(dissenting).
In my judgment the majority opinion misinterprets the inventory of property that Joseph Kunauntubbee Sr. submitted to the rounty assessor of Bowie County, Texas, in March, 1949. He showed the owner of the property to be Joseph Kunauntubbee, Jr. He did not sign the Homestead Oath. He never said he owned the lots covered by the inventory and I cannot find where Joseph Kunauntubbee Sr. at any time ever claimed this Texas property as his homestead. The property had been turned over to Joseph Kunaun-tubbee, Jr. This is shown by the fact that on January 13, 1949, Joseph Jr. wrote his mother and father as follows: “Dad if you think you can do good in Dallas I would go, there’s no sense in doing without if you can get a job there. I would help you out, but since I’m starting paying for the place, I’m sort of snow balled.” The son was then in the Navy, stationed at Pensacola, Florida. That the son took over the property in 1949 is sustained by other evidence.
It is conceded that the homestead allotment of Joseph Kunauntubbee was his constitutional homestead at one time. The claim that it was abandoned as a homestead before the Kunauntubbees went to Bowie County, Texas, was virtually abandoned in the trial of this case and the trial court based his decision not on this point but on the purchase of the Texas property. Certainly the evidence would not justify the release of homestead rights on the record made on this point. The defendant must stand or fall on the proposition that Joseph Kunauntubbee abandoned the Oklahoma homestead by his conduct in Texas. This certainly has not been shown by the Kunauntubbees’ dealings with the tax assessor of Bowie County, Texas.
A Mr. Shepard from whom Kunauntub-bee purchased this property in Bowie County testified that Joseph told his foreman in his presence that he was not going back to Oklahoma but Joseph denied ever making such a statement. I do not think that even though he made such a statement that that' alone would constitute an abandonment of his homestead in Oklahoma. That homestead is not abandoned until a new homestead is adopted and proof of that is utterly wanting here. This question is discussed in Rancho Oil Co. v. Powell, 142 Tex. 63, 175 S.W.2d 960. We said in McCammon v. Jenkins, 44 Okl. 612, 145 P. 1163, that a homestead could not be abandoned without removal with a definite intention to never return. See also Cooper v. Kiester, 199 Okl. 238, 185 P.2d 458. To me it would be grossly unfair to say that Joseph’s intention to abandon his homestead in Oklahoma was proven by his statement in answering to “kidding” that he was not going back to Oklahoma. He was a native born Oklahoman with his roots deeply implanted in the soil of Murray County.
I do not think it is necessary to discuss Mrs. Kunauntubbee’s statements about the Texas property for the reason that the husband selects the homestead and whatever she said would be immaterial. Illinois Oldsmobile Co. v. Miller, 199 Iowa 894, 202 N.W. 751; Gough v. Gibson, Tex.Civ.App., 1 S.W.2d 684; 40 C.J.S. Homesteads § 164 at p. 641.
We would never say that this Oklahoma property would have been subject to execution for Joseph Kunauntubbee’s debts. We should not have one rule for homesteads where property is being sold and another where property is being levied upon under execution. This is what we are doing. I dissent.