The bequest of one hundred dollars made by the will of the decedent to the petitioner, his surviving wife, was not accepted by her, and does not bar her claim to have a homestead set apart for the benefit of herself and the minor child of the deceased, as provided by the Code of Civil Procedure, sec. 1465. Nor does the agreement for a separation, made between the decedent in his lifetime and his wife, the petitioner, bar her claim to such homestead. Upon the facts appearing in this case, it was the duty of the Probate Court, under the provisions of the section of the Code above cited, to set apart for the use[*720] of the surviving wife and the minor child of the deceased, the real estate, or a portion thereof, as a homestead.

Order reversed and cause remanded. Remittitur forthwith.