dissenting:
The question in this case is, does the setting apart of a twelve months support to a widow and certain minor children of her and her deceased husband, by the ordinary, vest the property in such widow and children to the exclusion of other minor children of the deceased husband *803to such an extent as to make such setting apart by the ordinary color of title in favor of the widow and her children named in the application to the ordinary, which, with possession of the property for the statutory period, will bar the other minor children of the husband by a former wife.
I maintain that the setting apart of the property by the ordinary for a twelve months’ support was not a judicial but a ministerial act, unless objections to the return of the commissioners had been made, and when the ordinary passed upon the objections this action was judicial, not ministerial, and unless objections be filed there is no plaintiff and defendant before the court — no case; so that the mere filing and recording of the returns of the commissioners as provided by §2573 of the Code, by the ordinary, are merely ministerial acts, such as were done by the ordinary in the present case. The object of all the provisions of the statute is to provide for the widow and all the minor children of the deceased husband for twelve months after his decease, so that creditors of the husband shall not deprive the widow and children of this support from the husband’s estate.
Under the laws of this state, when a person dies his real estate descends to his heirs at law, subject to be sold by his administrator for the payment of his debts, as personal property is, and all of his children inherit equally per capita. But this rule of descent is changed when property has been set apart to the widow and children of the deceased husband. Then the same vests in and becomes the property of the widow and all the minor children of the deceased husband, whether the children be by a former wife or not; and if there should be adult children, they will not be entitled to any part of the property so set apart, though it may be the whole of the property left by the deceased ancestor. Thus it is as to the property set apart; another rule is adopted as to the distribution of intestates’ estates. Until the property is so set apart, then the gen*804eral rule of distribution applies; but immediately after the property is set apart, then the same vests in the widow and all the' minor children of the deceased husband. Code; §§2574, 2576.
What relation do the widow and minor children sustain to each other as to the property set apart? That they are tenants in common as to this property all admit, and no one can doubt. The law casts the title, by the act o ? the ordinary setting apart the property, upon the widow and all the minor children of the deceased husband. Those children by a former wife, if they be minors, take, under the law, equally with the children by the last wife, they are tenants in common as to such property set apart. The application made to the ordinary being by the widow for herself and her three minor children, there being no mention of the two minor children by a former wife of the husband, and the setting apart to the applicant, by the ordinary, did not change the law. When this property was set apart by the ordinary, the law came in and vested the same in the widow and all the minor children of the de ceased husband, those left out of the application as well as those embraced therein. This was the force of the law, and no act of the widow or ordinary could break or impair this force of the law ; so that the widow and her children took this property upon the same terms, to the like extent, and no more, as the two minor children of her deceased husband whose names were left out of the application. Such was the operation of the law, and when the widow with her children went into possession of this land set apart, as aforesaid, her possession was the possession of all the children of her deceased husband; they were tenants in common; they held this land per my et per tout, and all the relations and the law regulating or applying to tenants in common applied' to these parties.
This widow went into possession of this land with her children under the setting apart by the ordinary; she then became a tenant in common with the other children of her *805deceased husband; her possession was their possession; she did no act save to go into and enjoy this property, which she had a right to do; and this was not inconsistent with the rights of the two minor children of her husband by a former wife; there was no actual ouster, because all the acts and conduct of the widow was entirely consistent with her rights to this property and the rights of the other co-tenants. What did she do which amounted to an actual ouster as to these defendants in error, her co-tenants ? All that is shown is that she went into possession and used this land for the support of herself and children; this she had the right to do; this does not constitute an actual ouster of her co-tenants; if so, then the possession of one co-tenant is not the possession of all. There was no demand by the plaintiffs in the bill, who were the children of the deceased husband by a former wife, until'a short while before the commencement of this suit, and when such demand was made, they were refused to be let into possession with the widow. This was the first and only notice which they ever had that the widow claimed the exclusive - possession of this land, and this was but a few weeks before the commencement of this suit. §2303 of the Code provides as follows: “There can be no adverse possession against a co-tenant until actual ouster, or exclusive possession after demand, or express notice of adverse possession.” I think I have shoAvn that both plaintiffs and defendants were tenants in common; that they held this land by one and the same right; that the widow and her children who went into possession of this land did no act which-amounted to an actual ouster until the demand was made upon them; that there was no exclusive possession by them until this demand was made; that there was no express notice ‘of adverse possession on the part of the widow until the demand was made by the plaintiffs, and that this demand being made only a few weeks before the bringing of this suit,, the plaintiffs are not barred of *806their rights by the statute of limitations. This being- my opinion, I think the decree rendered by the court below should be affirmed.