LAMM, C. J.
Plaintiffs are heirs and descendants and devisees of dfeceased heirs of S. H. Headlee, deceased. Some of defendants are children and heirs and some husbands of daughters of John W. Lewis, deceased. The suit, one to determine and adjudge title to real estate in Crawford county, is bottomed on former section 650, now Section 2535, Revised Statutes 1909.
Attend to the facts and circumstances: In November, 1896, John W. Lewis died seized of the farm in dispute as a homestead, with other land not subject to homestead, leaving a widow and six minor children. In 1899, by a proceeding in the probate court, a homestead was carved out of said lands, appraised and set off to said widow and six minors. From thence on things moved off at a smartish pace; for one year later Sweyers, administrator of Lewis, by a proceeding in the same probate court got an order to sell and did sell said homestead, “subject to the homestead rights of the widow and minor children,” to pay claims allowed against the estate.
(Note: The record shows the indebtedness did not accrue before the acquisition of the homestead by decedent.)
At that sale S. H. Headlee, one of the creditors, purchased for $75 and received an administrator’s deed. In 1901 the widow died, the children continuing to reside on the homestead. In 1909, the date of the judgment in the instant case, two of them were yet minors and four had attained their majority. Both the proceedings to set oil homestead and sell for debts [574]*574were in form, hence details are unimportant. The isstte below hinging on the efficacy of that deed to convey. title, the .pleadings were appropriate to that issue and need no further attention.
The trial court held that, under the facts stated, the homestead could not be sold in course of administration to pay debts at large not created before the acquisition of the homestead. Plaintiffs appealing, the question is: Under the Homestead Act of 1895, was the sale valid and did the administrator’s deed convey title?
Instructions were given for defendants in accord with (and refused for plaintiffs against) the theory of the judgment. We have been inclined to view suits to declare and adjudge title under old section 650 as of an equitable nature, except where the issue was title by limitations, accretions or the like. [Peniston v. Brick Co., 234 Mo. 1. c. 700.] If, then, the suit was in equity instructions fill no office. If at law, then .the office of instructions was merely to indicate the trial theory of the court. In any event, to determine the cause on appeal we need pay no attention to them, because the facts and judgment sufficiently indicate the trial theory. , ,
We are of opinion the judgment should be affirmed both on authority and reason.
(a) On authority, because the Homestead Act of 1895 lias been construed to mean that land subjected to homestead cannot be sold in course of administration to pay debts of a decedent, where such debts were created subsequent to the acquisition of the homestead and not charged thereon in the lifetime- of the deceased Homestead: Decedent’s Debts. householder. [Broyles v. Cox, 153 Mo. 242; In re Estate of Powell, 157 Mo. 151; Balance v. Gordon, 247 Mo. 119.] That construction has never been departed from, hence those cases must either be overruled or the point be held against appellants.
[575]*575True it is that a supposition has been indulged (sometimes, arising to the dignity of an impression) that the authority of the Broyles-Cox and Powell eases has either been shaken or exploded by later cases, but, as held in the Balance-Gordon case, that impression is an airy nothing without substance. This becomes apparent when we consider Keene v. Wyatt, 160 Mo. 1, and its per curiam in Banc. [p. 9, quod vide.] In Poland v. Vesper, 67 Mo. 727, it was held that, because of the peculiar wording of the Homestead Act of 1875, a homestead might be sold in course of administration to pay debts, subject to existing rights of the widow and minor children. Now, the Broyles-Cox and the Powell cases arose on sales made after the Act of 1875 was repealed and while the Act of 1895 was in force. Therefore, the latter act was alone held in judgment in those cases. However, the court in deciding them discussed the Act of 1875 and announced obiter doctrines contra to the holding in the Poland-Yesper case. When the Keene-Wyatt case was here our attention in Bane was called to that condition of things and we repudiated so much of the opinions in the Broyles-Cox and Powell cases as construed the Act of 1875 contra to the holding in the Poland-Yesper case, returning to and reaffirming its doctrine as a sound construction of the Act of 1875. [Robbins v. Boulware, 190 Mo. 33.] But, observe, the Banc per curiam in the Keene-Wyatt case left those cases as authority, so far as they construed the Act of 1895. We so held in the Balance-Gordon case.
In addition to what is held of set purpose in the Balance-Gordon case in that regard (and after full consideration) the explanatory remarks of Valliant and Marshall, JJ., in New Madrid Banking Company v. Brown, 165 Mo. 1. c. 39, throw a clear light on the question and may be consulted with profit.
We shall not leave this branch of the case without a further observation, viz.: It was suggested (in the [576]*576original opinion of BOND, J., in the instant case, to-which Division One did not agree), that the Balance-G-ordon case may be differentiated or distinguished in principle from the one at bar. But I am unable to agree to the ground of differentiation, running after this fashion, viz.: That case held in judgment the rights of a devisee, whereas this holds in judgment the rights of heirs by descent east. Suppose that be so, what legal principle is involved in the difference of fact? How can that inconsequential fact take this case out of the doctrine of the maxim: Concerning simi-lars the judgment is the same?
When well looked to, in principle it must.be certain that if the case at bar is to be ruled for appellants, then-the Balance-Gordon case was badly ruled; for has it ever been held by any respectable court that, as to a creditor, a devisee stands on a better foot than an heir? Does a will, qua will, touch or in aught affect the right of a creditor of the deceased householder, dying testate, to have satisfaction of his debt out of testator’s property? Does not a devisee take cum onere precisely as does an heir, under any view of the. law? If, then, an administrator’s deed under an order of sale by the probate court, made during the existence of a homestead estate, passes no title as to the devisee of the testator, as held in the Balance-Gordon case,-how can it pass title as to the heir of an ancestor? The question carries its own answer shining on its face.
° We shall not override the Broyles-Cox, the Powell and the Balance-Gordon cases. Stare decisis.
(b) The result reached in paragraph “a” also is reached if we consider the question on the wording of homestead statutes and on the. reason of the thing. Thus:
(1) In the first place it must be admitted that, as a general proposition (absent any modification by homestead acts) an heir takes under the Statute" of [577]*577Descents and Distribution sub modo, i. e., subject to the payment of the ancestor’s debts (R. S. 1909, sec.
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LAMM, C. J.
Plaintiffs are heirs and descendants and devisees of dfeceased heirs of S. H. Headlee, deceased. Some of defendants are children and heirs and some husbands of daughters of John W. Lewis, deceased. The suit, one to determine and adjudge title to real estate in Crawford county, is bottomed on former section 650, now Section 2535, Revised Statutes 1909.
Attend to the facts and circumstances: In November, 1896, John W. Lewis died seized of the farm in dispute as a homestead, with other land not subject to homestead, leaving a widow and six minor children. In 1899, by a proceeding in the probate court, a homestead was carved out of said lands, appraised and set off to said widow and six minors. From thence on things moved off at a smartish pace; for one year later Sweyers, administrator of Lewis, by a proceeding in the same probate court got an order to sell and did sell said homestead, “subject to the homestead rights of the widow and minor children,” to pay claims allowed against the estate.
(Note: The record shows the indebtedness did not accrue before the acquisition of the homestead by decedent.)
At that sale S. H. Headlee, one of the creditors, purchased for $75 and received an administrator’s deed. In 1901 the widow died, the children continuing to reside on the homestead. In 1909, the date of the judgment in the instant case, two of them were yet minors and four had attained their majority. Both the proceedings to set oil homestead and sell for debts [574]*574were in form, hence details are unimportant. The isstte below hinging on the efficacy of that deed to convey. title, the .pleadings were appropriate to that issue and need no further attention.
The trial court held that, under the facts stated, the homestead could not be sold in course of administration to pay debts at large not created before the acquisition of the homestead. Plaintiffs appealing, the question is: Under the Homestead Act of 1895, was the sale valid and did the administrator’s deed convey title?
Instructions were given for defendants in accord with (and refused for plaintiffs against) the theory of the judgment. We have been inclined to view suits to declare and adjudge title under old section 650 as of an equitable nature, except where the issue was title by limitations, accretions or the like. [Peniston v. Brick Co., 234 Mo. 1. c. 700.] If, then, the suit was in equity instructions fill no office. If at law, then .the office of instructions was merely to indicate the trial theory of the court. In any event, to determine the cause on appeal we need pay no attention to them, because the facts and judgment sufficiently indicate the trial theory. , ,
We are of opinion the judgment should be affirmed both on authority and reason.
(a) On authority, because the Homestead Act of 1895 lias been construed to mean that land subjected to homestead cannot be sold in course of administration to pay debts of a decedent, where such debts were created subsequent to the acquisition of the homestead and not charged thereon in the lifetime- of the deceased Homestead: Decedent’s Debts. householder. [Broyles v. Cox, 153 Mo. 242; In re Estate of Powell, 157 Mo. 151; Balance v. Gordon, 247 Mo. 119.] That construction has never been departed from, hence those cases must either be overruled or the point be held against appellants.
[575]*575True it is that a supposition has been indulged (sometimes, arising to the dignity of an impression) that the authority of the Broyles-Cox and Powell eases has either been shaken or exploded by later cases, but, as held in the Balance-Gordon case, that impression is an airy nothing without substance. This becomes apparent when we consider Keene v. Wyatt, 160 Mo. 1, and its per curiam in Banc. [p. 9, quod vide.] In Poland v. Vesper, 67 Mo. 727, it was held that, because of the peculiar wording of the Homestead Act of 1875, a homestead might be sold in course of administration to pay debts, subject to existing rights of the widow and minor children. Now, the Broyles-Cox and the Powell cases arose on sales made after the Act of 1875 was repealed and while the Act of 1895 was in force. Therefore, the latter act was alone held in judgment in those cases. However, the court in deciding them discussed the Act of 1875 and announced obiter doctrines contra to the holding in the Poland-Yesper case. When the Keene-Wyatt case was here our attention in Bane was called to that condition of things and we repudiated so much of the opinions in the Broyles-Cox and Powell cases as construed the Act of 1875 contra to the holding in the Poland-Yesper case, returning to and reaffirming its doctrine as a sound construction of the Act of 1875. [Robbins v. Boulware, 190 Mo. 33.] But, observe, the Banc per curiam in the Keene-Wyatt case left those cases as authority, so far as they construed the Act of 1895. We so held in the Balance-Gordon case.
In addition to what is held of set purpose in the Balance-Gordon case in that regard (and after full consideration) the explanatory remarks of Valliant and Marshall, JJ., in New Madrid Banking Company v. Brown, 165 Mo. 1. c. 39, throw a clear light on the question and may be consulted with profit.
We shall not leave this branch of the case without a further observation, viz.: It was suggested (in the [576]*576original opinion of BOND, J., in the instant case, to-which Division One did not agree), that the Balance-G-ordon case may be differentiated or distinguished in principle from the one at bar. But I am unable to agree to the ground of differentiation, running after this fashion, viz.: That case held in judgment the rights of a devisee, whereas this holds in judgment the rights of heirs by descent east. Suppose that be so, what legal principle is involved in the difference of fact? How can that inconsequential fact take this case out of the doctrine of the maxim: Concerning simi-lars the judgment is the same?
When well looked to, in principle it must.be certain that if the case at bar is to be ruled for appellants, then-the Balance-Gordon case was badly ruled; for has it ever been held by any respectable court that, as to a creditor, a devisee stands on a better foot than an heir? Does a will, qua will, touch or in aught affect the right of a creditor of the deceased householder, dying testate, to have satisfaction of his debt out of testator’s property? Does not a devisee take cum onere precisely as does an heir, under any view of the. law? If, then, an administrator’s deed under an order of sale by the probate court, made during the existence of a homestead estate, passes no title as to the devisee of the testator, as held in the Balance-Gordon case,-how can it pass title as to the heir of an ancestor? The question carries its own answer shining on its face.
° We shall not override the Broyles-Cox, the Powell and the Balance-Gordon cases. Stare decisis.
(b) The result reached in paragraph “a” also is reached if we consider the question on the wording of homestead statutes and on the. reason of the thing. Thus:
(1) In the first place it must be admitted that, as a general proposition (absent any modification by homestead acts) an heir takes under the Statute" of [577]*577Descents and Distribution sub modo, i. e., subject to the payment of the ancestor’s debts (R. S. 1909, sec. 332); and that the creditor’s claim is somewhat in the nature of a lien. [Higbee v. Bank, 244 Mo. 1. c. 425.] ..Homestead to Descents. But that concession amounts to no more than saying that such is the general rule of statutory law that would govern unless (as happens) homestead acts ■cover the whole ground and, as complete legislative thoughts, become codes unto themselves; and, being later enactments, are to be grafted (as also happens) ■on the main stem of the statutory rule of descent subject to debts as an exception applicable to homesteads. Now, this is precisely the office of homestead laws in that regard as careful examination will show. Thus: The first homestead act (Laws 1862-3, p. 22) was of short life and may be passed by; for it never found place in any revision. The next came into force and being in the General Statutes of 1865. [Sperry v. Cook, 247 Mo. 132.] That law, in force for ten years, was borrowed from Vermont and received the construction put upon it by Vermont courts. [Skouten v. Wood, 57 Mo. 380.] The force and effect of that decision, contra the general statutory rule of descent, placed the fee to the homestead in the householder’s widow subject to specified and terminable rights of the minor children and, on the widow’s death, the homestead descended to h'er heirs instead of to the heirs of the husband; this, in spite of the general statutory rule' ■of descent. At once when that opinion was handed •down the Legislature in 1875 amended the Homestead Act of 1865 by changing it so that, by the very words of the amended act itself, the homestead descended to the husband’s heirs. Mark, the act did not leave the Statute of Descents to control even by implication or Construction, but, sufficient unto itself, it dealt with the [578]*578matter directly and specifically. So, when the Homestead Act of 1895 was passed it was so worded as to-expressly provide for the descent of the homestead tract and the same peculiarity exists in the two Homestead Acts of 1907. [Laws 1907, pp. 300-1] Our conclusion is, therefore, that our several homestead acts-have been codes unto themselves as complete and rounded legislative thoughts. We must look to them, not to the general statute of descent, for a solution of the question in hand, to-wit, whether a homesteád tract can he sold in course of administration to pay debts..
The pronouncement just made is rendered more-sure when we consider the decisions of this court on questions pertaining to homestead acts. It will he found that the trend of the judicial mind in that regard has been to allow homestead questions to break on á construction of homestead acts as distinguished from the statutes of descents. For example: In the Skouten-Wood case the question of descent rode off on the construction of the Act of 1865. In the Poland-Ves-p-er case no reference is made to the general statute-of descents, but the case rode off on a construction of the very language of the Homestead Act of 1875. So in the Keene-Wyatt case. When we come to the-Broyles-Cox, the Powell and the Balance-Gordon cases it will be found that they broke on a construction of the very language of the Homestead Act of 1895. The-' same is true of other cases. If the rule of decision heretofore adopted be allowed to obtain in this case we may not rule it under the provisions of the Statute of Descent and Distribution, but alone on a construction of the Homestead Act,
With so much determined, we come to another proposition, viz.:
(.2) The reason of the thing lies emphatically with the proposition that the homestead tract should not be sold to pay debts subject -to the rights of the widow [579]*579and minor children, as. in this case. This because: indTvisibfe The vested homestead estate of the chil-clren may, with exception of the uncertainty of life, be estimated, but that of the widow is wholly in nubibus; for it is darkened by two prime uncertainties of time, to-wit, her death and her remarriage. It has been held that the homestead and fee are not “two separable and divisible interests.” They must be kept together. [Bank v. Guthrey, 127 Mo. 1. c. 196.] It is on that theory partition will not lie while the homestead exists. [Brewington v. Brewington, 211 Mo. 1. c. 64.] Moreover, to sell the fee subject- to such uncertain rights is bad public policy ; for it attains but one certain end, namely, the sacrifice of the property of those very persons the law holds in tender regard as its wards, viz.,'the widow and the fatherless, at the very time, too, when-they most need protection in their property rights because they are the least able to protect themselves. The ease at bar is a typical case in that aspect; for it is stated in respondent’s statement, additional abstract and brief, and not denied by appellants, that this homestead sold for. a bagatelle, to-wit, $75. When we consider that on this record it was carved out of a larger estate a year or so before, it must be presumed it was either of the value of $1500 or else was of a 160 acres in extent — • such being the statutory limits of a homestead. We shall recur to the question of sacrifice again.
Since it is true that as the furnace proveth the potter’s vessels, so the trial of a judge in his reasoning (See Eecles. xxvii:5, for the idea); under the head of reason let us look a little deeper and to another phase of the matter, to-wit, the raison d’etre of our homestead. acts. What is their underlying motive ? Solicitude for creditors? As a ways and means for' debt collecting? Does a creditor give credit to a householder on the fáith of his homestead? Certainly not. It will be time enough, then, for this court to be asr [580]*580tute to provide ways and means for a creditor to collect Ms debt from a homestead tract when the lawmaker has first evinced such purpose in his homestead laws — and not before. Those laws face the other way emphatically. They of set purpose show no solicitude for creditors. It was so from the beginning; for, as already pointed out, our second homestead law vested a fee in the widow, except as to debts of a specified and limited character. That law cut the creditor off without the traditional shilling, except he fall in a certain class. True, as said, in 1875, a Homestead Act was passed permitting administrators under orders of probate courts to sell the homestead tract to pay debts, subject to the rights of the widow and children, or either, as the case might be. That permission ran in the following words: “. . . But all the right, title and -interest of the deceased housekeeper or head of a family in the premises, except the estate of the homestead thus continued, shall be subject to the laws relating to devise, descent, dower, partition and sale for the payment of debts against the estate of the deceased,” etc. [R. S. 1879, sec. 2693.] It was on the italicized clause that the ruling in the Poland-Vesper case was put, and not otherwise.
Having tried out that theory in practice, it was found unsatisfactory, so that twenty years later (1895) the Homestead Act was amended. How? Mark the amendment,- for thereby weighty matter hangs — by eliminating the foregoing language and.making other material changes aimed at preserving the integrity of the homestead. That act read (R. S-. 1899, sec. 3620):
“If any such housekeeper or head of a family shall die, leaving a widow or any minor children, his homestead to the value aforesaid shall pass to and vest in such widow or children, or if there be both, to such widow and children,’ and shall continue for their benefit without being subject to the payment of the debts of the deceased, unless legally charged thereon [581]*581in Ms lifetime, until the youngest cMld shall attain its legal majority, and until the death of such widow: that is to say, the children shall have the joint right of occupation with the widow until they shall arrive respectively at their majority, and the widow shall have the right to occupy such homestead during her life or widowhood, and upon her death or remarriage it shall pass to the heirs of the husband. . . .”
Closer home, what was the purpose of the Legislature in omitting in the Act of 1895 to give probate courts authority to sell the homestead tract, pending the existence of a homestead estate and subject to that estate? For the purpose of paying debts? If so, why were the very words giving that authority in the Act of 1875 left out,of the amendment? To insert them anew by construction, by reference to the Statute, of Descents ? That would be to ignore the prime office of the amendment whereby the power to sell was stricken out. "Why was it stricken out at all, if that theory is to be set on foot? The mischief to be avoided by the amendment is obvious. It is set forth by no less authority than Cooley, J. (Showers v. Robinson, 43 Mich. 1. c. 508), thus:
“But a sale thus made is likely in many cases to be ruinous to the estate, from the great uncertainty attending the continuance of the homestead right, and the consequent impossibility of finding elements of certainty whereby to determine the value of the fee subject to it. Selling the land under such circumstances is something like selling the contingent inheritance of the heir expectant, if that were salable; the. one like the other depends partly upon the continuance of life, and partly upon the will and discretion of a party having a present interest. A widow entitled with her minor children to a homestead may live and claim the enjoyment of it for twenty or even fifty years, or she may die, leaving no children, in one year, or she may at . once abandon the homestead right and [582]*582remove with, her children to a distant State, because she finds it for her interest to reside elsewhere.” (Note: While some of those features may he absent from our statute, yet the remarriage of the widow introduces an equivalent element. Judge Cooley continues) : ‘ ‘ The elements of value in the fee under such circumstances are so exceedingly uncertain that it is highly improbable there could be any competition in a sale except perhaps of those who would bid for the land only what it would be worth in the contingency most unfavorable to the purchaser. A sale of anything of such uncertain value must almost of necessity be a sale at a great sacrifice. .[Rottenberry v. Pipes, 53 Ala. 452.]”
It must be taken as assumed that it could not be contended for a moment that the probate court had any jurisdiction to order the sale of a homestead in contravention of the homestead statute. Now, the Statute of 1875, as construed by this court in the Poland-Vesper case and in the Keene-Wyatt case, gave such authority. That of 1895, as construed by this court in the Broyles-Cox, Powell and Balance-Grordon cases, took it away. And in that ruling we followed the per curiam in the Keene-Wyatt case.
It is trite learning that the state of the old law, the mischiefs arising thereunder and the remedies provided therefor in the new law, is the canonized touchstone of interpretation of amended statutes. [State ex rel. v. McQuillin, 246 Mo. 1. c. 534.] How else could a court get at the intendment of the lawgiver! The precept to go by is: To know properly is to know a thing in its reason, and by its cause. [Coke. Litt. 183b.]
With that rule of interpretation in mind, the mis-, chief of the old law and the remedy provided by the new spring spontaneously into view. The mischief was the sacrifice of the homestead tract as pointed out by Judge Cooley in the quoted excerpt from the Show[583]*583ers case. The remedy was to prevent such sacrifice and to make effectual the idea that the homestead is forbidden fruit to the creditor. It is our bounden duty to construe the new law so as to retard the mischief and advance the remedy. We may not, as we are invited to do, overlook both mischief and remedy, and dispose of the question as if there had been no amendment at all. To rule in that way would be to introduce an audacious and disturbing novelty into judicial exposition.
As said, in dealing with homesteads there is no legislative solicitude shown for the creditor, either during the life or after the death of the head of the family. Certainly not in life — why, then, in death? Thus, the creditor in the life of the householder cannot nail the homestead tract down and fasten it to one spot by a judgment lien. [Burton v. Look, 162 Mo. 502.] Neither can he complain of a fraudulent disposition of it. [Schaffer v. Beldsmeier, 107 Mo. 314.] Why? Because he is not allowed to meddle with it while the homestead right lasts. Nor (and this is close home) can the creditor sell the homestead tract on fi. fa., subject to the homestead right while the homestead exists. , [Moore v. Wilkerson, 169 Mo. 1. c. 337.] If that' be so in life, why should the creditor have the right to act in that way after the grizzly King of Terrors has intervened? That would be, indeed, to add a new terror to death by judicial construction. We hold death has enough of its own. On the other hand, the sole purpose of those laws, as now spread on the books, read in the lines and between the lines of the statutes, is to protect the homestead tract from the creditor. They have no other raison d’etre. But we have pursued the matter far.
The premises all considered, the judgment should be affirmed.
[584]*584It is so ordered.
Woodson, Graves, Brown, Walker and Baris, JJ., concur; Bond, J., dissents in an opinion filed.