This is an action at law insti- . tuted by appellant to recover a tract of land in Randolph County, Arkansas, containing 160 acres, the parties to the action all claiming title from a common source, one IT. C. Jarrett, who died on November 4, 1869, while occupying the land as his homestead. He left several chil-. dren, all of whom-are parties to this action, and a widow, who died in the year 1909. The widow occupied the land with her children until she remarried in the year 1884, when she and the children removed therefrom, but the widow continued to hold possession of the land through her tenants and collected the rents up to the time of her death.
There was an .administrator of the estate of H. C. Jarrett, one Thomas Simington, who sold the lands -under order of the court to pay debts on December 18, 1877, one Thomas Poster being the purchaser at the administrator’s sale, and he subsequently conveyed to one of the defendants in this case.
The defendants plead the bar of the statute of limitation, and also defend under the conveyance to one of them from the purchaser at the administrator’s sale.
The court gave a peremptory instruction in favor of the defendants, and the plaintiff has appealed.
The rights of the parties are to he determined by the homestead laws of the State which existed at the time of the death of H. C. Jarrett in the year 1869. That was under the Constitution of 1868, which provided that the homestead of the owner should, after his death, “be ‘exempt from the payment of his debts, in all eases, during the minority of his children, and also so long as his widow shall remain unmarried, unless she be the owner of a homestead in her own right.” Sec. 5, art. 12, Constitution 1868.
The homestead was not subject to sale for the debts of the decedent until the widow abandoned it by remarriage in the year 1884.
It does not appear from the pleadings or proof that any of the children were minors at that time, and the remarriage of the widow operated as an abandonment of it as a homestead.
Notwithstanding her abandonment of the land as a homestead, she still had the right to occupy the premises through her tenants by virtue' of her quarantine rights under the statute. Kirby’s Digest, § 2704.
Her occupancy was, therefore, not adverse to the heirs, and the statute of limitation did not begin to run against any of them so long as the occupancy of the widow continued. Brinkley v. Taylor, 111 Ark. 305, 163 S. W. 521.
The administrator’s sale to Foster was void for the reason that the probate court was without jurisdiction to order it prior to the abandonment by the widow. McCloy & Trotter v. Arnett, 47 Ark. 445; Bond v. Montgomery, 56 Ark. 563.
It is insisted by counsel for defendant that the allegations of the complaint are not sufficient to show that the property was the homestead of H. C. Jarrett at the time of his death, it being contended that the allegations only state conclusions of law on that subject.
We are of the opinion, however,that the allegations of the complaint are sufficient, inferentially at least, to set forth the homestead right, and that in order to properly raise the defect's in the complaint a motion to make more definite and certain would be required. No such motion was presented, and the evidence establishes specifically all the facts necessary to make the property the homestead of H. C. Jarrett at the time of his death.
We are of the opinion, therefore, that the court erred in giving a peremptory instruction in favor of the defendants. Reversed and remanded for a new trial.