Robson v. Meder

NOURSE, P. J.

Plaintiff sued as executrix to recover rent from the surviving spouse of deceased for use of the premises which were occupied by the family at the time of decedent's death. Defendant had judgment and plaintiff appeals on the judgment roll.

The trial court found that from the date the property was acquired the decedent and the surviving husband occupied it as their home, that the surviving husband continued in the possession and occupancy of the premises under legal right and now holds p.ossession under an order of the probate court setting the premises apart to him as a homestead during his lifetime.

There is only one issue presented by the record and that is whether section 660 of the Probate Code means that the surviving spouse may remain in the home premises without payment of rent until the inventory is filed.

The material portions of this section read: “The decedent’s surviving spouse and minor children are entitled to remain in possession of the homestead, the wearing apparel of the family, the household furniture and other property of the decedent exempt from execution, until the inventory is filed. Thereupon or at any subsequent time during the administration, the court, on petition therefor, may in its discretion set apart to the surviving spouse, ... all or any part of the property of the decedent exempt from execution.”

The word “homestead” is used here in its popular rather than legal sense. It means the dwelling house in which the decedent and the surviving spouse resided at the time of the decease. “Both in the Constitution and in the statute the word ‘homestead’ is used in its ordinary or popular sense— or, in other words, its legal sense is also its popular sense. It represents the dwelling house, at which the family resides, with the usual and customary appurtenances, including outbuildings of every kind necessary or convenient for family use and lands used for the purposes thereof.”

(Gregg

v.

Bostwick,

33 Cal. 220, 227 [91 Am.Dec. 637].) This use of the term is further approved in

Keyes

v.

Cyrus,

100 Cal. 322,

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