McCOURT, J.
The statutory provision for setting apart to the husband the exempt property of the estate of his deceased wife was incorporated into Section 1234, Or. L., by Chapter 37 of Laws of 1919. The contention made and rejected by this court in the cases of Wycoff v. Snapp, 72 Or. 234 (143 Pac. 902), and In re Frizzell’s Estate, 95 Or. 681 (188 Pac. 707), Section 1234, Or. L., applies to personal property of the estate only, and does not include the real property embraced in the family homestead, is renewed in this case. While those cases are decisive of the point, we have again carefully examined [36]*36the question, and we are satisfied that the construction given the statute in the cases mentioned is correct and is in harmony with the manifest purpose of the homestead ' statute. The conclusions there reached and here reaffirmed are supported by many decisions of courts of last resort of other states in cases construing analogous statutes.
It is also insisted that conceding the correctness of the construction there placed upon Section 1234, Or. L., in connection with the statute providing for a family homestead, as those statutes existed at the time of the decisions mentioned, still that construction cannot prevail in view of the amendment of the homestead statute, Laws of 1919, Chapter 112, for the reason that the last-mentioned amendatory act was enacted at a later date in the same legislative session that granted to a surviving husband the right to have set apart to him the exempt property of the estate of his deceased wife. The argument is advanced that the amended homestead statute expressly creates a right in the owner of the homestead property to freely dispose of the same by will, and that the later act is inconsistent with the earlier act, Section 1234, Or. L., passed at the same legislative session and by implication repealed the same in respect to homestead property. By way of enforcing the argument, attention is directed to Chapter 351, Laws of 1919, which declares that a married woman may by will dispose of any real estate held in her own right, subject to any right which her husband may have as tenant by curtesy, and that every person of the age of twenty-one years or upward, may devise all of his estate, real and personal, saving to the widow her dower. The statute last mentioned constitutes a re-enactment of [37]*37statutory provisions that have been in force throughout the life of the state and which were fully considered by this court in deciding the case, In re Frizzell’s Estate.
Prior to the 1919 enactment, the homestead statute did not in any way control the descent of the real property embraced in the homestead. Under that statute such real property passed to those designated in the general statute regulating the descent of real property, unless set apart to the widow by' the probate court as exempt property of the estate, as authorized and commanded by Section 1234, Or. L.: Wycoff v. Snapp, 72 Or. 234 (143 Pac. 902); In re Frizzell’s Estate, 95 Or. 681 (188 Pac. 707).
That statute contained no provision concerning testamentary disposition of the homestead property, but this court held in In re Frizzell’s Estate that the power of testamentary disposition is subordinaté to the authority conferred by statute on the probate court to set apart as exempt property the homestead for the use of the widow and minor children.
Mr. Justice Bennett, speaking for the court, at page 688 of the opinion, said:
“We think a statute intended for so just and benecial a purpose should be liberally construed in the interests of the widow and the children. It follows that any devise by the husband and father, attempting to qonvey the property to other persons by will, to take effect after his death, is void as against their claim to have the property set aside to them.”
The rule expressed in the above quotation is abundantly supported by authority: Alexander on Commentaries on Wills, Yol. 1, § 252; Yol. 3, § 1424, Thompson on Homestead and Exemptions, § 544; Waples on Homestead and Exemptions, p. 446; Sulzberger v. Sulzberger, 50 Cal. 385; Estate [38]*38of Lahiff, 86 Cal. 151 (24 Pac. 850); Estate of Walkerly, 108 Cal. 627, 655 (41 Pac. 772, 49 Am. St. Rep. 97); Estate of Huelsman, 127 Cal. 275 (59 Pac. 776); Estate of Bump, 152 Cal. 274 (92 Pac. 643); Otto v. Long, 144 Cal. 144 (77 Pac. 885); In re Kennedy Estate, 157 Cal. 517 (108 Pac. 280, 29 L. R. A. (N. S.) 428); In re Davis Estate, 69 Cal. 458, 460 (10 Pac. 671); In re James Estate, 38 S. D. 107, 112; Bell v. Bell, 84 Ala. 64 (4 South. 189).
The amended homestead act, Laws of 1919, Chapter 112, does not purport to change or prescribe the course of descent of a family homestead and does not contain any grant of arbitrary or other right or power to dispose of the homestead by will. It merely exempts from the debts of the owner the homestead property in the hands of particular heirs or devisees designated in the statute, so that the rule declaring that the right of the widow to have the homestead property set apart to her is paramount to the right of testamentary disposition which prevailed under the former enactment, applies with equal force to the present statute. The power of testamentary disposition of the homestead property conferred upon a married woman by statute is subordinate to the authority conferred upon the probate court to set apart the property to her surviving husband for his support and that of the minor children.
But it is said that inasmuch as Mary E. Leet acquired the property before the statute authorized exempt property to be set apart to a surviving husband, she became vested with the right to dispose of the property by will, free from the requirements of the later statute to set the same apart to appellant. [39]*39It is further asserted that decedent’s right of testamentary disposition of the property was a natural right, inherent in the ownership of the nronerty and one that cannot be restricted or taken away by legislative enactment subsequent to her acquisition of the property.
The right to make a testamentary disposition of property is not an inherent, natural or constitutional right, but is purely a creation of statute and within legislative control: 28 R. C. L. 68, 69; 40 Cyc. 997; Church’s Probate Law and Practice, Vol. 3, p. 2069; United States v. Perkins, 163 U. S. 625 (41 L. Ed. 287, 16 Sup. Ct. Rep. 1073); Irwin v. Rogers, 91 Wash. 284 (157 Pac. 690, L. R. A. 1916E, 1130).
Likewise the right to take by devise or inheritance exists by grace of the statute: Otto v. Long, 144 Cal. 144, 147 (77 Pac. 885); Estate of Bump, 152 Cal. 274, 277 (92 Pac. 643).
In the case of Otto v. Long, above cited, Mr. Justice Shaw, speaking for the court, said:
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McCOURT, J.
The statutory provision for setting apart to the husband the exempt property of the estate of his deceased wife was incorporated into Section 1234, Or. L., by Chapter 37 of Laws of 1919. The contention made and rejected by this court in the cases of Wycoff v. Snapp, 72 Or. 234 (143 Pac. 902), and In re Frizzell’s Estate, 95 Or. 681 (188 Pac. 707), Section 1234, Or. L., applies to personal property of the estate only, and does not include the real property embraced in the family homestead, is renewed in this case. While those cases are decisive of the point, we have again carefully examined [36]*36the question, and we are satisfied that the construction given the statute in the cases mentioned is correct and is in harmony with the manifest purpose of the homestead ' statute. The conclusions there reached and here reaffirmed are supported by many decisions of courts of last resort of other states in cases construing analogous statutes.
It is also insisted that conceding the correctness of the construction there placed upon Section 1234, Or. L., in connection with the statute providing for a family homestead, as those statutes existed at the time of the decisions mentioned, still that construction cannot prevail in view of the amendment of the homestead statute, Laws of 1919, Chapter 112, for the reason that the last-mentioned amendatory act was enacted at a later date in the same legislative session that granted to a surviving husband the right to have set apart to him the exempt property of the estate of his deceased wife. The argument is advanced that the amended homestead statute expressly creates a right in the owner of the homestead property to freely dispose of the same by will, and that the later act is inconsistent with the earlier act, Section 1234, Or. L., passed at the same legislative session and by implication repealed the same in respect to homestead property. By way of enforcing the argument, attention is directed to Chapter 351, Laws of 1919, which declares that a married woman may by will dispose of any real estate held in her own right, subject to any right which her husband may have as tenant by curtesy, and that every person of the age of twenty-one years or upward, may devise all of his estate, real and personal, saving to the widow her dower. The statute last mentioned constitutes a re-enactment of [37]*37statutory provisions that have been in force throughout the life of the state and which were fully considered by this court in deciding the case, In re Frizzell’s Estate.
Prior to the 1919 enactment, the homestead statute did not in any way control the descent of the real property embraced in the homestead. Under that statute such real property passed to those designated in the general statute regulating the descent of real property, unless set apart to the widow by' the probate court as exempt property of the estate, as authorized and commanded by Section 1234, Or. L.: Wycoff v. Snapp, 72 Or. 234 (143 Pac. 902); In re Frizzell’s Estate, 95 Or. 681 (188 Pac. 707).
That statute contained no provision concerning testamentary disposition of the homestead property, but this court held in In re Frizzell’s Estate that the power of testamentary disposition is subordinaté to the authority conferred by statute on the probate court to set apart as exempt property the homestead for the use of the widow and minor children.
Mr. Justice Bennett, speaking for the court, at page 688 of the opinion, said:
“We think a statute intended for so just and benecial a purpose should be liberally construed in the interests of the widow and the children. It follows that any devise by the husband and father, attempting to qonvey the property to other persons by will, to take effect after his death, is void as against their claim to have the property set aside to them.”
The rule expressed in the above quotation is abundantly supported by authority: Alexander on Commentaries on Wills, Yol. 1, § 252; Yol. 3, § 1424, Thompson on Homestead and Exemptions, § 544; Waples on Homestead and Exemptions, p. 446; Sulzberger v. Sulzberger, 50 Cal. 385; Estate [38]*38of Lahiff, 86 Cal. 151 (24 Pac. 850); Estate of Walkerly, 108 Cal. 627, 655 (41 Pac. 772, 49 Am. St. Rep. 97); Estate of Huelsman, 127 Cal. 275 (59 Pac. 776); Estate of Bump, 152 Cal. 274 (92 Pac. 643); Otto v. Long, 144 Cal. 144 (77 Pac. 885); In re Kennedy Estate, 157 Cal. 517 (108 Pac. 280, 29 L. R. A. (N. S.) 428); In re Davis Estate, 69 Cal. 458, 460 (10 Pac. 671); In re James Estate, 38 S. D. 107, 112; Bell v. Bell, 84 Ala. 64 (4 South. 189).
The amended homestead act, Laws of 1919, Chapter 112, does not purport to change or prescribe the course of descent of a family homestead and does not contain any grant of arbitrary or other right or power to dispose of the homestead by will. It merely exempts from the debts of the owner the homestead property in the hands of particular heirs or devisees designated in the statute, so that the rule declaring that the right of the widow to have the homestead property set apart to her is paramount to the right of testamentary disposition which prevailed under the former enactment, applies with equal force to the present statute. The power of testamentary disposition of the homestead property conferred upon a married woman by statute is subordinate to the authority conferred upon the probate court to set apart the property to her surviving husband for his support and that of the minor children.
But it is said that inasmuch as Mary E. Leet acquired the property before the statute authorized exempt property to be set apart to a surviving husband, she became vested with the right to dispose of the property by will, free from the requirements of the later statute to set the same apart to appellant. [39]*39It is further asserted that decedent’s right of testamentary disposition of the property was a natural right, inherent in the ownership of the nronerty and one that cannot be restricted or taken away by legislative enactment subsequent to her acquisition of the property.
The right to make a testamentary disposition of property is not an inherent, natural or constitutional right, but is purely a creation of statute and within legislative control: 28 R. C. L. 68, 69; 40 Cyc. 997; Church’s Probate Law and Practice, Vol. 3, p. 2069; United States v. Perkins, 163 U. S. 625 (41 L. Ed. 287, 16 Sup. Ct. Rep. 1073); Irwin v. Rogers, 91 Wash. 284 (157 Pac. 690, L. R. A. 1916E, 1130).
Likewise the right to take by devise or inheritance exists by grace of the statute: Otto v. Long, 144 Cal. 144, 147 (77 Pac. 885); Estate of Bump, 152 Cal. 274, 277 (92 Pac. 643).
In the case of Otto v. Long, above cited, Mr. Justice Shaw, speaking for the court, said:
“The persons who, by grace of the statute, are designated or constituted heirs or devisees, have no ground for a claim that they are deprived of their property without due process of law, merely because the same statutory law which provides that they shall inherit and that property may be disposed of by will has also provided that, notwithstanding such heirship or testamentary disposition, the court having jurisdiction of the estate of the deceased before distribution may under certain conditions, to be by it determined without notice, set apart some or all of the estate absolutely to the widow, and no appeal is allowed from the order. They take the estate subject to that very contingency, 'and they are not deprived of it in the sense intended by the constitutional inhibition when that contingency occurs.”
[40]*40In the case note to the case of Nunnemacher v. State, 9 L. R. A. (N. S.), p. 121, one of the very few cases that hold that the right to take property by will or inheritance is a natural right, the editor makes the following observation:
“The proposition enunciated by the Wisconsin court, that the right to take property by will or inheritance is a natural right, seems to be entirely opposed to the whole course of legal doctrine. Not a single other legal authority can be found to support it, and it is' opposed to the views of all historians of law, and of all economic writers. Indeed, the entire body of the law of descent and distribution seems to have been built upon the opposite conclusion. For example, in the absence of an enabling statute, neither aliens nor bastards can inherit property. As a matter of fact, the cases which uphold the proposition that the right to take property by will or inheritance is- purely the creature of municipal law are so numerous that no attempt is here made to collate them all. ’ ’
Some question is made that the course of action pursued by appellant between the time of the death of Mary E. Leet and the filing of his petition to have a homestead set apart to him estops him from asserting his claim to a homestead. The elements essential to constitute an estoppel are not present in this case. No one was induced to alter his position to his injury by appellant’s action, or misled into such action that he will suffer injury if appellant is allowed to change his attitude.
It is also contended: (a), that by ceasing to make his actual abode on the homestead premises, appellant abandoned his right- to claim a homestead therein; and (b), that an election to take under the will resulted from appellant’s acceptance of the bequest of ten dollars and the receipt by him, with[41]*41out objection, of one half of the rentals from the homestead property for one year.
In substance those latter contentions were made in the case of Krieger v. Iltz, consolidated with this case for hearing, the opinion in which is filed here7 with. In that opinion those contentions are discussed and fully considered, and the questions raised thereby are decided against respondents.
The judgment and decree of the Circuit Court is reversed and the case remanded, with directions to the Circuit Court to enter an order setting apart to appellant the real property described in appellant’s petition as exempt property of the estate of Mary E. Leet, deceased. Reversed and Remanded.