Page:North Dakota Reports (vol. 2).pdf/294

 her deceased husband except her right to the homestead as survivor. All other estate may be devised. If that right extends only during administration, then the law which prevents him from conveying or incumbering that homestead is of no benefit to the family. He is liable for their support while he is living, and if, by will, he can deprive them of that homestead as soon as his estate can be settled, it would seem a useless requirement to prohibit its sale during his life. Again, “subject to the rights of the surviving husband or wife, as declared by law, the homestead may be devised like other real property of the testator.” Id § 2466. In no case is a devisee entitled to come into possession of his devise until the estate 1s settled and distributed. If, as appellant claims, the widow's right of possession as survivor ceases at the same time, why were the devisee’s tights made subordinate to hers? The two rights could not clash; one ceasing when the other began. On the other hand, if her right of possession as such survivor continues as long as she continues to reside and make her home upon the property, then the section would have force and be necessary. Again, “upon the death of both husband and wife, the children may continue to occupy the homestead until the youngest child becomes of age.” Id § 5778. It is certain that as to the children, when both parents are dead, the right to occupy the homestead does not cease when the estate is settled. It may continue for twenty years longer. If appellant’s position be correct, we would have the following results: When a party possessed of a homestead dies, leaving surviving him a widow and children, the law will, immediately upon the settlement of his estate, deprive that family of its home, and the property will go to the devisee, or be subject to partition among the heirs at law, as the case may be. But if that same party die, leaving surviving him children only, the law cannot 80 seize upon the homestead, but the same may remain in the possession of the children until the youngest attains majority. Can any plausible reason be assigned for this distinction? None suggests itself to us. Keeping in mind the entire statute and the undoubted policy of our laws, it seems clear that the purpose of this law is that, upon the death of the husband and father,