rehearing">

On Application for Rehearing

STAKELY, Justice.

Upon application for rehearing it is earnestly insisted that the court was in error in holding that the decree of the probate court operated to vest a fee simple title in the widow, Mrs. M. A. D. Freeman, because the petition on which she sought to have the homestead set aside to her did not .allege that the property sought to be set aside as a homestead constituted all of the real estate owned by the decedent at the time of his death. But there is a difference where the court has jurisdiction by reason •of the presence of administration proceedings upon the estate of the decedent husband under what was § 7931 of the Code of 1923 (§ 674, Title 7, Code of 1940), and the situation where the widow seeks .to have the homestead set apart to her when no administration of the estate is sought under what was § 7948 of the Code of 1923 (§ 694, Title 7, Code of 1940). This distinction is shown in Bank of Columbia v. McElroy, 231 Ala. 454, 165 So. 105; Simpson v. Simpson, 254 Ala. 648, 49 So.2d 314. In the case at bar the proceedings by which Mrs. M. A. D. Freeman, the widow of Y. W. Freeman, sought to have the homestead set. apart to her, were in connection with administration proceedings, which had been instituted on the estate of Y. W. Freeman, deceased. There was, therefore, no need for any allegation in her petition filed under § 7931 of the Code of 1923, that the lands sought to be set apart as a homestead were all the lands owned by the decedent at the time of his death, but only an áscer-tainment by the court that such was the situation.

' The application for rehearing is overruled.

FOSTER, LAWSON and SIMPSON,_ JJ., concur.

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