¶1(dissenting).
¶2I cannot agree with the majority opinion. In the first place the case of Dowell, Adm’r v. Powers, Old., 357 P.2d 954, controls here. The first paragraph of the syllabus in that case is as follows:
“Where administration proceedings in the estates of deceased persons are pending in a county court having jurisdiction of the settlement thereof, and it appears that there are unpaid claims properly pending before such court awaiting approval or rejection and if approved, the amounts thereof to be determined by such court and it further appears that the sale of the real property belonging to such estates will probably be required in order to obtain funds to pay such claims, upon timely objection made, the judge of the district court may properly be prohibited from partitioning such realty in an action brought under 84 O.S.1951 § 257, even though the death of such decedent occurred more than three years prior to the filing of such district court action.”
¶3The evidence in the foregoing case showed that there were unpaid claims. The .same is true in the case at "bar. Mrs. Hix-son put in a claim for twenty-six hundred dollars for money she advanced her husband Cook to pay on the farm and this claim has not been satisfied.
¶4The majority opinion takes, the position that the homestead would never be liable for the debts of the estate. In my opinion this is unsound. If Mrs. Hixson did actually abandon the homestead set aside to her by the County Court of Washita County or relinquished her homestead right, she would still have the right to prosecute her claim for the money she advanced her husband. To me the case of Irwin v. Irwin, 192 Okl. 334, 136 P.2d 940, is helpful. There are many points of similarity between that case and the case at bar. The husband owned a tract of land. He died leaving a widow and three adult children by a former marriage. The decedent was ■indebted to his wife in the sum of $1,017.00. The land was set aside to the widow as a homestead. She later relinquished her claim to the homestead and sought to collect the money due her from the sale of the homestead. This she was allowed to do. Her claim had been allowed against the estate. In the case at bar the claim is still pending. At least there is nothing to show the contrary. We said in this Irwin case, supra:
“A widow may waive her probate homestead right during the course of administration and after an order has been made by the County Court approving her use or occupancy of the property as a homestead.”
¶5In the case at bar clearly the widow is entitled to have her claims against her husband’s estate adjudicated and assets of the estate should be devoted to paying such claims.
¶6When the land is no longer the homestead it may be sold in the county court to pay debts of the estate.
¶7*686The county court was the proper tribunal to settle the estate if the homestead no longer existed. The district court could properly determine the heirs but in my opinion it would be improper for it to partition and distribute the land while the proceedings were still pending in the county court.
¶8I dissent.