The opinion of the court was delivered by
Valentine, J.:
In 1873, while James M. Church was owning and occupying a certain piece of land with his family, which consisted of a wife and five children, he died intestate, owing many debts and leaving no personal estate with which to pay them, and no real estate except the said land, which he occupied as a homestead. The family continued to reside upon said land for about one year after Church’s death, when they removed therefrom, but afterward returned thereto, and occupied the same until in 1877, when they again removed therefrom. While' they resided upon the land, two of the children executed deeds conveying to their mother, Mrs. Church, all their interest in the premises, and their mother executed deeds conveying portions of her interest to Cates & Keplinger and to Dayton & Barker. The consideration for the conveyance to Dayton & Barker was another piece of land conveyed by them to her, which she then contemplated making and afterward did make her homestead. On October 25, 1877, the probate court, on proper petition and due notice given to all the parties interested, made an order that the administrator of the estate of said James M. Church, deceased, to wit, G. W. Donart, should sell said land to pay said debts. Whereupon the parties interested in the land, to wit, Dayton •& Barker, Cates & Keplinger, and said widow and children, took an appeal to the district court. In the district court, a trial was had before the court, without a jury, and judgment was rendered confirming the order of the probate court, and against the appellants for costs. The appellants then, as plaintiffs in error, brought the case to this court.
A decision of this case involves the construction of the statutes of 1868 relating to descents and distributions, and [268]*268kindred statutes. (See Gen. Stat., p.392, §§ 1 to 6; p. 439, § 39; p. 454, § 114; p. 713, § 443; p. 1107, § 1; also, Vandiver v. Vandiver, 20 Kas. 501.)
The plaintiffs in error claim that when Church died, the title to said real estate went absolutely, unconditionally, entirely and finally to his widow and children then occupying the premises; and they claim this, under the statutes, on the mere ground of occupancy alone. They say that the first moment of bona fide occupancy by the widow and children so fixed the title in the occupants that no subsequent abandonment by them would have the effect to expose the property to liability for the payment of Church’s debts. Now, if mere occupancy alone for any period of time, long or short, could have the effect to so free the land from liability for Church’s debts that no subsequent abandonment of the premises would expose them to such liability, we should think that under the statutes a moment’s time would be just as good as any longer period of time. But in our opinion no period of time, however long, is sufficient to give absolute title, free from debts, if the debts remain unpaid and not barred by the statute of limitations. The construction of the statutes contended for by the plaintiffs in error is open to many objections:
1. It would often work injustice to the ancestor’s children, or to a portion of them; for if all the property should go absolutely and unconditionally to the intestate’s widow and children, adults and minors, living at his home at the time of his death, none of it could ever go to the intestate’s children, minors or adults, living away from his home at the time of his death.
2. It would lead to endless litigation; for it is often difficult to tell whether a father’s adult children still have their residence at his home or not.
3. It would render nugatory the following words of the statute, to wit: “And continued to be so occupied by his widow and children after his death.” (Gen. Stat. 392, §2.) These words are found in the very statute, the very section [269]*269and the very sentence under which the plaintiffs in error make their claim. Every widow and child residing upon the husband’s or father’s homestead at the time of his death, almost necessarily continues to reside there for some time afterward. And hence, with the construction of the statutes •contended for by the plaintiffs in error, the title would always be made absolute and unconditional in the widow and such of the children as might reside upon the premises at the time •of the intestate’s death.
4. It would render nugatory that clause of § 4 of the same statute, which reads as follows: “ If the intestate left no children, the widow shall be entitled to said homestead.” (Gen. Stat. 392, § 4.) For, according to the theory of the plaintiffs in error, the entire property goes, independent of said clause of § 4, only to the widow and such of the children as reside upon the homestead at the time of the intestate’s death. Hence, if no one but the widow resided upon the homestead at the time of the intestate’s death, she alone would take the entire property, whether he left any children or not.
5. It also, in our opinion, contravenes the provisions of § 5 of the same act. (Gen. Stat. 392.) For, as we have already decided in the case of Vandiver v. Vandiver, 20 Kas. 501, when the homestead is divided under the provisions of that section between the widow and children, each child, whether adult or minor, and whether he ever resided upon the homestead or not, is entitled to receive an equal share of the homestead with the other children, and all the children together are to receive one-half of the homestead, and the widow the other half.
1. Homestead; anachiiareiT panoy“kta0n-‘ [270]*2702'rigSfnature. abandonment; aebt“.testates [269]*269We might perhaps point out other objections, but these we think are sufficient. Evidently the construction contended for by the plaintiffs in error is not the correct one. In our opinion, when a man dies intestate, leaving a 1 ’ ’ , . W1C‘0W and children, the ultimate title to his homestead descends to his widow and children just the same as the title to all his other real estate does, except that it descends to them subject to a homestead [270]*270interest vested in the widow and such of the children as occupy the homestead at the time of the intestate’s death. This construction of the statutes is in harmony with justice and with all our statutes and with every portion thereof, except perhaps with the word “absolute,” contained in § 2 of the act relating to descents and distributions. (Gen. Stat. 392.) But this word “absolute,” as used in said §2, evidently does not mean what it would in some other cases. It, together with the words used in connection therewith, simply means: that so long as the widow and children continue to occupy the homestead, and the widow does not marry again, and one or more of the children still remain minors, they may hold the property as their homestead as though it were their absolute property, free from all debts (except incumbrances given by husband and wife, and taxes, and debts for purchase-money and improvements), and free from division or distribution. But evidently from the statutes they hold the property as their absolute property, free from debts and division only while some of them occupy the same as their homestead. If they all abandon the property as a homestead, it then becomes subject to debts and division the same as though it never was a homestead.
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The opinion of the court was delivered by
Valentine, J.:
In 1873, while James M. Church was owning and occupying a certain piece of land with his family, which consisted of a wife and five children, he died intestate, owing many debts and leaving no personal estate with which to pay them, and no real estate except the said land, which he occupied as a homestead. The family continued to reside upon said land for about one year after Church’s death, when they removed therefrom, but afterward returned thereto, and occupied the same until in 1877, when they again removed therefrom. While' they resided upon the land, two of the children executed deeds conveying to their mother, Mrs. Church, all their interest in the premises, and their mother executed deeds conveying portions of her interest to Cates & Keplinger and to Dayton & Barker. The consideration for the conveyance to Dayton & Barker was another piece of land conveyed by them to her, which she then contemplated making and afterward did make her homestead. On October 25, 1877, the probate court, on proper petition and due notice given to all the parties interested, made an order that the administrator of the estate of said James M. Church, deceased, to wit, G. W. Donart, should sell said land to pay said debts. Whereupon the parties interested in the land, to wit, Dayton •& Barker, Cates & Keplinger, and said widow and children, took an appeal to the district court. In the district court, a trial was had before the court, without a jury, and judgment was rendered confirming the order of the probate court, and against the appellants for costs. The appellants then, as plaintiffs in error, brought the case to this court.
A decision of this case involves the construction of the statutes of 1868 relating to descents and distributions, and [268]*268kindred statutes. (See Gen. Stat., p.392, §§ 1 to 6; p. 439, § 39; p. 454, § 114; p. 713, § 443; p. 1107, § 1; also, Vandiver v. Vandiver, 20 Kas. 501.)
The plaintiffs in error claim that when Church died, the title to said real estate went absolutely, unconditionally, entirely and finally to his widow and children then occupying the premises; and they claim this, under the statutes, on the mere ground of occupancy alone. They say that the first moment of bona fide occupancy by the widow and children so fixed the title in the occupants that no subsequent abandonment by them would have the effect to expose the property to liability for the payment of Church’s debts. Now, if mere occupancy alone for any period of time, long or short, could have the effect to so free the land from liability for Church’s debts that no subsequent abandonment of the premises would expose them to such liability, we should think that under the statutes a moment’s time would be just as good as any longer period of time. But in our opinion no period of time, however long, is sufficient to give absolute title, free from debts, if the debts remain unpaid and not barred by the statute of limitations. The construction of the statutes contended for by the plaintiffs in error is open to many objections:
1. It would often work injustice to the ancestor’s children, or to a portion of them; for if all the property should go absolutely and unconditionally to the intestate’s widow and children, adults and minors, living at his home at the time of his death, none of it could ever go to the intestate’s children, minors or adults, living away from his home at the time of his death.
2. It would lead to endless litigation; for it is often difficult to tell whether a father’s adult children still have their residence at his home or not.
3. It would render nugatory the following words of the statute, to wit: “And continued to be so occupied by his widow and children after his death.” (Gen. Stat. 392, §2.) These words are found in the very statute, the very section [269]*269and the very sentence under which the plaintiffs in error make their claim. Every widow and child residing upon the husband’s or father’s homestead at the time of his death, almost necessarily continues to reside there for some time afterward. And hence, with the construction of the statutes •contended for by the plaintiffs in error, the title would always be made absolute and unconditional in the widow and such of the children as might reside upon the premises at the time •of the intestate’s death.
4. It would render nugatory that clause of § 4 of the same statute, which reads as follows: “ If the intestate left no children, the widow shall be entitled to said homestead.” (Gen. Stat. 392, § 4.) For, according to the theory of the plaintiffs in error, the entire property goes, independent of said clause of § 4, only to the widow and such of the children as reside upon the homestead at the time of the intestate’s death. Hence, if no one but the widow resided upon the homestead at the time of the intestate’s death, she alone would take the entire property, whether he left any children or not.
5. It also, in our opinion, contravenes the provisions of § 5 of the same act. (Gen. Stat. 392.) For, as we have already decided in the case of Vandiver v. Vandiver, 20 Kas. 501, when the homestead is divided under the provisions of that section between the widow and children, each child, whether adult or minor, and whether he ever resided upon the homestead or not, is entitled to receive an equal share of the homestead with the other children, and all the children together are to receive one-half of the homestead, and the widow the other half.
1. Homestead; anachiiareiT panoy“kta0n-‘ [270]*2702'rigSfnature. abandonment; aebt“.testates [269]*269We might perhaps point out other objections, but these we think are sufficient. Evidently the construction contended for by the plaintiffs in error is not the correct one. In our opinion, when a man dies intestate, leaving a 1 ’ ’ , . W1C‘0W and children, the ultimate title to his homestead descends to his widow and children just the same as the title to all his other real estate does, except that it descends to them subject to a homestead [270]*270interest vested in the widow and such of the children as occupy the homestead at the time of the intestate’s death. This construction of the statutes is in harmony with justice and with all our statutes and with every portion thereof, except perhaps with the word “absolute,” contained in § 2 of the act relating to descents and distributions. (Gen. Stat. 392.) But this word “absolute,” as used in said §2, evidently does not mean what it would in some other cases. It, together with the words used in connection therewith, simply means: that so long as the widow and children continue to occupy the homestead, and the widow does not marry again, and one or more of the children still remain minors, they may hold the property as their homestead as though it were their absolute property, free from all debts (except incumbrances given by husband and wife, and taxes, and debts for purchase-money and improvements), and free from division or distribution. But evidently from the statutes they hold the property as their absolute property, free from debts and division only while some of them occupy the same as their homestead. If they all abandon the property as a homestead, it then becomes subject to debts and division the same as though it never was a homestead. This homestead right is probably just like any other homestead-exemption right, except that it is held by the occupants (prior to the widow’s marriage, and prior to ail the children s reach-inS their majority) free from division or partition, as well as free from debts; and when it is abandoned as a homestead (if not previously sold), it becomes liable for the intestate’s debts, as well as for the occupants’ own debts. If we are correct in this — and we think we are, for we know of no reason why we are not correct— then it necessarily follows, from prior decisions of this court, that if the property or any interest therein is sold and conveyed while the property is still occupied as a homestead by the widow and any one or more of the minor children, the title to such property or interest passes to the purchaser free from all debts, except prior incumbrances given by the intes[271]*271tate and wife, or grantor and wife or husband, and taxes, and debts for purchase-money and improvements, although the property may afterward be abandoned as a homestead by the widow and children. (Morris v. Ward, 5 Kas. 239; Hixon v. George, 18 Kas. 254, 260.) Upon this point, we differ from the court below. The court below seems to have held that no sale of the property could free it from liability for the intestate’s debts; that as soon as the property was abandoned as a homestead, it became liable for the intestate’s debts, whether the property had previously been sold and conveyed or not. In this, we think the court below erred.
There are some other questions in this case, but we do not think it is necessary to decide them now. Probably the exact questions which we now pass over will never arise again.
The judgment of the court below will be reversed, and cause remanded for further proceedings.
All the Justices concurring.