¶1A homestead consists of a dwelling-house, out-buildings, and the land used in connection therewith, not exceeding five hundred dollars in value, used or kept as a homestead. When Thompson moved into the rooms over the store, which he finished for the purpose of living in himself, he rented the little house that he had been living in, reserving a small part of the cellar for storage purposes, a small piece of land in front of the house for a flower-bed, and a small piece in the rear for flowers and vegetables.
¶2The commissioners find that after moving into the store in June, 1892, said rooms, in connection with a portion of the upper part of the tinshop, the well between the tinshop and the little house, said reservations, and certain small pieces of land m the rear of the tinshop that were used for piling wood, were used, occupied, and kept by Thompson and his wife as a homestead until he died in March, 1895, and thereafter by her till she died in June, 1896. The rest of the premises, theyfind, with the buildings that Thompson erected thereon, were used by him in his business. It being found that said reservations were kept and used as aforesaid during all the time Thompson and his wife lived over-the store, we infer that the little house was rented all that time. This fact, and the fact that the rooms over the store were used and kept as a homestead, conclusively show that the little house was abandoned as a dwelling-house, and that thereafter it was neither used nor kept as a part of the homestead, but only for the purpose of renting. It can, *270therefore, constitute no part of the homestead. Bugbee v. Bemis, 50 Vt. 216. Nor, for the same reason, can the land rented with it, if any there was, which does not appear, though it would seem that there was some, for otherwise there was no need of reserving any in the lease.
¶3The dwelling-house, then, being in the store building, the homestead right centered there, and when the decree of foreclosure became absolute, that part of the right — which was of nominal value only, as the mortgage debt was more than the value of the land — was lost, leaving nothing to satisfy the rest of the right except what there was of the homestead in that portion of the premises not covered by the mortgage. Now we have seen that what was rented of that portion constituted no part of the homestead. Nor did what Thompson used of it in his business, because he neither used nor kept it as a homestead; for when the commissioners find specifically what of that portion he did use and keep as a homestead, and do not include what he used in his business, they by necessary implication find that he did not use nor keep that part as a homestead, and did not intend it to be a part of his homestead. Whether premises are so used or kept as to constitute a homestead is largely determined by the intention of the homesteader. Whiteman v. Field, 53 Vt. 554; Thorp v. Thorp, 70 Vt. at p. 50. And whether they are so used or kept is a fact to be established by the party claiming the right. Russ v. Henry, 58 Vt. 388; Thorp v. Thorp, 70 Vt. at p. 50. Here the party claiming has failed to establish the right in the rented portion of the premises not covered by the mortgage, and in the part that was used by the homesteader in his business; but in the rest of the unincumbered part of the premises he has established the right, and therefore is entitled to have that part set out to him accordingly.
¶4The judgment of the probate court that the widow was entitled to a homestead does not affect the question, though not appealed from, for that adjudication was based upon *271the case made by her petition to have a homestead set out to her, and was simply a decision that upon the facts alleged she was entitled to a homestead.
¶5The county court adjudged to the defendant, who is the personal representative of the widow, the homestead set out by the commissioners appointed by the probate court, as far as the same had not been extinguished by the decree of foreclosure. This gives the defendant less than the county court commissioners have found was used, occupied, and kept as a homestead in the unincumbered part of the premises.
¶6Therefore that judgment is reversed, and judgment that the defendant is entitled to have set out to him all that the county court commissioners have found was then used, occupied, and kept, as shown by their report. Let the defendant recover his costs in this court, but not below, for such was the judgment there. Lei this judgment be certified to the probate court.