concurrence">MITCHELL, J.

While I concur in the result arrived at, I do so upon an entirely different construction of G. S. 1894, § 4470, from that adopted in the opinion of the court. It will be observed that this case involves the interest of the children, and not of the widow, in the homestead of the testator. While I admit that, according to the grammatical relation to each other of the different provisions of this section, all that is contained in the first clause would seem to apply to all that follows in the four subdivisions, and therefore that the clause,

“Free from any testamentary devise or other disposition to which the surviving husband or wife shall not have assented in writing,”

Would be operative in favor of the children as well as the surviving spouse of the deceased, yet I think it is permissible to construe this clause as intended solely for the benefit and protection of the surviving spouse, and that, in view of the history and apparent pur*58pose of the statute, it ought to be so construed, although it may seem to do some violence to its grammatical structure.

If this clause was intended for the benefit of the children of the deceased, it is rather remarkable that, although they may be of full age, they are given no voice in the matter. Their assent to the disposition of the homestead by the deceased is not required. Their interest is wholly dependent upon the will of the surviving spouse, who may be merely a stepparent; and this interest they may lose by the mere failure of the surviving spouse to make an election under section 4472. Again, if the children should have protection against the testamentary or other disposition of the homestead of a parent, we do not see why they should have been given it when there is a surviving parent or stepparent, and not when both are dead.

Again, the clause is not limited to a testamentary disposition, but to any other not assented to in writing by the surviving spouse, and, if the clause referred to is to be held operative at all in favor of children, it must be held to be equally so as to such “other disposition,” which is liable to lead to very embarrassing complications.

In the light of the pre-existing statutes on the subject, it seems evident to me that the authors of the probate code of 1889, in framing the section, had two objects in view, — one being to protect the statutory interest of a surviving spouse in the homestead of the deceased spouse against any disposition of it, testamentary or otherwise, to which the former had not assented in writing; and the other that the homestead should descend to the surviving spouse and children of the deceased, according to their respective interests, free from the debts of the deceased; that the first was designed for the benefit of the surviving spouse alone, while the latter was designed for the benefit of both the surviving spouse and children; and that the whole trouble has arisen from the fact that the commissioners who framed the code have attempted to effect both objects in a single section of the law of descents, which is very awkwardly and inaccurately constructed.

The construction of section 4470 which I suggest would render it entirely harmonious with the provisions of section 4472, and relieve the construction of both sections from difficulty; whereas, *59if the court persists in the construction with which it has started out, I think it will hereafter find itself confronted with difficulties, the frequency and seriousness of which cannot now be foreseen.

CANTY, J.

Whether the interpretation given by Justice MITCHELL to G. S. 1894, § 4470, is the correct one, it is not necessary now to determine, but the question should be expressly reserved and not be made to appear to be foreclosed by the decision of this case. Conceding without deciding that the surviving husband or wife has for the benefit of the children a veto power on any testamentary disposition. of the homestead by the' other spouse, in this case the time to exercise that power has by the terms of section 4472, expired and the will must stand.

The question discussed by Judge Mitchell is altogether too complicated and too important to be disposed of without thorough consideration in a case in which it must be disposed of.

Citation profile

How this case has been treated — in progress