If Division Two.
BURGESS, J.
In 1887 Josiah Barker died seized of one hundred acres of land in Mississippi county, of the value of one thousand dollars, upon which he lived, as his homestead, with his wife, Elizabeth Wyatt (who afterwards intermarried with her co-defendant Asa Wyatt), and her minor children, to-wit, Ida, who afterwards intermarried with her co-plaintiff Charles Keene, Mary, who afterwards intermarried with her co-plaintiff Lee Bartoueh, and the' defendants Eddie Barker, Norah Barker and Sallie Barker.
In Eebruary, 1888, Robert Vowels was appointed administrator of Josiah Barker’s estate by the probate court of said county, and duly qualified as such, and took charge of the estate, which consisted of this land and a small amount of personal property. Demands aggregating $892.69 were allowed against the estate, but none of them were liens upon the land.
At the March term, 1891, of the probate court, an order was made as follows: “In the matter of the estate of Josiah Barker, deceased. Now comes Robert Vowels, administrator of the said estate, and states to the court that he has nothing to report and asks the court to continue said cause to the June term for final settlement, and the court being satisfied, orders that the same be and is hereby continued to the June term for final settlement.”
At the June term, 1891, instead of making final settlement, the administrator made his third annual settlement, upon which the court made the following order: “..... And the court being sufficiently advised, and from records in [4]*4this office is satisfied, that the administrator has not sufficient means in his hands to satisfy the claims against said estate, orders that the real estate belonging to said deceased be sold according to law to satisfy said indebtedness.” This order was not renewed at the September term, 1891, of the probate court.
The land was appraised at one thousand dollars before it was sold. Notice was published according to law, describing the land and stating the time, terms and place of sale, and that it would be sold subject to the homestead of the widow and minor children. In pursuance of the order and notice of sale the administrator sold the land to the defendants Asa and Elizabeth Wyatt, for the sum of one hundred dollars, and made report of the sale to the probate court, which said sale was at the Time term, 1891, approved. The administrator thereafter made- a deed to the purchasers, Asa and Elizabeth Wyatt, for the land, and they on the first day of April, 1895, sold and conveyed the same to their son, Charles Wyatt, for the consideration, as recited in the deed, of $1,000, and he on the same day borrowed $1,000 from the defendant Sonora Lindsay and gave a deed of trust on the land to secure its payment.
This suit is prosecuted for the purpose of having the sale of the land by the administrator set aside and declared void upon the ground that it was the homestead of the widow, and minor children at the time of the sale, and to have removed the cloud on the title to the land caused by said deeds. The plaintiffs were not in possession of the land at the time of the institution of this suit.
The defendants, Elizabeth J. Wyatt and Asa Wyatt, Charles Wyatt and Sonora Lindsay, answered jointly and admitted that Josiah Barker died about 1887, the owner of the land in question, and left as his widow, Elizabeth J. Barker, now the wife of Asa Wyatt, and his children as set forth in the [5]*5petition, and that said widow was entitled to a homestead in said land during her natural life.
The court below found for defendants and rendered judgment accordingly. Plaintiffs appeal.
The facts as stated being admitted, it is asserted by plaintiffs that the probate court had no power to make an order for the sale of the land for the payment of debts during the lifetime of the widow and the minority of the children. Upon the other hand it is contended by defendants that Under the homestead law then in force (Laws 1875, p. 60; Eevised Statutes 1879, p. 450), the homestead of decedent was liable to be sold for the payment of debts, subject to the right of dower in the widow, and the homestead right of the widow and children.
The act of March 18, 1875, section 2693, Eevised Statutes 1879, provides that: “If any such housekeeper or head of a family shall die, leaving a Avidow or any minor children, his homestead to the value aforesaid shall pass to and vest in such AvidoAV 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 in his lifetime, until the youngest child shall attain its legal majority, and until the death of such widow, and such homestead shall, upon the death of such housekeeper or head of a family, be limited to that period. 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, and the probate court having jurisdiction of the estate of the deceased housekeeper or head of a family shall, when necessary, ap-’ point three commissioners to set out such homestead to the person or persons entitled thereto.”
[6]*6It is perfectly clear from this section of the statute that it is only the homestead right that is-exempt from the payment of the debts of the deceased, and that after the expiration o£ this right by the express provisions of the statute, it is subject to “the laws relating to partition and sale for the payment of debts against the estate of the deceased.” ’
Under the statute, when Josiah Barker died the fee of the land in controversy was an -asset for the payment of the demands against his estate, and the sale being necessary for their payment, and the probate court having jurisdiction to make the order, the homestead was properly sold for that purpose, subject to occupancy by the widow and children, as their homestead. But it could not have been sold under attachment or execution against him during his lifetime for the obvious reason that it was within the statutory size and value allowed by statute to the head of a family for a homestead, and under such circumstances absolutely exempt from such processes. [Sec. 2689, R. S. 1879; Bank v. Guthrey, 127 Mo. 189; Macke v. Byrd, 131 Mo. 682.] But there was no such exemption from sale of the homestead after the death of Josiah Barker, subject to the widow’s right of dower in the homestead, and the homestead right of herself -and the minor children. When section 2689, supra, which exempts from attachment and execution the homestead of -every housekeeper or head of a family is considered in connection with section 2693, which provides that “all the right, title and interest of the deceased housekeeper.......in the premises, except the estate of the homestead thus- continued, shall be subject to the laws relating to........partition and sale for the payment of debts,” there can be no question we think, but that the homestead being within the statutory size and value, was subject to sale by an order of the probate court for the payment of demands against the estate, subject, however, to the conditions ■and limitations heretofore stated.
In Poland v. Vesper, 67 Mo. 727, the plaintiff sued in [7]
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If Division Two.
BURGESS, J.
In 1887 Josiah Barker died seized of one hundred acres of land in Mississippi county, of the value of one thousand dollars, upon which he lived, as his homestead, with his wife, Elizabeth Wyatt (who afterwards intermarried with her co-defendant Asa Wyatt), and her minor children, to-wit, Ida, who afterwards intermarried with her co-plaintiff Charles Keene, Mary, who afterwards intermarried with her co-plaintiff Lee Bartoueh, and the' defendants Eddie Barker, Norah Barker and Sallie Barker.
In Eebruary, 1888, Robert Vowels was appointed administrator of Josiah Barker’s estate by the probate court of said county, and duly qualified as such, and took charge of the estate, which consisted of this land and a small amount of personal property. Demands aggregating $892.69 were allowed against the estate, but none of them were liens upon the land.
At the March term, 1891, of the probate court, an order was made as follows: “In the matter of the estate of Josiah Barker, deceased. Now comes Robert Vowels, administrator of the said estate, and states to the court that he has nothing to report and asks the court to continue said cause to the June term for final settlement, and the court being satisfied, orders that the same be and is hereby continued to the June term for final settlement.”
At the June term, 1891, instead of making final settlement, the administrator made his third annual settlement, upon which the court made the following order: “..... And the court being sufficiently advised, and from records in [4]*4this office is satisfied, that the administrator has not sufficient means in his hands to satisfy the claims against said estate, orders that the real estate belonging to said deceased be sold according to law to satisfy said indebtedness.” This order was not renewed at the September term, 1891, of the probate court.
The land was appraised at one thousand dollars before it was sold. Notice was published according to law, describing the land and stating the time, terms and place of sale, and that it would be sold subject to the homestead of the widow and minor children. In pursuance of the order and notice of sale the administrator sold the land to the defendants Asa and Elizabeth Wyatt, for the sum of one hundred dollars, and made report of the sale to the probate court, which said sale was at the Time term, 1891, approved. The administrator thereafter made- a deed to the purchasers, Asa and Elizabeth Wyatt, for the land, and they on the first day of April, 1895, sold and conveyed the same to their son, Charles Wyatt, for the consideration, as recited in the deed, of $1,000, and he on the same day borrowed $1,000 from the defendant Sonora Lindsay and gave a deed of trust on the land to secure its payment.
This suit is prosecuted for the purpose of having the sale of the land by the administrator set aside and declared void upon the ground that it was the homestead of the widow, and minor children at the time of the sale, and to have removed the cloud on the title to the land caused by said deeds. The plaintiffs were not in possession of the land at the time of the institution of this suit.
The defendants, Elizabeth J. Wyatt and Asa Wyatt, Charles Wyatt and Sonora Lindsay, answered jointly and admitted that Josiah Barker died about 1887, the owner of the land in question, and left as his widow, Elizabeth J. Barker, now the wife of Asa Wyatt, and his children as set forth in the [5]*5petition, and that said widow was entitled to a homestead in said land during her natural life.
The court below found for defendants and rendered judgment accordingly. Plaintiffs appeal.
The facts as stated being admitted, it is asserted by plaintiffs that the probate court had no power to make an order for the sale of the land for the payment of debts during the lifetime of the widow and the minority of the children. Upon the other hand it is contended by defendants that Under the homestead law then in force (Laws 1875, p. 60; Eevised Statutes 1879, p. 450), the homestead of decedent was liable to be sold for the payment of debts, subject to the right of dower in the widow, and the homestead right of the widow and children.
The act of March 18, 1875, section 2693, Eevised Statutes 1879, provides that: “If any such housekeeper or head of a family shall die, leaving a Avidow or any minor children, his homestead to the value aforesaid shall pass to and vest in such AvidoAV 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 in his lifetime, until the youngest child shall attain its legal majority, and until the death of such widow, and such homestead shall, upon the death of such housekeeper or head of a family, be limited to that period. 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, and the probate court having jurisdiction of the estate of the deceased housekeeper or head of a family shall, when necessary, ap-’ point three commissioners to set out such homestead to the person or persons entitled thereto.”
[6]*6It is perfectly clear from this section of the statute that it is only the homestead right that is-exempt from the payment of the debts of the deceased, and that after the expiration o£ this right by the express provisions of the statute, it is subject to “the laws relating to partition and sale for the payment of debts against the estate of the deceased.” ’
Under the statute, when Josiah Barker died the fee of the land in controversy was an -asset for the payment of the demands against his estate, and the sale being necessary for their payment, and the probate court having jurisdiction to make the order, the homestead was properly sold for that purpose, subject to occupancy by the widow and children, as their homestead. But it could not have been sold under attachment or execution against him during his lifetime for the obvious reason that it was within the statutory size and value allowed by statute to the head of a family for a homestead, and under such circumstances absolutely exempt from such processes. [Sec. 2689, R. S. 1879; Bank v. Guthrey, 127 Mo. 189; Macke v. Byrd, 131 Mo. 682.] But there was no such exemption from sale of the homestead after the death of Josiah Barker, subject to the widow’s right of dower in the homestead, and the homestead right of herself -and the minor children. When section 2689, supra, which exempts from attachment and execution the homestead of -every housekeeper or head of a family is considered in connection with section 2693, which provides that “all the right, title and interest of the deceased housekeeper.......in the premises, except the estate of the homestead thus- continued, shall be subject to the laws relating to........partition and sale for the payment of debts,” there can be no question we think, but that the homestead being within the statutory size and value, was subject to sale by an order of the probate court for the payment of demands against the estate, subject, however, to the conditions ■and limitations heretofore stated.
In Poland v. Vesper, 67 Mo. 727, the plaintiff sued in [7]*7ejectment for the possession of a tract of land, under a title acquired under the following circumstances: William Vesper died intestate on the twenty-fifth day of March, 1875, seized of the land in contest, which was occupied by him and his family as a homestead. His widow and the defendant, his son, were his only heirs, the latter at his father’s death being twenty years of age. Debts were allowed against the estate amounting to several hundred dollars. The land was set off to the widow as a homestead, and afterwards, on the petition of the administrator, the court ordered the sale of the land, subject to the homestead for the payment of debts against the estate, and the plaintiff became the purchaser and x’eeeived the administrator’s deed therefor, and the only question for decision was whether the sale by the administrator passed the title to the purchaser. The court said: “By this section (above quoted) it is the homestead right which is exempt from the payment of debts of the deceased — nothing more. After that is set out there remains an estate in the land which descends to the heirs of the deceased, - and, by express provision of the statute, is subject 'to the laws relating to partition and sale for the payment of debts against the estate of the deceased.’ 'When this suit was instituted the widow was dead, and the defendant, the sole heir of the deceased, William Vesper, had attained his legal majority. The .object of the statute was to secure a home for the widow and minor heirs, and the sale of the land subject to the homestead right, could in no manner interfere with them in the enjoyment of that right. . The instruction given by the court for the defendant should have been refused, and that ashed by plaintiff given. It declared that the administrator’s deed conveyed the title to plaintiff, subject to the homestead right of the widow and the defendant, and that, the widow having died and defendant attained his majority before the commencement of the suit, plaintiff was entitled to recover.”
[8]*8That case was cited with approval in Murphy v. De-France, 105 Mo. 53; Schaffer v. Beldsmeier, 107 Mo. 316; and in Tucker y. Wells, 111 Mo. 404, and has never been overruled, or even criticised. It is on all fours with the case in hand, and must be regarded as controlling authority unless overruled. That the construction placed by it upon the statute is the proper and only logical one, seems to us to be too plain for controversy.
As the right of the wife and minor children to occupy the homestead is of certain duration, that is, during the lifetime of the widow and the minority of the children, there could have been no ground for the postponement of the sale of the homestead until the death of the widow, and until the youngest child became of age, on the ground that a sale under such circumstances would be likely to be made at a sacrifice; besides, the law never contemplated that an estate should be in process of settlement for say, possibly, twenty years or more, and until the youngest child became of age, or possibly fifty years during the lifetime of the widow, nor that there should be more than one administration upon the same estate, one or the other of which would have been absolutely necessary if the homestead was not subject to sale for the payment of debts-against the estate. That the law intended that the whole estate should be administered, including the homestead, subject, however, to the homestead rights of the widow and children, we think is clear.
There was no substantial evidence to sustain the charge of fraud, by Wyatt and wife, in the purchase of the land at the administrator’s sale, nor was the inadequacy in the price at which the land was purchased by them sufficient to justify setting the sale aside upon that ground.
Finding no reversible error in the record the judgment is affirmed.
Sherwood, P. J., and Gantt, J., concur.
[9]*9In Banc.
PER CURIAM.
This case was sent by Division Two of its own motion to Court in Banc, because of- its apparent conflict with some observations in the opinions of the court in Broyles v. Cox, 153 Mo. 242, and In re Powell’s Estate, 157 Mo. 151.
The facts which form the basis of this action occurred while the homestead law of 1875 was in force, and the case is of course governed by that law, while the facts which form the basis of the cases of Broyles v. Cox, and In re Powell’s Estate, supra, bring them within the provisions of the homestead law of 1875, 1879 and 1889, as amended by the Act of 1895, and in so far as the questions really involved in those cases are concerned, they are not in conflict with the case at bar, but the rulings in those cases to the effect that the homestead of a deceased housekeeper or head of a family, within the statutory size and limits, can not be sold under the homestead law of 1875, by an order of the probate court of the proper county, for the payment of the debts allowed against the estate of the deceased, subject to the homestead rights of the widow and minor children, are disapproved. With these suggestions, the foregoing opinion of Burgess, J., in Division Two is approved, and adopted by the Court in Bane.
Burgess, O. J., Sherwood, Robinson, Brace, Vallianl and Qanli, JJ., concur; Marshall, J., dissents.