This was a statutory action of ejectment, brought by the appellee against the appellant, for a one-fifth interest in the E. 1-2 of S. E. 1-4, section 26, township 7, range 27, in Henry county, formerly owned by the father of the-plaintiff, Joel T. McLendon, who died in 1863, while occupying'said land as his homestead. Said McLendon left a widow and five children, two of whom, were minors; the plaintiff (appellee) being one who Avas not a minor at the-time of her father’s death. The defendant shoAved that letters of administration Avere issued on the estate of said McLendon, and the estate declared insoUent June 11, 1866, the land in question being mentioned as 160 acres, valued at about $900.50, and the petitioner stating that one-half of it is exempt from sale, for the benefit of the avícIoav and children, while the record of his settlement, at the time of insolArencjr, states that the estate oaviis 160 acres, which the administrator believes “the AvidOAV of said deceased will be entitled to as a homestead, for the family of said deceased.” Defendant’s witnesses also stated that said Avidow, Mary McLendon, liAred on said 160 acres of' land, claiming it as her own, paying taxes on it, and collecting rents of same, since 1865 or 1866, until her death on July 5, 1.903. Defendant also introduced in evidence the will of said Mary McLendon, devising said 160 acres (S. E. 1-4 of section 26, township 7, range 27) to her son W. A. McLendon and her daughter Mary E. Holland share and share alike. Said Mary Holland and a sister (Sarah) since deceased AATere the minors, who lived with their said mother. Deeds were then in*473troduced showing that said W. A. McLendon and his said sister Mary H. Holland had partitioned the land; the east one-half of said quarter (the land sued for) being conveyed to said W. A. and he having conveyed the sanie to the appellant December 8, 1904. The plaintiff testified that for 25 years before her mothers death she lived 35 miles distant from her mother, that she visited her occasionally, and had never heard her mother assert any claim to the land.
In order to determine the materially of some of the objections to testimony, it seems advisable to examine, first, what were the rights or interest of said avícIoav and. her minor children in said lands, under the homestead exemption lavs. Code 1852, § 1738, provides that, “when the deceased leaves a widow and a child or children under the age of twenty j’ears, members of his family, the following property is exempt from sale for the payment of debts.” Subdivision 6 “If it is found necessary to sell all the real property for the payment of debts, the widow, or if there is no widow, the executor or administrator, must select real estate to the value of five hundred dollars, to include the homestead, or such portion of the same as can be selected, without injury to the remaining portion of the estate, and if this cannot be done, other lands in place thereof, to be estimated by the appraisers, and set off by metes and bounds, AA'hich is exempt from sale, and the title to AA'hich vests in such AA'idoAAr, and child or children; or in the AridoAV, if there lie no children, or in such child or children, if no Avidow.” The act of January 30, 1860, made said property “exempt from the claims of heirs, distributees or legatees, for the use of the widow, or avíJoav and child or children.” — Acts 1859-60, p. 18; An act vras passed and approved December 9, 1864, construing said section 1738 to apply only “in cases Avhere the estate of the decedent is insolvent, and it becomes necessary to sell the real estate for the payment of debts,” (Acts 1864, p. 93) ; but Ave do not consider this act,, as, under our decisions, the exemption to the Avidow and minor children is governed-by the laiv in force at the time of the death of the husband.—McDonald v. Berry, 90 Ala. 464, 7 *474South. 838; Foy v. Wellborn, 112 Ala. 160, 20 South. 604.
In discussing the amendatory act of 1860, this court, speaking through Chief Justice Brickell, said: “It is not easy to assign to this amendatory statute any other operation than as creating a right in the widow and infant children to the exemption, absolutely, without regard to whether a sale of the real estate was, or not, necessary for the payment of debts — a right which would accrue on the death of the husband or father, and could then be asserted.”—Rottenberry v. Pipes, 53 Ala. 447-449. Giving to the statute this interpretation, the widow and children were entitled to have the title to said 160 acres of land vested absolutely in them at the time of the declaration of insolvency, if said land was not worth exceeding $500. It did not require anv proceeding to vest it.—Jackson v. Wilson, 117 Ala. 432, 23 South. 521. Hence the court erred in sustaining the objections to the testimony of the witnesses Capp and Reynolds by which it was sought to prove that said land constituted the homestead of Joel T. McLendon, deceased, and that at the time of his death it was worth no more than $500.
Great latitude is allowed on cross-examination, and the court erred in refusing to allow the plaintiff, when on the stand, to be examined as to statements made by her to her mother about her disposing of the land by will. The answer might have been important to show-knowledge on the part of the plaintiff that the property in question was claimed to be owned by her mother.
From what has been said it results that the court errecLin giving the general charge in favor of the plaintiff. It may be well to state, however, that we do not mean to say that the plaintiff could not recover her share of the undivided one-third of the land which was owned by her sister Sarah. The record does not show when she died; but, when she did, her interest descended to her brothers and sisters.
The judgment of the court is reversed, and the cause remanded.
Tyson, C. J., and Haralson and Denson, JJ., concur.