary judgment and motion of defendants for dismissal. Circuit Judge John M. Wise denied the former and granted the motion to dismiss.
We do not view the issue in this case as did the Court of Appeals. We are of the opinion that the authorities cited by the appellate court are well-settled, but we believe they are inapposite to the case at bar. We are in complete accord with the statement from People, ex rel. Holbrook, v. Treasurer of Detroit, 8 Mich 14, 16 (77 Am Dec 433):
*180“An undivided interest is just as much a separate estate as a' divided one, and the law so regards it.”
However, the precise point here involves not a question of the nature of estates in land. Before Judge Wise could construe the involved subsection of the applicable statute and apply the controlling case law and the opinion of the attorney general, he, of necessity, had to make an essential primary determination from the pleadings and exhibits.
The eleventh subsection of section 7 of the general property tax act, CLS 1961, § 211.7, subd 11 (c) (Stat Ann 1961 Cum Supp § 7.7, subd 11 [c]), as amended, exempts:
“Eleventh * * * (c) All real estate to the value of $2,000 used and owned as a homestead by any soldier or sailor of the Federal government * * * and who has' a service or nonservice connected disability.” (Emphasis supplied.)
It is undisputed that plaintiff-appellee qualifies as a disabled veteran. It is undisputed that he owns an undivided two-fifths interest, in common, in the concerned realty and the residence thereon. It is hot undisputed that such undivided interest in fact falls within the statutory exemption as that exemption has-been judicially construed and interpreted by an opinion of the attorney general based on such judicial construction. We quote from the opinion :2
“In other words, only when a tenant in common does-, in fact, restrict ownership and control to a particular part of the total property can he base his claim of exemption upon the value of that aliquot part rather than on the value of the whole property. Where the tenant in common does not so restrict his control but instead practices the usual *181incidents of ownership over the whole property, the total value of the property must he included in the aggregate of such tenant’s taxable property.” (Emphasis supplied.)
The opinion cites Tharp v. Allen, 46 Mich 389; Cleaver v. Bigelow, 61 Mich 47; Hooper v. McAllister, 115 Mich 174.
Judge Wise, however, also correctly determined from the pleadings and the exhibits that: "
“In this case, it is obvious that there has been no partition in fact. Plaintiff and his wife occupy and share the residence in question as their homestead. Since the incidents of ownership are not separated, the total value of the property must be considered.”
This determination was not contradicted by. anything in the record before the Court at the time he granted and denied the respective motions.
Plaintiff has cross-appealed. Somewhat enigmatically he argued to the Court of Appeals that the exemption is unconstitutional and hence he. was not entitled thereto. On this point, we are in accord with the holding of the Court of Appeals and upon the basis of the authority by it cited. We find .no constitutional infirmity in the statute.
The order of the Court of Appeals reversing the trial court and remanding for further proceedings in the circuit court should be vacated. Thé' case should be remanded to the Court of Appeals with directions to enter its order affirming the trial court. No costs, a public question. ■
Dethmers, C. J., concurred with O’Hara, J; Brennan, J., did not participate in the decision of this case.CLS 1961, § 211.7, subd 11 (Stat Ann 1961 Cum Supp § 7,7, subd 111).
1 OAG 1959-1960, No 3392, p 77, at pp 78, 79.