Rosenaur v. Rosenaur

WILSON, J.

The question here is whether the court erred in refusing to award to a minor child a probate homestead from his father’s estate in these circumstances: The child is the natural son of decedent and a former wife, having resided with and been in the custody of his mother at all times since her divorce from his father; decedent had remarried and left surviving him a widow and two minor children of the second marriage with whom he resided at the time of his decease;

[462]

decedent left at least one parcel of tenantable real property-consisting of a building containing six apartment units and commercial store rooms.

This appeal is from the order denying the petition of the minor’s guardian for the setting aside of a probate homestead to him during his minority.

The authority of the court to set apart a homestead from property of a decedent is found in section 661 of the Probate Code, the applicable part of which reads: “If none has been selected, designated, and recorded . . . the court, in the manner hereinafter provided, must select, designate and set apart and cause to be recorded a homestead for the use of the surviving spouse and the minor children, or, if there be no surviving spouse, then for the use of the minor child or children. ...”

Pursuant to the code provision there are only two instances in which a homestead may be set apart, (1) “for the use of the surviving spouse and the minor children” or (2) if no spouse survives “then for the use of the minor child or children.” When either of these conditions exists it is mandatory upon the court to set apart a homestead.

(Estate of Barkley,

91 Cal.App. 388, 391 [267 P. 148];

Estate of Mason,

76 Cal.App. 315, 320 [244 P. 629].) However, when as in the instant case neither condition is present there is no authority for the awarding of a homestead since the right to a homestead is purely statutory.

(Estate of Branam,

66 Cal.App.2d 309, 315 [152 P.2d 354].) When a spouse survives a homestead cannot be set apart for a minor child alone but it must be for such spouse and the minor child or children. Hence since decedent left a spouse who still survives, the minor son of the former marriage is not entitled to have a homestead set apart for his use.