— 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 *532separate 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.