delivered the opinion of the Court—Norton, J. concurring.

Jeremiah C. James, husband of the appellant, and father of the respondents, died intestate, February 2d, 1862. Previous to, and at the time of his death, his children, the respondents, resided in the State of Hew York. The premises in controversy were the common property of the intestate and his wife, and occupied by them as a homestead. During the lifetime of the intestate, in April, 1860, his wife, the appellant, filed a declaration of homestead, in accordance with the statute then in force. Soon after the death of the intestate, the appellant was appointed administratrix of the estate, and on the ninth of July, 1862, upon her application, the Probate Court set apart to her use, as the family of the intestate, the homestead and certain personal property. Afterwards, the respondents filed their petition in the Probate Court, praying for a partition of the property thus set apart to the widow, they claiming the undivided one-half, or one-quarter to each, as the descendants and heirs of the intestate. The application was opposed by the appellant; but the Probate Court granted the prayer of the respondents, from which decree she takes this appeal.

The property was set apart to the use of the family of the deceased, in accordance with the provisions of Sec. 34, of the Act of 1861, amending Sec. 121 of the Probate Practice Act, which reads as follows: “ Upon the return of the inventory, or at any subsequent time, during the administration, the Court, or Probate Judge, may, of his own motion or on application, set apart for the use of the family of the deceased, all personal property which is by law exempt from execution, and the homestead, as designated by the general Homestead Law, or by Sec. 124 of this Act.” (Stat. 1861, 636.) Sec. 124 (Wood’s Dig. 403), defines what personal property and homestead shall be thus set apart. Sec. 125 provides to whom such property, thus set apart, shall belong. But since the date of this law, the Legislature, in 1860, amended the Homestead Law, and among other things provided that “ from and after the filing for *418record of said declaration, the husband and wife shall be deemed to hold said homestead as joint tenants; and all homesteads heretofore appropriated and acquired by husband and wife, shall be deemed to be held by such husband and wife in joint tenancy.” (Stat. 1860, 311.) The distinguishing incident of a title by joint tenancy is, that the entire tenancy, or estate, upon the death of one of the joint tenants, goes to the survivor, and vests in him, absolutely. (4 Kent’s Com. 398.) It would seem from this statute, that it was the intention of the Legislature that the homestead should vest in the surviving husband or wife, absolutely, and not descend to the heirs of either.

But the appellant contends, that the Probate Court has no jurisdiction of this proceeding, instituted by the respondents. It was held by this Court, In the Matter of Tompkins' Estate (12 Cal. 114), that the homestead does not constitute any part of the assets of the estate of the deceased husband or wife; that upon the death of the head of the family it is made the duty of the Probate Court to set apart the homestead for the benefit of the family of the deceased; and after this is done, the Court has no further control over it. It was further held, that what the rights of the surviving wife were, in and to the homestead, was a question to which the jurisdiction of the Probate Court did not extend. We think the Probate Court is not the proper tribunal to litigate questions, or afford the relief asked, in this case ; that a proper action should have been brought in the District Court, of the proper county, where the homestead is situated, which has full power and authority to hear and determine the questions involved, and to afford such relief (if any) as the parties may be entitled to.

The order and decree of the Probate Court is therefore reversed, and the petition of the respondents is dismissed.