HEFNER, J.
Robert A. Johnson died
testate seized of the west 70 feet of lots 1 to 6, inclusive, in block 15, Longview addition to the town of Carney, Okla., together with other prop'erty. These lots were not disposed of by the will. The remainder of his property, both real and personal, was devised and bequeathed one-third to Elnora Johnson, his surviving wife, and the remaining two-thirds to his children, all of whom were then adults. The property in the town of Carney was set aside by the pi’obate court to Elnora Johnson as a home-' stead. She also was awarded a family allowance of $50 per month pending administration. The assets of the estate were insufficient to pay the debts and family allowance. After the estate was closed, there remained due Elnora Johnson, on the family allowance, the sum of $626.68.
This action was brought by her as plaintiff in the district court of Lincoln county against Neda P. Hhgar and others, as heirs at law of Robert A. Johnson, deceased, to recover this amount, and prayed that the same be decreed a lien against the remainder in the homestead, and that the premises be sold subject to her homestead interest to satisfy the judgment. The trial court held in favor of plaintiff, and entered judgment accordingly.
Defendants urge that the judgment should be reversed for the reason that, under the statute, the remainder in the homestead is not subject to sale to satisfy a family allowance. In our opinion, defendants are correct in their contention. Under our statute, the homestead is not an asset in the hands of the administrator or executor, and not subject to administration. Plaintiff relies on the ease of In re Tittel’s Estate (Gal.) 72 Pac. 909. In that case, the Supreme Court of California held that the remainder in a homestead set apart to the surviving spouse might be sold to satisfy a balance due on the family allowance. We do not think the case applicable, because the opinion is based on a special statute of that state which provides :
“When property, other than the homestead selected and recorded during the lifetime of the decedent is set apart to the use of the family, in accordance with the provisions of this chapter, such property, if the decedent left a surviving spouse and no minor child, is the property of such spouse. If the decedent left also a minor child or children, the one-half of such property belongs to the surviving spouse, and the remainder to the child or in equal shares to the children, if there are more than one. If there is no surviving spouse, the whole belongs to the minor child or children. If '•he property set apart is a homestead, selected from the separate property of the decedent, the court can set it apart only for a limited period, to be designated in the order, and, subject to such homestead right, the property remains subject to administration.”
Under the California statute, where no homestead is selected and recorded by decedent during his lifetime, it is made the duty of the court to select and set aside a homestead to the survivor, and the remainder in the prop'erty so set aside becomes an asset in the hands of the administrator and subject to administration. We have no similar statute.
Section 1224, C. O. S. 1921, provides:
“Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead, which shall not, in any event, be subject to’administration proceedings, until it is otherwise disposed of according to law. * * *”
Section 1226, C. O. S. 1921, provides:
“The homestead is not subject to the payment of any debt or liability contracted by or existing against the husband and wife, or either of them, previous to or at the time of the death of such husband or wife, except such as are secured by lien thereon, as provided in the laws relating to homesteads.”
Section 1256, C. O. S. 1921, is as follows:
“All the property of a decedent, except as otherwise provided for the homestead and personal property set apart for the surviving wife or husband and minor child or children, shall be chargeable with the payment of the debts of the deceased, the expenses of the administration, and the allowance to the family. And the property, personal and real, may be sold as the court may direct, in the manner hereinafter prescribed. There shall be no priority as between personal and real property for the above purposes.”
It will thus be seen that, under express provisions of our statute, a homestead set apart by the court to the surviving spouse of deceased cannot be subjected to payment of debts of deceased. In this respect our statute differs materially from the California statute. It appears from the opinion, however, that under the statute of that state, where a homestead is selected and the selection recorded by decedent during his lifetime, it must be set apart as such to the surviving husband or wife, and in that event the remainder goes to the heirs free from debts of the deceased, but, in the event no homestead is selected, the statute makes it the duty of the court to select and set aside a homestead to the survivor, and in that event the remainder in the homestead so selected is subject to administration and may
be sold to pay debts of tbe deceased and the family allowance.
Under our statute, it is not necessary that the homestead be selected by the deceased during his lifetime in order that it may descend to his heirs subject to homestead rights free from debts.
In the case of Hadsall v. Hadsall (Neb.) 118 N. W. 331, the following rule is announced :
“The allowance made by the probate court to the widow of her deceased husband is a debt against the estate, which must be paid from the assets thereof. The allowance cannot be satisfied or made out of the homestead left by the deceased.”
In its opinion, the Nebraska court discusses the California case here relied on, and points out that it is based on a special statute in force in that state, and says that the opinion is not controlling for the reason that no such statute exists in Nebraska. The reasoning there employed applies here, as no statute similar to the California statute exists in this state.
What shall be set aside as a homestead, and what shall be allowed as a family allowance, and how the allowance shall be p'aid, depends entirely upon our constitutional and statutory provisions. When the homestead has been set aside, it is not an asset of the estate of the decedent that can in any way be administrated upon by the probate court.
Section 1256, supra, specifically provides that the property of the decedent, except the homestead and other property set apart to the surviving wife or husband, shall be chargeable with the payments of the debts of the deceased, expenses of administration, and the allowance to the family. We must look to the statute for authority to make the payment and how the same shall be made. Under these statutes, the expense of administration, the debts of the deceased, and the allowance to the family must be paid out of the assets of the estate subject to administration. There is no authority under the statute to pay it out of any other assets.
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HEFNER, J.
Robert A. Johnson died
testate seized of the west 70 feet of lots 1 to 6, inclusive, in block 15, Longview addition to the town of Carney, Okla., together with other prop'erty. These lots were not disposed of by the will. The remainder of his property, both real and personal, was devised and bequeathed one-third to Elnora Johnson, his surviving wife, and the remaining two-thirds to his children, all of whom were then adults. The property in the town of Carney was set aside by the pi’obate court to Elnora Johnson as a home-' stead. She also was awarded a family allowance of $50 per month pending administration. The assets of the estate were insufficient to pay the debts and family allowance. After the estate was closed, there remained due Elnora Johnson, on the family allowance, the sum of $626.68.
This action was brought by her as plaintiff in the district court of Lincoln county against Neda P. Hhgar and others, as heirs at law of Robert A. Johnson, deceased, to recover this amount, and prayed that the same be decreed a lien against the remainder in the homestead, and that the premises be sold subject to her homestead interest to satisfy the judgment. The trial court held in favor of plaintiff, and entered judgment accordingly.
Defendants urge that the judgment should be reversed for the reason that, under the statute, the remainder in the homestead is not subject to sale to satisfy a family allowance. In our opinion, defendants are correct in their contention. Under our statute, the homestead is not an asset in the hands of the administrator or executor, and not subject to administration. Plaintiff relies on the ease of In re Tittel’s Estate (Gal.) 72 Pac. 909. In that case, the Supreme Court of California held that the remainder in a homestead set apart to the surviving spouse might be sold to satisfy a balance due on the family allowance. We do not think the case applicable, because the opinion is based on a special statute of that state which provides :
“When property, other than the homestead selected and recorded during the lifetime of the decedent is set apart to the use of the family, in accordance with the provisions of this chapter, such property, if the decedent left a surviving spouse and no minor child, is the property of such spouse. If the decedent left also a minor child or children, the one-half of such property belongs to the surviving spouse, and the remainder to the child or in equal shares to the children, if there are more than one. If there is no surviving spouse, the whole belongs to the minor child or children. If '•he property set apart is a homestead, selected from the separate property of the decedent, the court can set it apart only for a limited period, to be designated in the order, and, subject to such homestead right, the property remains subject to administration.”
Under the California statute, where no homestead is selected and recorded by decedent during his lifetime, it is made the duty of the court to select and set aside a homestead to the survivor, and the remainder in the prop'erty so set aside becomes an asset in the hands of the administrator and subject to administration. We have no similar statute.
Section 1224, C. O. S. 1921, provides:
“Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead, which shall not, in any event, be subject to’administration proceedings, until it is otherwise disposed of according to law. * * *”
Section 1226, C. O. S. 1921, provides:
“The homestead is not subject to the payment of any debt or liability contracted by or existing against the husband and wife, or either of them, previous to or at the time of the death of such husband or wife, except such as are secured by lien thereon, as provided in the laws relating to homesteads.”
Section 1256, C. O. S. 1921, is as follows:
“All the property of a decedent, except as otherwise provided for the homestead and personal property set apart for the surviving wife or husband and minor child or children, shall be chargeable with the payment of the debts of the deceased, the expenses of the administration, and the allowance to the family. And the property, personal and real, may be sold as the court may direct, in the manner hereinafter prescribed. There shall be no priority as between personal and real property for the above purposes.”
It will thus be seen that, under express provisions of our statute, a homestead set apart by the court to the surviving spouse of deceased cannot be subjected to payment of debts of deceased. In this respect our statute differs materially from the California statute. It appears from the opinion, however, that under the statute of that state, where a homestead is selected and the selection recorded by decedent during his lifetime, it must be set apart as such to the surviving husband or wife, and in that event the remainder goes to the heirs free from debts of the deceased, but, in the event no homestead is selected, the statute makes it the duty of the court to select and set aside a homestead to the survivor, and in that event the remainder in the homestead so selected is subject to administration and may
be sold to pay debts of tbe deceased and the family allowance.
Under our statute, it is not necessary that the homestead be selected by the deceased during his lifetime in order that it may descend to his heirs subject to homestead rights free from debts.
In the case of Hadsall v. Hadsall (Neb.) 118 N. W. 331, the following rule is announced :
“The allowance made by the probate court to the widow of her deceased husband is a debt against the estate, which must be paid from the assets thereof. The allowance cannot be satisfied or made out of the homestead left by the deceased.”
In its opinion, the Nebraska court discusses the California case here relied on, and points out that it is based on a special statute in force in that state, and says that the opinion is not controlling for the reason that no such statute exists in Nebraska. The reasoning there employed applies here, as no statute similar to the California statute exists in this state.
What shall be set aside as a homestead, and what shall be allowed as a family allowance, and how the allowance shall be p'aid, depends entirely upon our constitutional and statutory provisions. When the homestead has been set aside, it is not an asset of the estate of the decedent that can in any way be administrated upon by the probate court.
Section 1256, supra, specifically provides that the property of the decedent, except the homestead and other property set apart to the surviving wife or husband, shall be chargeable with the payments of the debts of the deceased, expenses of administration, and the allowance to the family. We must look to the statute for authority to make the payment and how the same shall be made. Under these statutes, the expense of administration, the debts of the deceased, and the allowance to the family must be paid out of the assets of the estate subject to administration. There is no authority under the statute to pay it out of any other assets. The entire homestead is set aside under our Constitution and under our laws for the use of the survivor, and shall not in any event be subject to administration proceedings, nor to the payment of the debts of the decedent, nor to the payment of the expenses of administration, nor to the payment of the family allowance. Suppose this proceeding had been brought to subject the homestead to the payment of the debts of the decedent. In other words, could the homestead, subject to the survivor’s homestead right, be sold to pay a debt of the decedent? Or could it be sold to pay the expenses of administration? We say ho. Then if it cannot be.sold for these purposes, it cannot be sold to pay the widow’s allowance because the allowance is paid out of the same assets as the debts of the decedent and expenses of administration. Since the homestead is not subject to administration, no part of it can be subjected to the payment of the debts of the decedent, nor to the payment of the expenses of the administration, nor to the payment of the widow’s allowance. Since in this proceeding it is sought to subject the remainder in the homestead to the payment of the widow’s allowance, it might seem that it would be just to the widow to permit this to be done; but if it is permitted to be done, it must follow that a creditor of the estate could bring a proceeding and subject the remainder in the homestead to the payment of his claim, and it would also be subject to the payment of the expenses of administration. Under our Constitution and statutes, the entire homestead is set apart to the survivor. It is not intended that the survivor can be menaced in the free and full use of the same.
The judgment is reversed and the cause remanded, with directions to enter judgment in favor of the defendants.
LESTER, C. X, CLARK, V. C. X, and RILEY, CULLISON, SWINDALL, ANDREWS, and MeNEILL, J.T., concur. KORNEGAY, X, dissents.