Estate of Moskowitz

WOOD, P. J.

Petitioner Magdolna G. Moskowitz married Ben

Z.

Moskowitz (decedent) about one year prior to his death. During the marriage, they lived in an apartment in a 4-unit apartment building which was the separate property of Mr. Moskowitz, and the other apartments were rented. No homestead had been set apart in said property, or in any part thereof, at the time of his death. Mr. Moskowitz was survived by petitioner and two adult sons and an adult daughter. The son, respondent Al

J.

Morse herein, was appointed executor of Mr. Moskowitz’s will. Petitioner instituted the present proceeding for an order setting apart the entire apartment building as a probate homestead (Prob. Code, § 661 et seq.). The court ordered that an undivided one-fourth interest in the building be set apart and vest in petitioner for a period of eight years, or until petitioner’s death, whichever first occurs. Petitioner appeals from the order. (Prob. Code, § 1240.)

Appellant contends that the court was required to set apart the entire apartment building as a probate homestead, and could not set apart an undivided fractional interest therein without the exclusive right to possession of the entire building or of a part thereof.

At the time of his death, Mr. Moskowitz was 81 years of age and Magdolna (petitioner) was 54. They had been married approximately one year, during which time they had lived in an apartment in a 4-unit apartment building which was decedent’s separate property. While they lived there, the other three apartments were rented for a total amount of $250 per month. (Decedent's son rented an apartment for $85 per month, decedent’s daughter rented an apartment for $65 per month, and another person rented an apartment for $100 per month.)

Decedent’s will (which was admitted to probate) provides in substance that his estate be divided in four equal parts among Magdolna and his three children; that Magdolna receive $3,000 cash; that at Magdolna’s request, decedent has transferred a $5,000 bank account to her name during the marriage; that Magdolna shall have the apartment and its furnishings free from expense until she is eligible to receive Social Security benefits, and if the (apartment) building is sold, she shall receive $65 per month until eligible for Social Security benefits.

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