[File No. 5893.]

#### IN THE MATTER OF THE ESTATE OF ANTHONY JAMES DRUHL, et al., Minors, John H. Lewis, Guardian of Anthony James Druhl, et al., Appellant and Respondent, v. ANTHONY JAMES DRUHL, et al., Minors, R. J. Doebler, Special Guardian of Said Minors, et al., Respondents and Appellants.

(237 N. W. 697.)

*169(Opinion filed July 6, 1931.)

*John H. Lewis,*for appellant-respondent.

*L. J. Falda, Jr., G. E. Brace*and *Robert W. Falda,*for respondents-appellants.

BueKb, J.

This is an appeal from a judgment of the district court of Ward county, granting an application to sell real estate. The action was brought in the county court on the petition of J. II. Lewis, guardian of Anthony James Druhl, Maurice Druhl and Virgie Druhl.

Amiel Druhl, father of said minor wards, died intestate leaving a home which he and his family occupied as a homestead before his death, and which is described as follows: “Lot 1, Block 4, Lee & Jacobson’s *170Addition to tbe City of Minot.” Tbe appraisers appointed by tbe county court appraised tbe said property at $3,000 and it was decreed by tbe county court to Perle May Drubl, widow of tbe said Amiel Drubl, as a homestead. Perle May Drubl remarried, moved with ber husband and children to tbe state of Oregon in August, 1928, and is now known as Perle May Levine. Tbe bouse on tbe said premises is in the flood district of Minot, and has suffered in tbe last two floods, part of the walls fell in and considerable, plaster was knocked off. It is depreciating in value rapidly and, unless expensive repairs are made, tbe value of such property will constantly decrease, and it is for the best interest of tbe minors and tbe estate that the property be sold.

All of tbe facts in tbe petition for tbe sale of tbe property are stipulated by tbe parties. Tbe judge of tbe county court found tbe facts as alleged in tbe petition, and ordered a sale of tbe said real estate, tbe proceeds thereof to be invested by tbe guardian for tbe benefit of tbe said wards until tbe youngest becomes of age, at which time two-thirds of tbe proceeds are to be paid to tbe said wards and one-tbird to Perle May Levine. Prom this order all the parties appealed to the district court wherein tbe findings of fact, conclusions of law of tbe judge of tbe county court were in all things affirmed, and from a judgment entered in tbe district court all tbe parties appeal to this court.

Tbe questions of law involved are, first, has tbe court the power to authorize the sale of tbe real estate involved,- and second, what disposition must be made of tbe proceeds of tbe sale ?

Perle May Levine filed a statement in substance, that she is willing to convey ber interest in the property to a purchaser at private or public sale so as to convey whatever interest she has in tbe property, provided, ber rights'in tbe proceeds are protected.

All the parties to tbe action believe that it is to *the*best interest of tbe estate to have tbe property sold, but differ on tbe question of tbe disposition of tbe proceeds.

According to tbe statement of facts the property involved was á bom'estead at tbe time of tbe death of Amiel Drubl, husband of Perle May Drubl, now Mrs. Levine, and father of tbe children; that probate proceedings were started to administer tbe estate of Amiel Drubl, and tbe homestead was set aside to tbe said Perle May Drubl vffio resided on the homestead with ber children until about August, 192S, *171when she remarried and with tbe consent of tbe guardian of said children, took them all with her to the state of Oregon.

In the case of Cullen v. Sullivan, 51 N. D. 384, 199 N. W. 760, this court said: “There is a clear distinction between the ‘homestead’ and the ‘homestead estate.’ The homestead consists of a dwelling house in which the homestead claimant resides. . . . The ‘homestead estate’ is merely ‘the right to possession, use, control, income and rents of the real property held and occupied by the decedent as a homestead at death.’ ... In case a homestead estate is set off to a surviving wife or husband, she or he, as the case may be, may continue to possess and occupy the whole -of the real property subject to such homestead estate, for life. This ‘homestead estate,’ that is, the right of possession is separate and distinct from, and not affected by, the right to take the real property, subject to such estate, either as heir or under a will. Calmer v. Calmer, 15 N. D. 120, 106 N. W. 684. ‘The real property subjected to such homestead estate’ descends ‘exempt from decedent’s debts except as provided in. § 5607,’ and is to be ‘distributed in the same manner as real property not subjected to a homestead estate, or as directed in the decedent’s will.’ ” The surviving husband or wife may continue to occupy it for life, and since the right of possession is separate and distinct from, and does not affect the right to take real property subject to such estate, it follows, that the right to take the property under the law of distribution is not affected by the homestead estate when the property ceases to be a homestead. It then descends to the surviving husband or wife and decedent’s heirs in a direct descending line and is distributed in the same manner as real property not subject to a homestead estate.

Section 5627, Comp. Laws 1913, provides: “Upon the death of a person in whom the title of real property constituting a homestead as defined in this chapter is vested a homestead estate in such real property shall survive, descend and be distributed to the persons and in the order following:

> “1. To the surviving husband or wife for life; or

> “2. There being no surviving husband or wife, to decedent’s minor child or children until the youngest obtains majority; or

> “3. The surviving husband or wife dying before, then thereafter *172to the decedent’s minor child or children until the youngest attaifis majority.”

Under this section it descends to the children, first, when there is no surviving husband or wife, and second, if there is a surviving husband or wife who dies before the children become of age.

In the instant case there was a surviving wife who subsequently marrried and left the state with the childen, the condition which would entitle the children to a homestead estate never arose, and therefore, when Mrs. Levine married and left the state the property was no longer a homestead estate, and that question is no longer in the case.

Under subdivision 1, § 5743, Comp. Laws 1913 (the law of succession), “If the decedent leaves a surviving husband or wife, and more than one child living, . . . one-third to the surviving husband or wife and the remainder in equal shares to his children.”

In the instant case, this property descends one-third to Mrs. Levine and two-thirds to the children.

Under § 111 of the Constitution, “The county court shall have exclusive original jurisdiction in .■ . . the sale of lands by executors, administrators and guardians.”

Under §§ 8900 to 8901, Comp. Laws 1913, inclusive, the county court may, “if after a full examination it appears necessary or for the benefit of the ward that his real estate or some part thereof should be sold, the court may make a decree directing such sale either at public or private sale.”

It appears in the record that all of the parties interested were in court, all agreeing that it was for the best interest of all of the parties that the real estate should be sold to prevent further decrease in its value. It is therefore ordered that the case be remanded to the district court with instructions to remand the same to the county court for the sale of said real estate and the distribution of its proceeds as provided by law.

CiiRistiaN SON, Ch. J., and Birdzell, Nuessle, and Burr, JJ., concur.