The principal matter of complaint for which *71the plaintiff seeks to have the judgment of the probate court revised and aunulled is, that it declares the will of the plaintiff's devisor void, in so, far as it conflicts with the “legal and equitable rights” of the widow of the testator, the present appellee. But it is to be observed that the court by its judgment does not in fact annul any part of the will. The action of the court in this regard appears to have been confined to the mere declaration of an opinion upon an abstract question. It does not pronounce upon the validity of any part of the will in particular, but simply declares its opinion that it is “ in violation of the legal and constitutional rights of the said widow,” and is, in so far,void; and that she recover of the estate “ all her just, legal and equitable rights.” But nothing is adjudged to the widow in particular, and the court, having made this declaration of its opinion respecting the rights of the widow, proceeded to admit the will to probate. This mere declaration of opinion can not have the effect to invalidate any provision of the will, or to affect injuriously any right of the appellant. It is a mere abstraction, having no legal effect and presenting no subject matter for revision. The plaintiff apprehends that it will occasion litigation and embarrassment in obtaining partition of the estate. But this apprehension does not appear to be well founded. It can have no legal effect upon the rights of the appellant. It might induce the apprehension that the probate court entertained some opinions which, if they remained unchanged, would embarrass the plaintiff in obtaining his rights in that court upon a partition of the estate. But he had not sought a partition, and the apprehension that the court would decide erroneously in a suit thereafter to be instituted, was no ground of action or appeal.
The order of a subsequent term setting aside the homestead for the use of the widow and children, is not made a ground of complaint in the petition, though the widow’s assertion of a claim to it is; but that, of itself, can not give a right of action.
The appellant seems to apprehend that the action of the probate court will affect injuriously his ultimate right of property, or his estate in fee in the property now occupied as the homestead. But it is not perceived that there has been any action of .the *72court which can have such effect, or be in any manner prejudicial to the right of the appellant in the final distribution of the estate. The complaint of the petitioner amounts to this—that the probate court has declared its opinion that the will of the testator contains some disposition which is inconsistent with the rights of the appellee, and that she sets up a claim to the homestead, and that this opinion of the court and the pretensions of the appellee are a cloud upon the plaintiff’s title. But no complaint is made of any actual adjudication of the court touching the plaintiff’s rights, or of any act done by the appellee. It is mere matter of opinion and pretension on their part of which the plaintiff complains; and these cannot constitute a ground of action or appeal.
The order setting apart the homestead for the use of the widow and children, is not complained of. It was certainly proper, irrespective of the disposition of the fee by the will. The statute requires the court to set aside the homestead for the use of the widow and children, at the first term of the court after the inventory and list of claims have been returned, (Hart. Dig., art. 1154,) which may be before the solvency of the estate has been judicially ascertained. Though it may be subject to final partition and distribution, it is not assets in the hands of the administrator, but the use of it as a homestead is reserved to the family during the period of administration.
It is objected that the manner of proceeding upon the motion to dismiss was irregular, and so it appears. But no exception or objection was taken to the mode of proceeding. It was but an irregularity in practice, not affecting the decision of the case. It was objected to the petition that it was insufficient, and on that ground we are of opinion it was rightly dismissed, and that the judgment be affirmed.
Judgment affirmed.