The only question presented upon this appeal is whether the homestead right of a surviving widow entitles'her *117to the possession and occupancy, as against the heirs of the decedent, of the whole of the property owned ¡by the decedent to the extent of 160 acres, and occupied as a home by the decedent and wife at the time of his death, or whether such homestead •right is limited to $5,000 in value.
The 'appellant is the -surviving widow of the decedent, and the respondents are his sons -and daughters. At the time of his death the -decedent was the owner in fee of a tract of 158.1 acres of land, valued at $13,438.54, upon which he had his -dwelling-house and buildings appurtenant thereto-, and upon- which he and his family had resided for many years prior to his death. During -the course of -the administration of the estate, the appellant filed a' petition, praying that an order be entered setting the said tract of land- -and the buildings thereon apart to her as a homestead. This -petition w-as- granted, but, upon appeal by the respondents to the circuit court, that eo-urt entered a decree awarding the widow -and minor children the right to use and occupy s-aicl- tract, “to the extent of $5,000 in value, including the -dwelling house and appurtenances thereunto belonging, situated -on said land', to be -set apart to her in the manner provided by law, -during -her natural life, or so long as she may continue to ¡occupy said premises as -a home. * * *” The petitioner, being dissatisfied with this decree, brings the case to this court -upon appeal from- that -portion of said decree which limits her right of possession and -occupancy to the extent of $5,000 in value.
It is the' contention of ap-pellant that she is entitled to- the •use, -occupancy, and possession of the homestead during her natural life, o-r so ¡Dong as. she may -occupy said premises as a home, without restricton as to the value of said homestead, to the extent of 160 acres. This contention is based upon the following provision of the statute. Section 3223, Pol. Code, provides:
“It [the homestead] may contain one or more lots or tracts •of land with the buildings thereon and other appurtenances, subject to the limitations contained in ’the next section. * *”
Section 3224, Pol. Code, as amended by chapter 136, Laws of 1909, provides as follows:
“If within a town plat -it mus-t not exceed one acre in ex*118tent, and if not within a town plat it must not embrace in the aggregate more than 160 acres. * * *”
Section 3231, Pol. Code, provides that:
“Upon the death of either husband or wife, the -survivor may continue to possess and occupy the whole homestead until it it otherwise disposed of according to law. * * *”
Section 153 of the Probate Code, as amended by section 1, chapter 236, Laws of 1913, provides .as follows:
“Upon the death of either husband or -wife or head of a family 'having selected or being entitled to select a homestead, as provided by law, the survivor or. survivors of such homestead’s claimant, entitled .thereto under the provisions of law, may continue to have exclusive possession of the homestead as defined by law until it is otherwise disposed of and -have the rents and profits thereof as a whole or in shares according to. law, and as it may be dealt with by la'w. * * *”
If the provisions of sections 3223, 3224, and 3231, above set out, are not _ in conflict with or repealed by section 153 of the probate Code, as amended by chapter 236, Laws of 1913, or other subsequent legislation, there is no room for doubt that-appellant, as the widow of the -said decedent, has a homestead right in the entire tract of land, regardless of the fact that it exceeds $5,coo in value. But it is the contention of the respondents, and the circuit court evidently took the view, that the above-quoted, sections of the statute are so qualified by later legislative enactments that the homestead allowed by law to a surviving widow can in no case exceed $5,000 in value. And they base their contention upon the apparent limitation on the value .of the homestead found in section 3215 of the Political Code. This section reads as follows:
“The homestead of every family resident in this state, as hereinafter defined, to the extent of' $5,000 in value, whether such homestead be owned by the husband or wife, so long as it continues to possess the character of a homestead, shall be exempt from all judicial sale, from judgment lien, and from all mesne or final process from any court. * * *”
At first glance, this section appears to contain, or rather to recognize, a limitation on the value of the homestead. But such is not the ease. Section 3215 does not purport to define or *119limit the homestead itself. It merely provides what portion, in value, of the homestead that has been created and defined by some other provison of law shall be exempt from levy or sale on execution. The mere fact that the law provides that the homestead, to the extent of $5,000 in value, shall he exempt from levy or sale on execution, does noit necessarily- imply that the 'homestead -can in no case exceed $5,000 in value, or -that the heirs have the same right to the excess over $5,000 in value that is given to an execution creditor under -the provisions of section 345, Code Civil Procedure.
Under the provisions of section 3222, the homestead1 -embraces the house used as a home by the owner thereof. By section 3223 it may contain -one or more contiguous tracts of land, with the buildings thereon, and other appurtenances, subject to ithe limitations contained- m section 3224. This section- limits the homestead to -o-ne acre in extent if within a town plat, and to 160 acres if not within a town -p-l-at, but contains ri-o- limitation whatever as to value. Nor does' any other provision of our statute purport to limit the value of a h-omes-teád.
The difficulty in arriving at a correct solution of 'the question involved grows largely, if not wholly, out of a misunderstanding of the -constitutional- pro-vision- relating to1 exemptions. Section 4, article 21, of the Constitution, reads as follows:
“The right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws exempting from forced- sales a homestead, the value of which shall be limited and defined 'by law. * * *”
This section, it will be noted, does not purport to create of define the 'homestead nor to limit the value thereof. Neither -does it purport to confer upon the Legislature any power that the Legislature did not -already possess and had. already exercised. Sections 6, 7 and 8, C. 38, Pol. Code 1877. These three sections have been retained in farce unchanged, and now constitute sections 3222, 3223 and 3224 of the Revised- Political Code of 1903. They have not been repealed by any subsequent statute, and -the mo-st that can be s-ai-d for this provision of the Constitution -is that it admonished' the Legislaure, in cases where the horq.estead, as it is -defined and limited by Section 8, chapter 38, Political Cade of 1877, exceeds' a val*120uation to be fixed by the Legislature, to subject the portion thereof in excess of such valuation to- the payment of the owner’s debts. Prior to the adoption of the Constitution, section 322 of the Code of Civil Procedure, relating to exemptions, read as follows:
“Except as hereinafter provided, the property mentioned under this heading [Exemptions] is exempt from attachment or mesne process, and from levy and sale on execution, and from any other final process issued from any court.”
And section 323 reads as follows:
“The [property mentioned in this section is absolutely exempt from 'all such process, levy, or sale: * *• *
“7th. The homestead, as created, defined and limited by law.”
The homestead referred to in this section is the homestead “created, defined and limited” by sections 6, 7, and 8 of chapter 38, Political Code 1877. This homestead, if not within a city or town, might consist of 160 acres of land, without any limitation as to its value. After the adoption of the Constitution, the Legislature, in an apparent attempt to- carry out the provisions contained! in section 4, article 21, of the Constitution, amended section 323, Code of Civil Procedure 1877, to read as follows:
“The property mentioned in this section is absolutely exempt from all * * * process, levy or sale, except as otherwise provided by law: * * *
“7th. To all heads of families, a homestead containing not to exceed 160 acres of land, with the improvements thereon, which lam'd and) improvements thereon shall not .exceed $5,000 'in value. * * *” Section 1, C. 86, Laws of 1890; aliso section 845. Rev. Code Civ. Pr. 1903.
This section is contained in the article on Exemptions, and is the first time that a $5,000 homestead limitation appeared in any law. From the above provision of the Constitution and the statutes enacted pursuant thereto, it is clear that the $5,000 limitation found in the exemption law applies only to an execution debtor’s exemptions, and is not intended to be a limitation upon the value of the homestead itself. The effect of chapter-86, Laws of 1890, is the same as though section 4, article 21, of the Constitution read as follows-:
*121“The right of the debtor * * * shall be recognized' by wholesome laws exempting from forced sale a homestead, the value of which for exemption purposes shall be limited and defined by law.”
The result is that, where the owner of a homestead is free from, debts, his homestead, if outside a city or town, may consist of 160 acres of land, with the improvements thereon, free from all limitation as to value, and upon his death such homestead descends to his widow and heirs, as provided in. section 3232, Political Code, without any limitation as to value; but where the owner of such homestead is in debt, then such homestead, to the extent that it exceeds $5,000 in value, is subject' to the payment of the owner’s debts. In case of his death, such homestead descends to his widow and heir's as provided by said section 3232, Political Code. • But they acquire no greater right therein than, the decedent himself 'had, and take such homestead subject to the .payment of his debts, as -provided by subdivison 7, § 345, Code of Civil Procedure, to the extent that such homestead exceeds $5,000 in value.
But let us consider section 345, Code of Civil Procedure, from another standpoint, keenino- in min'd all the while the fact that in this case the heirs 'of the decedent are seeking a partition of the homestead as against the surviving widow. This section contains the following provison:
“* * * Provided, if, in the opinion of the creditors or officers holding an execution against such debtor the premises claimed by him or her as exempt are worth more than five thousand dollars, such officer shall summons three householders, having the the qualifications of electors of the county as appraisers, who shall, upon oath, to be administered to them by the officer, appraise said premises; and if, upon such appraisal, the property shall be found to exceed in value the sum of five thousand dollars, and without injury to the interest of the parties the debtor may elect to pay, within sixty 'days, the surplus over and above five thousand dollars; or he may require that the whole premises shall be sold in the manner provided in subdivision 8 of this seotion; and if he shall not so elect, then the appraisers shall set off so much of said premises, to be selected by the debtor, as in their opinion shall be worth five thousand *122dollars, and the residue of said premises may be advertised and sold buy such officer: Provided, further, in ca'se the value 'of the premises shall, in the opinion of said appraisers, be more than five thousand dollars, and cannot be divided as is provided for in this section, they shall make and sign an appraisal of the value .thereof, and deliver the same to the officer, who shall deliver a copy thereof to the execution debtor or to' some tone of the family of suitable age to understand the nature thereof, with a notice thereof .attached that unless- -the execution debtor shall pay to said officer the surplus over and above five thousand dollars or the amount due on said execution within sixty days thereafter that -such premises will be s-old.”
From the wording of this provision, it is plain that it to enacted for the benefit of execution -creditors only. In fact, the whole proceeding as above set out, to -subject a portion of the homestead to the payment of the owner’s debts, is- predicated upon the -existence -of an execution- and upon the fact that, by paying on -said execution the amount that the value of the homestead exceeds $5,000, the territorial integrity of the homestead may be preserved; and the .proceeding itself can be initiated -only by the officer having su-c-h execution in his bands. Np reference is made to any other clas-s of claimants, and there is no provision in any law that authorizes heirs, or any -other claimant, or any court, to force the sale or segregation of a homestead as the same is -defined) by section 3224, Political Code, except for the satisfaction -of a purchase-money judgment, -a mortgage, or a tax lien. Section. 3232, Political Code, is merely a statute -c-f -descent, and defines the rights of the heirs relative to the legal title -to the property constituting the homestead, but subject to the homestead rights of the surviving widow and minor' children.
Section 3215, Political Code, without .in any manner attempting to define or limit the homestead, merely recognizes the exemption- provision found in section 345, Code of Civil Procedure. These two sections are exemption statutes merely. If there are no debts, the homestead is in no wise affected by either -of said sections. But, where -there -are -debts, section 3215, Political Code, recognizes the fact -that such portion of the homestead as may -exceed) $5,000 in value may be subjected *123to the payment of such, debts in the manner provided by section 345, Code of Civil' BnoceAnre. It is suggested that the. homestead' is limited in value by the provisions of sections 155 and 156 of the Probate Code, as amended, by chapter 236, Laws of 1913. But neither of these sections contains .any such limitation. Section 155, Probate Code, as amended by chapter 236, Laws of 1913, attempts to provide the course to be pursued by the county court in either of three different contingencies: First, if no homestead has been selected and recorded; second, if the one so selected exceeds in area or value the homestead as provided by law; third, if the homestead is encumbered and the estate -is solvent, after payment of all debts payable by the estate.
In the first case, where no homestead has been selected, the county court may cause one to be seleoted. Such homestead may consist of 160 acres, without limitation as to value, provided the indebtedness is all paid; but if there is not sufficient money or property on hand to pay the indebtedness without resorting to the homestead, then the portion of the homestead in' excess of $5,000 in value may be sold under the order of the county court and .the proceeds applied on the indebtedness of the estate. Second, if the tract of land occupied by -the decedent as a home exceeds 160 acres in area, then it mu'st be divided; x6o acres thereof shall be set apart for the widow and, children! as provided by section 153, Probate Code, and the remainder turned over to the heirs; and, if there are unpaid debts remaining, then such .portion of the 160-acre 'homestead as exceeds $5,000 in value may .be applied in payment of such indebtedness. Third', if the homestead is incumbered, and the assets of the estate, exclusive of the 'homestead, are not sufficient to pay such .incumbrance, then the county court may cause such homestead to be sold. The incumbrance shall be paid from the proceeds of such sale, and any surplus that may be left after paying sucli incumbrance shall be turned over to the widow and children. •
Section 156, Probate Code, as amended, merely recognizes the rights of creditors. If a portion of the homestead was subject to the payment of the owner’s debts at the time of his-death, such homestead passes to his widow and- children subject to the .payment of such debts, to the same extent that it was *124subject to the payment of such debts before his death. But if there are no debts, and no rights of creditors are involved, then the homestead, to the extent of 160 acres, passes to the widow and children without limitation as to value.
Our attention has been called to but one case where the precise question involved in this case was considered. .The homestead law in Nebraska is similar in effect to ours. It creates .and defines a homestead, and limits it, when in the country, to 160 acres of land and the dwelling house and appurtenant buildings, but contains no limitation as to' value. Later on a- law was enacted providing that the homestead, to the extent of $2,000, 'should be exempt from levy and sale on execution, and provided the method of 'subjecting the excess, if any, to the payment of the owner’s debts, just as is .done by our section 3215, Political Code, and section 345, Code of Civil Procedure. They also have a law that provides, just as our section 3215, Political Code, and section 345, Code of do, that upon the death of either husband or wife the survivor “may continue to occupy and possess the whole homestead until it is otherwise disposed of by law.” In Meisner v. Hill et al.. 92 Neb. 435, 138 N. W. 583, the plaintiff was the widow of the deceased- owner of-a homestead of the value of about $25,000. The' defendants were the children of said decedent by a former wife. The widow claimed the right to possess- and occupy the whole of the said homestead, regardless of value, while the -children, as the heir-ts of the -decedent, claimed' that the widow’s right of possession and occupancy was limited to $2,000 in value, and that they were entitled to the immediate distribution of the excess. The Supreme Court of the s-ta-te sustained the claims of the widow, holding- that the $2,000 limitation was provided for the benefit of execution creditors only. In discussing the exemption feature of their law, that cou-rt say:
“ ‘Upon the death of either husband or wife, the -survivor may continue to possess and oocu-py the whole homestead until it is otherwise disposed of according to law.” Laws 1877, p. 37. This is a very suggestive section. That part of the homestead which the -creditor might take is clearly not considered the whole homestead, and, when -one spouse dies, the other might occupy -the whole homestead, unless the creditors interfere. This is *125tbe first provision for the descent of the homestead upon the •death of the spouse who holds the legal title. It specifies clearly the homestead that so descends, and it is the ‘whole homestead,’ and not merely the value exempted from the claims of creditors. In 1879 ’ou‘r present statute was enacted. Laws 1879, p. 57. The first section of this act provides that a homestead not exceeding in value $2,000, including the dwelling house in which the claimant resides, etc., shall he exempt from judgment liens and from execution or forced sale.”
Again, in the concurring opinion of Hamer, J., in the same case, it is said:
“In all the statutes referred to in which there is a limitation upon the exemption of $2,000, it is against creditors, and not against the survivor. The failure to express the same limitation upon the succession would seem to indicate that it was not the intention of the legislative body to impose this limitation in the matter of succession. The Legislature has very carefully provided for a means to subject the excess of the value of the homestead above $2,000 to the payment of any judgment that may be rendered. Nothing is said about a $2,000 homestead. It is just simply a homestead to' which ‘the survivor for life succeeds. If the Legislature h-acl intended that only $2,000 should go to the surviving husband or wife, and that any excess above that should gO' to the other heirs, why should it not have said so?”
The above remarks are just as applicable to the homestead and exemption ,la,ws of this state as they are to the homestead and exemption laws of the state of Nebraska. In -all cases where there is a limitation .in our law on the homestead exemption, it is against the creditors, and not against the heirs; and, from the fact that the Legislature nowhere made an exception in favor of the heirs of the deceased homesteader and against the surviving widow, it may fairly be inferred that it was not the intention of the Legislature to make any such exception. In this case there are no rights of creditors involved; therefore the appellant is entitled to the use and occupancy of the whole homestead, as provided by section 3231, Political Code, and section 153, Probate Code, without regard to value.
The cause will be remanded to the Circuit Court, with *126directions to modify the decree appealed from-, so as to conform1 to the views expressed in this opinion; costs to be taxed in favor of tíre appellant.