¶1dissenting.
¶2It appears from the record in this case that David E. Hodo died, leaving a will, which was admitted to probate on the 5th day of May, 1862, six years before the Homestead Act *443was passed. The, testator, at the time of his death, left a widow and eight children, three of whom only were minors. The testator, by his will, devised and bequeathed the property, out of which the homestead is now claimed, to his widow and eight children, to be equally divided between them when the youngest child became of age. The widow, as the head of a family, now claims a homestead out of the entire property of the testator, including his real and personal property, to the value of $3,000 00 in specie. Under the provisions of the Homestead Act the widow, if she is the head of a family, is entitled to claim a homestead out of her own property, and may claim a homestead as the next friend of her minor children out of their property, but she is not entitled to claim a homestead either for herself or as the next friend of her minor children, out of the property of other persons. On the death of the testator the title to his property vested in the devisees and legatees named in his will, to be enjoyed by them in possession when the youngest child became of age. The widow is not entitled to claim dower and a year’s support out of the estate of her deceased husband, and in addition thereto, to claim a homestead out of the real and personal property of his estate which he had devised and bequeathed to other persons by his will long anterior to the passsge of the Homestead Act, the title to which was vested, in them. The testator could not have claimed a homestead in this property in his lifetime, for the simple reason that he died six years before the Homestead Act toas enacted. To entitle a widow or minor children to claim a homestead under the provisions of the Act, either in real or personal property, they must have a title to such property in their own right. The Act does not contemplate that any one shall have a homestead out of the property of other people, to which they have no legal right or title, but only secures to the applicant a homestead in his or her own property against the claim of creditors.