Appeal from, the Probate Court of the City and County of San Francisco.

In 1854, Matthew Delaney went to reside with his family upon a tract of land in the limits of the City and County of San Francisco. The tract at that time was worth seven hundred and fifty dollars. Delaney inclosed the land with a substantial fence, and obtained his living by keeping horses, cows, etc., upon the land. Afterwards, on the first day of December, 1860, Mary Delaney, his wife, made, acknowledged, and filed for record the following declaration of homestead:

“ Know all men by these presents, that I, Mary Delaney, wife of Matthew Delaney, of the City and County of San Francisco, and State of California, do hereby declare and make known that I am married, and that I have made selection of and intend to claim the property hereinafter described as a homestead; that I am, at the time of making this present declaration, residing with my family on the premises hereinafter described, and that it is my intention to use and claim the same as a homestead, under and by virtue of the Act of the Legislature of the State of California, entitled ‘An Act to amend an Act to exempt the homestead and other property from forced sale in certain cases, passed April 21st, 1851, passed April 28th, 1860, and the Act thereby amended.’

“ The property so declared as claimed and intended to be used and claimed by me, as and for a homestead for myself and family, is situate, lying and being in the City and County of San Francisco, and is bounded and described as follows; that is to say, the lands bounded as follows, viz: On the east by Stevenson’s claim; on the south by the lands claimed by the United States, Arbor, and others; on the west by lands now claimed by one Eelson; and on the north by lands claimed by James M. McDonald and one Doyle, being part of Block 194, whole of Blocks 227, 238, 239, 240, 267, 268, 269, 270, and parts of Blocks 316, 317, and 318, in accordance with the ‘ Western Addition ’ to the City of San Francisco, as laid down on the official map of the City and County of San Francisco aforesaid.

“ In witness whereof, I have hereunto set my hand and seal, at the City and County of San Francisco, the first day of December, in the year of our Lord one thousand eight hundred and sixty, “Mary Delaney, [l.s.]”

The land had been surveyed into lots and blocks after Delaney settled on it. On the 19th day of December, 1865, Matthew Delaney died, leaving a will, in which he devised the land in different parcels to his wife and children. The will was probated, and Edward J. Delaney, son of the testator, was appointed executor. The surviving wife, on the 21st of February, 1866, applied for a monthly allowance, and the Court made an order allowing her one hundred dollars per month. July 16th, 1866, she filed a renunciation of her distributive share under the will, and petitioned for a distribution of the estate, claiming that it was common property. March 26th, 1868, she filed in the Probate Court a petition, asking the Court to set aside -the land to her, the survivor, because it was a homestead at the time of her husband’s death. Mary A. McCurrie, one of the children of the testator and the petitioner, appeared and opposed the granting of the petition, and on the 11th day of May, 1868, the Court denied the petition. From this order the petitioner appealed.

The other facts are stated in the opinion of the Court.