Appeal from the Prohate Court of the City and County of San Francisco.

James Ballentine died May 13th, 1872, leaving a widow, Sarah Ballentine, a son, James H. Y. Y. Ballentine, a daughter, Jane M., wife of Samuel Jaques, and likewise the widow and minor children of a deceased son, John P. A. Ballentine, who had died about one month prior to his father. Mrs. Jaques resided in Few York City. By his will, made December 9th, 1871, James Ballentine made his widow his sole executrix, declared that his property was all common property, and devised to the widow his personal property, and one half of the common property, being the half to which the will says she was entitled by law. She was directed by the will, at the end of two years, to sell all the real estate, and retain one half the net proceeds, and pay the other half to his three children, share and share alike. The will was probated on the petition of the widow, and letters testamentary issued to her, July 8th, 1872. The real estate belonging to the estate, lying in San Francisco, was appraised at thirty-two thousand one hundred dollars. There was a house on the land, which had been occupied by the deceased and his family as a residence before his death, and the widow continued to occupy it after his death. August 22d, 1872, she applied to the Probate Court to have this residence set apart to her as a homestead, for her sole use and benefit. Commissioners were appointed, who selected as a homestead the lot on which the widow resided, and the Court, on the 23d day of September, 1872, confirmed their report. October 5th, 1872, Mrs. Jaques and her husband moved to vacate the order declaring the widow entitled to a homestead, because:

“ First—That no real estate of said deceased was ever in his lifetime constituted or declared a homestead.

“ Second—That it is contrary to the terms and manifest intent of the will of said deceased that any portion of his real property should be set apart to his said widow as her homestead, and exempted from administration as a part of his estate.

“Third—That said widow having proved said will, obtained letters testamentary thereon, and accepted the provisions made in her behalf therein, and now acting and claiming thereunder, has made her election, and is now estopped from claiming anything contrary to the provisions and intent of said will.

“Fourth—That the said widow is not entitled by law to such homestead.

“Fifth—That if the setting apart of such homestead is within the discretion of this Court, this Court ought to reject said widow’s application therefor as inequitable and unjust to the children of said deceased.”

The Probate Court was of opinion that it had no discretion in the matter, and denied the motion, and entered a final decree setting apart the homestead, from which Mrs. Jaques and her husband appealed.