On May 2, 1877, the executors, at the request of said legatee, filed a petition praying for an order of sale of said saloon, on the ground that its chief value consisted in its good will, and that unless it could be kept open it would depreciate in value and become worthless, and that its stock of wines and liquors was diminishing by daily sales, and that they do not feel authorized to expend the money of the estate in replenishing it. An order of sale was accordingly made on said day, and the saloon was thereafter sold, with the assent of said legatee, for $2,000, and the sale confirmed by the Court.

An August 30, 1878, the executors filed their first account, from which it appeared that said saloon had been sold under said order of Court for $2,000, and the proceeds paid to the above named legatee by the executors.

On September 13, 1878, Maria Ricaud, widow of decedent, filed exceptions to said account, and contested said payment to said legatee, on the ground that the same was unauthorized and illegal, but the question was reserved by the Court for future consideration, and the account, with the exception of this item, settled.

On August 13, 1883, the executors filed their second account, to which exception was again taken by the widow, on the same ground.

The contestant also excepted to the amount claimed by the executors as commissions, the facts in relation to which matter are as follows:

There was included in the inventory and appraisement filed in the matter of the estate certain real property valued at $7,500, and commissions were claimed on this amount as part of the estate accounted for.

From the said account and report of the executors, it appeared that a suit in ejectment had been commenced. against the decedent for this property in his lifetime, and that after trial and appeal to the Supreme Court, subsequent to the death of the testator, the litigation ter

minated in a final judgment against the estate, and the property was surrendered to the successful parties.

The account was settled in accordance with the principles laid down in the following opinion.

Messrs. Jarboe & Harrison, attorneys for executors. Messrs. H. A. Powell and A. P. Needles, attorneys for widow.

COFFEY, J.-I. The claimant of the specific legacy (the saloon) can take only such interest in the property as the testator had a right or power to dispose of by will. It follows, therefore, that the proceeds of the sale of the saloon, to wit, $2,000, should be retired from the account and held subject to distribution, to be disposed of by the Court according to the circumstances at such time existing.

II. Commissions can only be allowed, according to the statute, "upon the amount of estate accounted for" by the executor. He cannot be said, in the sense of the statute, to have accounted for estate to which it has been determined the estate had no title, which it appears never belonged to the estate, and is not returned or accounted for in this account.

Estate of JAMES L. RIDDLE, Deceased. [No. 1,209. Decided April 27, 1885.]

Objections to Confirmation of Sale of Real Estate by Administrator Acting Under Unauthorized Appointment.

Administrator-Appointment of-Only on Petition of Applicant for Letters-Petition by Heir for Appointment of Other Person-Insufficient-Amendment-Sale of Real Estate-Additional Bond Required on-C. C. P., Sections 1371, 1389, Construed.

1. Petitions for letters of an administration must be in writing, signed by the applicant or his counsel and filed by the clerk. (Section 1371, C. C. P.)

2. It follows that a petition by an heir for the appointment of another person is insufficient, and an order appointing an administrator on such petition must fall.

3. Such petition is in effect no petition, and is not subject to amend

4.

ment.

The Court must require an additional bond from the administrator upon ordering the sale of any real property belonging to the estate. (Section 1389, C. C. P.)

[E. T.]

James L. Riddle died in Santa Clara County, in this State, but being a resident of San Francisco, and leaving estate therein, on October 8, 1881.

He left a will, bearing date February 2, 1881, in which Channing G. Fenner was named as executor.

On petition filed by Mr. Fenner, on October 13, 1881, the will was admitted to probate, he appointed executor thereof, and letters testamentary thereon issued to him, on October 28, 1881.

The executor died on April 22, 1883, while still acting as such.

On May 26, 1883, Grace L. Riddle, a daughter of the testator, filed a petition signed by Samuel H. Dwinelle, as her attorney, and verified by her, setting forth the facts, and praying for the appointment of David McClure as administrator of the estate of decedent with the will annexed.

On June 8, 1883, an order was made as prayed for by said petitioner appointing Mr. McClure, and on August 13, 1883, letters of administration with the will annexed were issued to him.

On December 17, 1884, Mr. McClure filed a petition for an order to sell certain real property belonging to the estate, and on January 28, 1885, an order of sale was made accordingly.

A sale was had pursuant to such order, and on April 8, 1885, Mr. McClure filed his return and account of sales, together with a petition for the confirmation thereof.

On April 23, 1885, a purchaser (J. C. Johnson) filed written objections to such confirmation, on the ground that the sale was not legally made, in this :

1st. That no petition in writing had ever been filed by David McClure, signed by him or by his counsel, for his appointment as administrator.

2d. That there was no administrator of the estate, and that the sale was without authority.

3d. That no bond was required in the order of sale, or ever given by Mr. McClure upon the sale, and that his original bond was only $3,500, while the amount bid for the property was $32,500.

The facts were correctly stated in the grounds of contest.

(Proceedings de novo were accordingly commenced, and new letters issued to David McClure May 29, 1885.)

Mr. F. J. French, attorney for objecting purchaser.
Mr. S. H. Dwinelle, for administrator cum test. ann.

COFFEY, J.-1. There is no petition on file here signed by David McClure or by his counsel. Grace Riddle's application that David McClure be appointed is not sufficient, as the person to whom letters are issued must apply by his own petition, signed by himself or his counsel. (Sections 1371, 1374, C. C. P.)

The order of June 8, 1883, had no proper basis as required by the foregoing cited sections, and it must fall.

2. An additional bond should have been provided for in the order of sale of the real estate. (Section 1389, C. C. P.)

The objections to the confirmation of the sale are sustained; they cannot now be cured by amendment; there being no petition, there is nothing to amend.

Estate of ROBERT N. TATE, Deceased.

[No. 5,084. Decided February 24, 1887.]

Application for Order Setting Aside Homestead.

Declared Homestead-Separate Property-Probate Homestead

in Separate Estate-Childless Widow-Extent of Limitation.

1.

A widow without minor children is entitled to have a homestead selected and set apart by the Court out of decedent's separate estate, there being no community property. Estate of Maxwell followed, 2 Syl., ante, p. 132.

2. The Court must set apart a homestead, if none has been selected in the lifetime of the deceased spouse. There is no discretion in the matter.

3. Separate property, upon which a homestead is declared during the marriage, vests upon the death of the owner in his heirs (in this case the widow and a daughter), subject to the right in the surviving spouse to have the property set, apart, as a homestead, for a limited period.

4. The right of the surviving spouse to a homestead in separate estate of decedent is limited to an estate for years, for life, or until the happening of some event, as marriage of survivor, as may be decreed by the probate forum. But the exercise of the Court's power is limited by a sound discretion acting upon the circumstances of the particular case; so, where the survivor is young and likely to remarry, a limitation for life might be indiscreet, but aliter where survivor is of an advanced age.

5. The purpose of the statute in giving a homestead right to the surviv-
ing spouse out of the decedent's separate estate is to provide a home
for the survivor, which no one can touch; merely depriving the sur-
vivor of the power of alienation.
[T. J. L.]

Mr. J. A. Hosmer, for applicant, Margaret E. Tate.
Mr. W. C. Burnett (Bartlett & Burnett), opposed.

COFFEY, J.-This is an application by Margaret E. Tate, surviving widow of Robert N. Tate, deceased, for an order of Court setting apart to her absolutely, as and for a homestead, a certain piece of real property mentioned in the estate of said deceased, situated on Post street, between Broderick and Baker, particularly described in her peti