The opinion
DISSENTING- OPINION.
BOND, J
Being unable to concur in the learned opinion of the majority of this division of the court, I hereby set forth the grounds of my dissent.
John W. Lewis died on the 22d of November, 1896. At the time of bis death be owned the land in controversy and used it as a homestead. He left a widow, Margaret J. Lewis, and six minor children. During the course of administration of bis estate in the probate court of Crawford county and upon the petition of the widow, a homestead was set apart upon this land: and due report thereof made by the commissioners appointed for that purpose to the probate court, which was confirmed. At the same term of the court a sale of the land was regularly adjudged, subject to the homestead rights of the widow and minor children, for the payment of debts. Report thereof was made by the administrator, whereupon the court approved the same and directed him to execute a deed conveying the lands in controversy to S. H. Headlee, purchaser, subject to the homestead, rights of the widow and minor children. Th is was done. No appeal was taken from that decree. Whatever title the purchaser acquired has been devolved upon the plaintiffs in this suit, which was brought in February, 1909. the widow of John W. Lewis, deceased, has now died. All of the six children left by him are defendants to this action and were of age at the institution of this suit, except Eugene Lewis, who was then twenty years of age, and John O. Lewis, who was then eighteen years of age. Only these two minor children then resided on the lands, in controversy.
*585 This action was brought in 1909 by plaintiffs, in virtue of the title acquired by them through the administrator’s deed, to fix and determine the conflicting -claims of'themselves and the heirs of John W. Lewis’ to the title of the lands in suit. The two heirs who were then minors appeared by their guardian ad litem, and averred that they, together with the other adult defendants, are the owners in fee simple of the said' above described lands, and denied that plaintiffs had any right or title thereto. The four adult heirs appeared and filed a similar answer. The case was tried by the court without the aid of a jury. At the' conclusion of the evidence, thé court, over the objection and exception taken at the time by plaintiffs (appellants), refused the following instruction requested by them.
“The court declares the law, that the-homestead of the head of a family under the statutes in force in 1896, was a personal privilege or exemption from levy and sale under execution, and which followed the homestead when converted into money and reinvested; and that on the death of the head of the family the homestead passed by virtue of the provisions of the statute to the widow, or widow and minor children, as the case might be, the widow taking the life estate, contingent on remarriage, and the minors taking an estate for years, that is to say during minority; this homestead estate of the widow and minors being exempted from sale by order of the probate court for the payment of the debts of the decedent, unless legally charged thereon by him during his lifetime, but the fee passed to the heirs of the deceased homesteader under the Statute of Descents and Distribution, subject to the homestead rights of the widow and minor children and to payment of the debts of the decedent.”
The court found the issues for the defendants and rendered judgment accordingly, from which plaintiffs have appealed to this court, assigning for error the refusing of the instruction requested by them.
*586 I,
The only question presented is the ruling of the trial court in refusing the instruction set out in the statement and adjudging the fee simple title to the land to be in defendants.
In this, case, the rights of the parties are determinable under the provisions of the Homestead Act of AotseStead 1895 (Laws 1895, p. 185; R. S. 1899, sec. 3620), which section has now been substituted by section 6708, Revised Statutes. 1909, hut the form in which it originally stood must control the decision of this case, since the death of John W. Lewis took place before the amendment of 1907 (Laws 1907, p. 301), whereby the statute contained in the present revision was substituted for that contained in the former revision; and it has been uniformly held in this State that homestead rights and the relations of all parties thereto are governed by the law existing on that subject at the time of the death of the head of the family. [Brewington v. Brewington, 211 Mo. 48 ; Bushnell v. Loomis, 234 Mo. 1 . c. 385, 386, and cases cited; Linville v. Hartley, 130 Mo. 1 . c. 256.]
The important periods of the enactments of homestead laws in Missouri have been 1865, 1875 and 1895. Unimportant variations and changes have been made in such acts in the intervals between those three times, but the distinctive characteristics of the homestead laws and their essential variations from one another have been marked by the enactments made in the years above stated. But it is only necessary to determine the rights of the parties in this case to refer to the law on the subject of homesteads as enacted by the Legislature in 1895, since the facts of tins case bring it within the application of that statute. In construing that act, this court has held that the right of the husband to *587 a homestead daring Ms life is a mere exemption as to subsequent indebtedness and is not an estate in any sense and may be aliened by the joint deed of the husband and wife (Snodgrass v. Copple, 203 Mo. 480 ; 21 Cyc. 460), and that after the death of the husband a life estate, determinable by her marriage, is vested in Ms surviving widow and a right of joint occupancy of the homestead is vested in bis minor children until their arrival at the age of twenty-one years. [Bushnell v. Loomis, 234 Mo. 1 . c. 386.]
Tbe statute requiring interpretation in tMs ease is, to-wit:
“If any such housekeeper or bead of a family shall die, leaving a widow or any minor children, bis 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 in bis lifetime, until the youngest child 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; and the probate court having jurisdiction of the estate of the deceased housekeeper, or bead of a family, shall, when necessary, appoint three commissioners to set out such homestead to the person or persons entitled thereto.” [R. S. 1899, see. 3620; Laws 1895, p. 185.]
The question arising under this statute is whether an indebtedness arising subsequent to bis homestead in the land in dispute, after due allowance in the probate court,was a legal basis of the order of sale regularly made by that court of the land of the deceased *588 subject to the rights of Homestead of the widow andi minor children? The ábfove statute 'clearly excludes: the right of. any subsequent' creditor to compel a sale through the probate court of the homestead itself, hut it does not in terms forbid a sale of the property, subject to the full rights of the homesteads therein.
In the case at bar no attempt whatever was madé to affect or prejudice the rights of the widow, then alive, or .the minor children to the rights of a homestead in the land in question. Hence, the order of the probate court did' not contravene the language nor the purpose of the above statute to provide a homestead for the widow' and minor children. It simply undertook to afford creditors, having legal demands; the right to satisfaction out of the property left by the deceased after the expiration of all homestead rights therein given by the statute.
The Statutes of Descents and Distribution,' which have been a part of our laws since the organization of the State, provide that when the owner of any'real estate of inheritance dies “it shall descend . . . subr ject to the payment of his debts” (italics ours) in a prescribed course. [E. S. 1909, sec. 332.] As to the meaning of that section, the law is:
• “But the estate does not vest in them absolutely: It is subject to be divested whenever the land is taken into the custody of the courts and subjected to the payment of the debts of the deceased. The law appropriates the title to the land, not as that of the heirs, but as it came directly from the ancestor. ’ ’ [Aubuchon v. Aubuchon, 133 Mo. 1 . c. 265.]
Unless that statute is to be abrogated, the creditor in the case at bar had a right to enforce his, demand against the estate of John W. Lewis in the land in question, which remained after the extinction of all homestead rights. The Homestead Act under review does not purport to repeal the general statutes governing the descent of real estate. It simply exempts, dur *589 ing their continuance, the determinable life estate in the widow and the estate for years in the minors.
Clearly, the Homestead Act, by the utmost stretch, does not protect the vested remainder in the lands Homestead Act: Vested Remainders. which takes effect as a fee when the parties entitled to the homestead have lost that right. To do that a new and different enactment would have to be made by the Legislature. This has not been done.
Neither does the Homestead Act repeal the Statutes of Descents and Distribution by repugnancy. For the Homestead Act was not enacted, and does not purport, to exempt a vested remainder which only takes effect after the cessation of the homesteads. Yet it was this remainder alone which the probate court subjected to the allowed demands against the estate of its owner. Its action was therefore in perfect accord with the Homestead Act and in no wise repugnant or inconsistent therewith. That all estates in remainder are conveyable by the owner and available to his creditors is uncontrovertible. [R. S. 1909, secs. 2787, 2192 and 2194; White v. McPheeters, 75 Mo. 286 ; Brown v. Fulkerson, 125 Mo. 400 ; Godman v. Simmons, 113 Mo. 122 ; Burk v. Pence, 206 Mo. 339 .]
Neither does the Homestead Act repeal the Statutes of Descent and Distribution of vested remainders therein, by furnishing a substitutionary law covering-such estates. For the slightest inspection shows that the Homestead Act does not pretend to deal with the vested remainders in the land upon which the homestead is set apart. It concerns itself solely with the creation of the homestead and its protection as such, and does not undertake in any way to dispose of the ulterior estates in the land.
Now, there is no such thing as a repeal of a statute under the laws of this State, except in one of the ways above referred to. As none of them were employed, it follows -that the Homestead Act did not repeal the *590 statutes of descent governing the devolution of the vested remainder accruing after the lapse of the homestead, and that the plaintiffs having bought only this remainder are entitled to its enjoyment after the expiration of the preceding homestead, which was neither bought no.r claimed, and which they did not seek to recover. Confusion of thought on this subject has sometimes occurred from the failure to hear in mind the separate estates of homesteads and the succeeding remainder in fee. The o’wners of the homestead have the estate for life or years. The remainderman has the subsequent fee. These two complementary interests make up the'entire estate in fee. The-fee of lands is never in suspension when there is a preceding life estate or one for years. The fee cannot he in abeyance hut is always vested coincidentally with the prior estates, either in the rémaindermen or reversioners by law or by act of the parties. [16 Cyc. 649, subsec. 4; 2 Blackstone, 168; 4 Kent Com. 248.] Hence the uniform ruling, that upon the death of the housekeeper or head of a family, the homestead passes to his widow and minor children and the fee in remainder vests in his heirs, including adults or minors as may happen. The correct interpretation of the Homestead Act is plain on its face. It simply exempts from sale for subsequent debts, the homestead itself, during the life of the husband and wife, and, after the death of the husband, during the life of the wife until marriage and during the minority of the children. It has no other object nor effect. No further purpose can be ascribed to it under the terms used therein. For it cannot be construed as a devolution of the fee remaining when the homestead is gone, except by interpolating words of wholly different meaning from those contained in it. Had the Legislature intended to protect remaindermen entitled as such, after the homestead should fall into the general estate of the decedent, it would have been a most anomalous policy, and con- *591 Irary to the very scheme upon which homestead laws are framed, which is the protection of widows and minors; and such persons, after the extinction of the homestead, have necessarily ceased to he either widows or minors. Wherefore, it is not perceivable why they should he more entitled to inherit the property of their ancestor free from any liability for his debts than any other adult heirs would be so entitled in cases ■of estates descended to them wherein no homestead had existed. At least, the Legislature have expressed no such discrimination in the above act.
II.
The learned opinion of the majority of the court xefers to some cases in this State and elsewhere in .support of its conclusions, that after the expiration of Sale of :Homestead: Former .Decisions. the homestead in the lands, the title in fee was properly decreed to- be in the adnlt heirs of the deceased, thereby exempting it from his debts. These may be noticed. The earliest case is Skouten v. Wood, 57 Mo. 380 . Judge NaptoN ruled in that case that perforce the terms of the 5th section of the Vermont Homestead, Act (which had been literally copied into the Missouri act, and hence construed.as in Vermont) the widow of the deceased husband who was himself seized in fee,, took likewise a fee in the homestead because the act in terms so provided, to-wit: “And such widow and children, respectively, shall take the same estate therein of which the deceased died seized.” (Italics ours.) [Ibid., p. 381.] So strongly and forcefully did Judge Naptost show the irrationality of the consequence (which could not be judicially escaped under the very terms of the Homestead Act which had been imported with the construction.-.given :it in the home state) that the Legislature at- once .repealed and struck out the terms “same estate”., descriptive of the character of homestead vested in the *592 .widow contained' in tlie act, and adopted what was thence forth the Homestead Act of 1875, and to prevent any further judicial nonconformity with its intent inserted in the new act a provision that the estate subject to the homestead when that expired should go according to the statutes of descents. [Laws 1875, p. 60.] Following the law as thus changed, came the decisions in Division One. [Broyles v. Cox, 153 Mo. 242 , and In re Powell’s Estate, 157 Mo. 151 .] The rulings in these two cases were to the effect that the Homestead Act as amended prevented the sale of the lands subject to it until the homestead expired. Division Two, however, on the next presentation of the question, took it up and in an unanimous decision expressed a contrary view, and after a full review of the authorities refeiwed its opinion to Banc in order that the law might he harmonized and clarified ■ on this subject. [Keene v. Wyatt, 160 Mo. 1 .] Thereupon, the matter was considered in Banc, which, in an opinion concurred in by all the judges except Mabshall, J., adjudged that the cases of Broyles, v. Oox and In re Powell’s Estate, supra, really turned upon a construction of the Homestead Act of 1895, and hence the observations in those two opinions in reference to the preceding Homestead .Act of 1875 were mere obiter dicta-, and added:
“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, cannot 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 Bubgess, J., in Division Two, is approved, and adopted by the Court in Banc. Burgess, G. J., Sherwood, Robinson, Brace, Valliant and Gantt, JJ., concur;'Marshall, J., dissents.
*593 'Hence, it must be clear that, except Marshall, J., the entire court adjudged the salability of the remainder in fee, subject to the homestead under the Homestead Act of 1875. The interpretation of the Homestead Act of 1875 having been thus put at rest, the next decision was rendered under the Homestead Act of 1895 (being the one presented for review in the present case). In that case (Balance v. Gordon, 247 Mo. 119 ), the opinion was written by the learned writer of the opinion of the majority in the present case. The facts as we gather them are: The householder devised his two lots to his wife for life with remainder to one of his children. He died in 1898. In the course of administration of his estate it is said, “that the lots were sold by an order of the probate court and were sold to pay the Taylor debt and said costs.” Administrator’s deed was made to the purchasers who afterwards acquired the widow’s interest by deed. A suit was brought by the devisee under the will to establish her title thereunder, when the foregoing facts and others were set up by the defendants who represented the purchaser under the administrator’s deed and the grantee under the deed from the widow. It was held that the sale ordered by the probate court was void, and that the plaintiff was entitled to recover the fee after the expiration of the life estate of the widow. It is not necessary that an attempt should be made to sustain that ruling on the narrow ground that there was technical error in the form of the order of sale made by the probate court, in that it should have required the sale of the lands to be made subject to the homestead rights of the widow and minor child. While this was a formal error, yet it did not affect the. rights of the parties under that sale, since the administrator’s deed should have been held good as to the remainder and not good as to the preceding homestead. Evidently it was the intention of the opinion in Balance v. Gordon, *594 supra, to treat the question on the broad ground that the administrator’s deed was void both as to the remainder and the homestead estates, and this was the view expressed in the opinion, and to sustain which it construed the Homestead Act of 1895 as constituting a direct legislative repeal of the general statutes of descent and distribution governing the transmission of property upon the death of the owners. And it is that view, so far as it holds the sale was void as to the remainder estate, to which I dissent as wholly untenable from any possible viewpoint of the language and objects of the Homestead Act of 1895, opposed to wise public policy if not the organic law, and in contravention of the necessary conclusions of reason resting on the foundation principles of the law. The only theory which seems to be advanced in Balance v. Gor-' don, supra, and the present opinion of the majority, against the right of a creditqr having an allowed demand to obtain sale in the course of administration of the land upon which a homestead exists subject in all respects to the full rights of a homestead therein, is, that the Homestead Act of 1895, above quoted, does not in totidem verbis recite that such right is given as did the Act of 1875. The answer is that unless that right is directly inhibited by the Homestead Statute of 1895 as it was in the Act of 1865, then it must exist perforce the Statutes of Descent and Distribution, which govern and control the transmission of property of every citizen of this State. That it is not directly forbidden by the Homestead Act in question is apparent from the merest glance at the terms of said Homestead Act.
This leaves no support for the theory of the case of Balance v. Gordon except the contention that the silence of the Homestead Act of 1895 as to the transmission of the remainder after the lapse of homestead rights,, operates as a repeal of the general statutes of distribution governing the course of that estate when *595 belonging to any decedent at the date of his death. Neither law nor logic will permit that conclusion to be drawn. It is diametrically opposed to the established law governing all repeals of statutes, which, as has been shown, can only be done in a triform way: (1) by express terms; (2) by repugnancy; (3) by a mew substitutional act covering the entire subject. Can it be said that the Homestead Act in question expressly repeals the general statutes of distribution as to those estates in remainder which arise only after the homestead estate has been fully spent? The answer must be in the negative, for the Homestead Act of 1895 contains no repealing words. Can it be held that the acts are repugnant and therefore the latter repeals the former? The same answer must be given, because the sole object, scope, purpose and design of the Homestead Act was to protect those rights as long us they exist, and not any other or later estate. How then can it be that a disposition of the after estate militates against the full enjoyment of the prior homestead estate, when the very terms of the disposition show that it is subject in all and every respect to the full enjoyment of those rights? If this must be admitted, then the two acts are not repugnant. Again, can it be said with any show of reason or even plausibility that a homestead act which is absolutely silent on the point of transmission or descent of an after ■estate (i. e., fee in remainder after the homestead) is a substitute act for the full and specific directions contained in the general statutes of descent on that subject, when the alleged substitute act uses no terms ■whatever in reference to the provision in question? This must be also denied, unless an act with no provision on a particular subject is a full and complete substitute for another which deals fully with the subr-ject. This, of course, cannot be. I hold, therefore, that the conclusion that the Homestead Act of 1895 contains within itself a repeal in any mode of the pro *596 visions of the general statutes of descent and distribution governing estates in remainder arising after the full enjoyment of the homestead protected by that statute, can only rest from any possible standpoint on de-‘ monstrable fallacies forbidden both by law and logic - For these reasons I think the decision in Balance v. Gordon was ill considered and should be disapproved and overruled in order that the interpretation by this court of the Homestead Act of 1895 should rest upon the stable basis of its language and terms and not upon the interpolation therein of a repealatory clause or upon legal fiction, in order to annihilate the Statutes of Descent and Distribution relative to a subject plainly beyond the scope of the purpose and object of the Homestead Act. That this is the sound and true view is apparent from the clear rulings of the decision of Division Two in Keene v. Wyatt, supra, adopted, as shown above, by the Court in Banc, and the authorities therein cited; by Poland v. Vesper, 67 Mo. 727 , as well as the inescapable view of the meaning of the Homestead Act of 1895 arising from the consideration of the words and language of the act itself and its sole purpose to protect the beneficiaries of the exempted estate, and not to protect the heirs or devi-sees of any other estate. I doubt whether this has been put with more clearness and force than in the following language of Poland v. Vesper, supra. In that case, speaking of the Homestead Act of 1875, it is said:
“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 court further held that the instruction requested by plaintiff should have been given which ‘ ‘ declared that' the administrator’s deed conveyed the title to the plaintiff, subject to the homestead right of the widow and the defendant, and that the widow having died and the defendant attained his majority be, *597 lore the commencement of the snit, plaintiff was entitled to recover.” It is no answer to. the logic of this opinion to say, that the Act of 1875 contained a recital that the homestead estate,- subject to the rights thereof, should pass by descent. That statute, as has been shown, was passed to meet a decision under the first homestead act taken from Vermont, which act contained terms in itself constituting a repeal of the Statute of Descent and Distribution. But the Legislature struck out those repealatory terms. They have not been reinserted in the Act of 1895. And the whole argument of Balance v. Gordon, supra, in the last analysis rests necessarily on the assumption that because the Act of 1895 did not adopt the precaution of the Act of 1875 of making an express provision that the statutes of descent should control property after the cessation of the homestead, therefore the want of such a provision showed that the Legislature intended in the Act of 1895' to repeal and overthrow the Statutes of Descent and Distribution which fully cover and provide for that subject. The bare statement of this view discloses its logical infirmity. The old statute of 1865 cannot be revived in effect or- re-enacted by the mere failure of the Act of 1895 to include within its terms one of the provisions of the Act of 1875, which act also had expressly repealed that provision of the Act of 1865, which was the only support while it existed that can be pointed to in. the statute law of this State for the view expressed in Balance v. Gordon, supra, and the majority opinion, to-wit, that the Statutes of Descent and Distribution were repealed as to their governance of subsequent estates by the terms of the Homestead Act. Repealed statutes are not revived in that way in this State.
III.
Some reference is made in the learned opinion of the majority of the Division in this case to an emi *598 nent lawyer, Judge Cooley, and a quotation from one Sacrifice of Homestead by Sale. of Ms opinions is made. Judge Cooley,, as shown by Judge Maesbtall in Ms dissenting opinion (Keene v. Wyatt, 160 Mo. 9 ), bad already decided the point the otter way. However, a careful examination of the subsequent reference to Judge Cooley’s latter opinion by the Supreme Court of Michigan will show that the rule quoted from him ( 43 Mich. 508 ), in the majority opinion, would have no application whatever to a case like the present, which, according to Judge Cooley, would fall within the reasoning and judgment announced by him in the previous case. [ 38 Mich. 232 .] For here, as in that case, there was no appeal from the order of the county court directing the sale of the land subject to the homestead rights. Where that is so, Judge Cooley held in both opinions that such a sale was impregnable to a collateral attack, which is exactly the sort of attack defendants make in this case against the validity and enforceability of the judgment of the county court directing the sale to plaintiff’s grantors and confirming the deed made to him. But the Supreme Court of Michigan did not stop even there. It distinctly stated in In re Emmons’ Estate, 142 Mich. 1 . c. 309, in referring to the argument that there ought to be no sale of land subject to homestead' until after the homestead was ended, as follows:
“If the import of this argument is understood,'it is that such a homestead — one in value no more than $1500 — cannot be sold at all, if the statute is followed, uMess it falls into the estate before the time otherwise limited by statute for closing the estate, or before the time when the estate is, otherwise, actually closed. Such a holding would do violence to settled rules of construction. There may be difficulties in fact, but there is no legal difficulty in saving both the constitutional homestead for those entitled to it, and, ulti *599 mately, the value of the fee for creditors of the decedent.”
It must he noted that in Michigan the' homestead exemption is created by the Constitution of that State.
Again, in speaking directly of the two decisions of Judge Cooley the Supreme Court of Michigan in Burkhardt v. Walker & Son, 132 Mich. 1 . c. 95, cites the positions of the defendants based on those two cases and thereafter determines the effect of them in the following language:
“In support of the third claim for reversal, defendant says: ‘The complainant’s homestead right, by virtue of being -the wife of the execution defendant, was simply a contingent right of occupancy, not an interest in the fee. . . . The fee of the execution defendant, subject to the homestead rights of the wife, . . . and other incumbrances, can be sold on execution. [Showers v. Robinson, 43 Mich. 502 ; Drake v. Kinsell, 38 Mich. 232 .]
“The most that can be claimed for these cases is that they establish the proposition that an administrator’s sale, under an order of the probate court, of the homestead of the family of his intestate, subject to their homestead rights, is valid, if the order authorizing such sale is not appealed from.”
And, again, in discussing the whole subject and reviewing specially both decisions of Judge Cooley and in answer to the contention in a case which attacked the validity of a sale of property subject to homestead rights, said in conclusion:
“We think it clear that if this decree is to stand, now that the children have attained their majority (excepting Mrs. Foster, who has a home elsewhere) it must stand upon other grounds than because the sale is void on the ground that the land was a homestead. ’ ’ [Louden v. Martindale, 109 Mich. 1 . c. 241; Carrigan v. Rowell, 96 Tenn. 1 . c. 192; McCaleb v. Burnett, 55 *600 Miss. 83 ; Derr v. Wilson, 84 Ky. 14 ; Thompson on Homesteads, sec. 738.]
Moreover, the suggestion based on the quotation from Judge Cooley, that a sale of the fee in remainder-•would cause a sacrifice of the property of the ultimate owners, wherefore the court should make the Homestead Act read so as to forbid such a sale,-cannot have any force whatever: (1) Because it was not the purpose of the Plomestead Act to do other than protect the homestead estate itself, and that estate would have been in nowise diminished nor its full enjoyment impaired even if the one which came after was sold below its value; (2) because the Legislature could not •have designed to protect these remainders following homesteads when it has not protected any other remainders ; for the law is unquestionable that all vested or even contingent remainders, are salable under execution when the owner is alive or on an administration after his death, before the falling in of the preceding estates. Clearly, therefore, it could not have been the legislative purpose to create a distinction between some remainders and all others, for it could not thus discriminate between individuals without violating the constitutions, State and Federal, guaranteeing to each citizen the equal protection of the laws as well as the “lawful gains” of his industry. As it is undeniable that any other vested remainder (than that which follows a homestead estate) which might belong to a deceased owner would follow the statutory course of descent and pass to his heirs, subject to the payment of his debts, why should not the same ruling govern the vested remainder which exists in property subject to the homestead estate of the widow and minor child1? There can be no difference in reason or principle between the two cases.
It is thus clear that the excerpt from one of the opinions of Judge Cooley quoted in the majority opin *601 ion furnishes no support for its conclusion in the present case.
IV.
The Homestead Act of 1895 and the general statutes of descent and distribution are entirely harmonious and reconcilable with each other — the one pro- Deícents^ Exception. tects homesteads; the other governs remainders thereafter and every other species of property of a decedent. There is no possible antagonism or inconsistency between their respective objects. This is perfectly illustrated in the case at bar. Here, the remainder was sold subject in all respects to all the rights of homestead, thus preserving them intact and achieving the full objects of the Homestead Act. I hold that it is a contradiction in terms to say that such a sale is a destruction of any rights of homestead which are expressly excluded from it in the deed given to the purchaser.
V.
For the foregoing reasons-1 must dissent to the learned opinion of the majority of the court in this division. I think the judgment of the trial court should be reversed and remanded for its failure to give the instruction requested by plaintiffs — which is an accurate statement of the law of this State — and that a decree should be rendered in accordance with the ruling therein announced.
The foregoing opinion is refiled as my dissent to the opinion adopted in this case in Banc.