Matheny

Appeal from decree of final distribution. Appellant, John A. Miller, is the devisee by the will of deceased of certain real estate situated in the city and .county of San Francisco. This real estate was the separate property of deceased in her lifetime, and was by order of court duly set apart to her surviving husband as a homestead for the term of five years, none having been selected by decedent or her husband. By decree of partial distribution all the estate was disposed of except the premises in controversy. The final’ decree distributed this property to the heirs at law of decedent.

The sole question presented by appellant to which he asks answer is: What is the effect of an order of a probate court setting apart, for a limited period, separate property of a decedent to the surviving spouse, which has already been devised to another .person and upon which no ante-mortem homestead has been filed?

It is conceded by appellant that the question is answered in the ease of In re Walkerly, 108 Cal. 627 ; 49 Am. St. Rep. 97 ; bet counsel says that there “the issue was involved in several' ■other perplexing problems, and was comparatively a minor factor in-the general result.” The…