Mills

John Mills, in his lifetime, was the owner, as his separate property, of two parcels of adjoining land of one hundred and sixty acres each. In the administration of his estate the court set apart to plaintiff, his surviving widow, twenty-five acres on the northerly end of the entire tract, including thereon the dwelling house and other improvements which had been used and occupied by the family in farming the land. By a decree of distribution the entire tract of 320 acres was distributed, in undivided shares of one-third each, to plaintiff and defendants, as tenants in common, subject to said homestead. Plaintiff entered into occupancy of the homestead and ever since has been in the enjoyment thereof.

The complaint is for a partition of 295 acres, leaving the twenty-five acre homestead undisposed of. Defendants resisted, claiming that the entire tract should be partitioned in the action and if the homestead stood in the way as an impediment, the entire estate should either be-sold and the proceeds divided, or if partition of the whole cannot be made the complaint should be dismissed or the consideration of the action postponed until such time as just and suitable partition can be…