Opinion
Appeal from a judgment of the Superior Court of the county of Tuolumne.
COUNSEL:
Caleb Dorsey, for Appellant.
E. A. Rogers, for Respondents.
JUDGES: In Bank. Myrick, J. Sharpstein, J., Ross, J., McKinstry, J., Morrison, C. J., and McKee, J., concurred.
OPINION
MYRICK, Judge
Ejectment by an administrator. The defendant, E. C. Wetmore, was the widow of deceased. Since the death of deceased, she intermarried with her co-defendant. The court adjudged that the property was not subject to administration, and that the administrator was not entitled to the possession thereof, because the deceased left minor children who were entitled to have the premises set apart as a homestead; and the court made an order setting apart the said premises as a homestead for the use of said minor children. This was error. It is not for a court of law, in an action of ejectment, to set apart premises as a homestead; that function appertains to a court sitting in probate in the matter of the estate of the deceased. The Superior Court, sitting in the case of Richards v. Wetmore, Ejectment, could not assume the functions of the Superior Court sitting in the matter of the Estate of Richards, Deceased, even though both may be in the same county, with the same judge presiding. We are not considering the effect of the will of deceased upon the right of the defendant E. C. Wetmore to the possession of the premises, nor the right of those of the children of the deceased, who are minors, to apply to the Superior Court sitting in probate to have the premises set apart as a homestead. Judgment reversed, and cause remanded for further proceedings.