¶1From the record it appears that Floyd died in 1868. There is nothing to show that his estate was insolvent at the time of his death, and, under the law then in force, if the estate was solvent, the property exempt from forced sale was subject to partition and distribution among his heirs. And property or money set apart in lieu of such exempted property is governed by the same rule.
¶2For the purposes of this appeal the estate must be considered solvent; and as there was no homestead in the partition and distribution of the property, it would not be subject to the occupancy of the surviving widow.
¶3After the oral partition between Floyd and his divorced wife the land in controversy became his separate property. And at his death a life estate to one-third vested by inheritance in his surviving wife, and the remainder vested in his children.
¶4There is nothing in the objection that the administration was still pending, and hence the appellants could not maintain this suit; for the order setting aside all the property belonging to the estate to Mrs. Maire, in effect, concluded the administration.
¶5In our opinion the judgment ought to be reversed, and that the supreme court should now render the judgment that ought to have been rendered by the court below, that is, the appellee have and recover of and from appellants an undivided third interest in the land for and during the life of Mrs. Maire. And that appellants have and recover of and from the appellees a two-thirds undivided interest in said land, and the remainder after the life estate is determined by the death of Mrs. Maire. And that the clerk of the district court of Wise county be directed to issue the proper writ to put the appellants into possession to the extent of the recovery herein adjudged. And that appellees be adjudged to pay the costs of this suit.
¶6Reversed and rendered.
¶7[Opinion approved November 5, 1883.]