In re the estate of Moore

— William H. Moore died intestate in Santa Cruz County in 1871, leaving a widow, Helen M. Moore, and five children. In March, 1872, Thomas W. Moore, a brother of the deceased, was appointed administrator of his estate, and on July 27,1891, an order and decree was made settling the final account of the administrator, and also making a final distribution of the estate. All of the parties affected by this order and decree appeal.

1. In the year 1877, the Moore ranch, belonging to the estate of the deceased, together with the cows thereon, was leased to one Bradley. The season was very dry, and the ranch did not produce feed enough to keep the cows during the ensuing winter, and they were pastured on a farm belonging to the administrator, Bradley agreeing to pay three hundred dollars therefor, one half of which would belong to the administrator and the balance to his tenant. It seems that Bradley failed to make the payment, and the administrator advanced to his tenant the portion to which he was entitled for the pasturage of the cows, and the court allowed this payment to the administrator as a credit in the settlement of his account. In so doing, the court erred. The cows were…

— I concur in the order reversing the judgment, and agree to every proposition stated by Mr. Justice De Haven, except the one relating to the homestead. I am of opinion, that it being conceded that the property out of which it was carved was *532 separate property of deceased, the court could not—had no power to — set aside a homestead in fee; that the fact being admitted and shown by the record, no appeal from the order was necessary; the court can now ssy, and should say, on final distribution, that the homestead was set apart only for a limited period; that the time for dis. tribution having arrived, the land must be treated as part of the estate.

A petition for a rehearing having been filed, the court added to the above opinion, on December 30,1892, the following statement: —

It was proper to charge the administrator with interest upon the sum advanced by him to the widow, and he is entitled to charge the amount of such interest against the portion of the estate to be distributed to her.

De Haven, J., McFarland, J., Harrison, J., Paterson, J.

Rehearing denied.