(after stating the facts). (1) It is contended that the court erred in allowing the introduction of said testimony and in the giving of said instruction numbered 5. The question at issue in the case was whether or not the probate sale of the lands' in controversy to appellee’s grantor was void on account of same being the homestead of their father, the deceased, at his death and the burden of proof was upon appellants to show that fact.
(2-3) The petition introduced in evidence purported to be by the widow and all the children of the deceased, naming them, and the statements of the witnesses, the administrator and his attorney who resisted the claim made in the petition of'the court’s action thereon, were competent, as tending to show the location of the homestead of the deceased. It was also admissible as against the heir, whose name appeared in it as a petitioner, who was of age at the time it was filed, as an admission against interest, and as a statement contradictory of her testimony herein, and there was no attempt to show an adjudication by the probate court that the farm' was the homestead of the deceased, claimed to be conclusive of the question herein. These facts were only introduced to throw such light as they might shed upon the question at issue and the testimony was competent.
(4-5) The widow can not of course impress the lands of the deceased after his death with the homestead character, nor can she abandon the homestead and thereby in any wise affect the homestead rights of the minor children. Martin v. Conner, 115 Ark. 365. The wife has the right in the life time of the husband, to,claim the homestead exempt from execution sale, if he fails or refuses to do so, and select the homestead where the debtor has more land subject to the claim than the law allows to be exempt as a homestead. Kirby’s Digest, section 3902.
(6) The court did not mean to tell the jury by the instruction complained of, as contended by appellant, that the widow had the right to select for the minors a homestead out of the lands of the deceased, but only that she had the right acting for them, to set up a claim of homestead of land, upon which the homestead character had been impressed and have determined what was in fact the homestead, the matter being in doubt.
We find no error in the record and the judgment is 'affirmed.
