In Re Estate of Krieg

Anton Krieg died testate, leaving a widow, adult children by his first wife, and a minor child by his second wife. The children, including the minor, were to take the residuum of the estate by definite fractional parts. The will provided for the widow as follows:

"To my beloved wife Margaret Krieg, I bequeath and devise the sum of thirty thousand dollars ($30,000). This in addition to the real property now occupied by us as our home on San Bruno avenue, having a frontage of seventy-five feet by a depth of one hundred feet, together with all the furniture and household utensils therein contained to which she shall be entitled and which I hereby request the court to set apart to her and our minor child Lawrence as a homestead:

"In view of the fact that all my property was acquired by me before my marriage to my wife and is separate property, I ask my wife to accept the foregoing provision made for her in lieu of all right of community and in full of her distributive share, either as heir at law or otherwise, subject however to a further reasonable family allowance to be fixed by the court:

"In case my wife Margaret Krieg, contrary to my wishes and expectations insists on receiving her share of the community property, if any there is, then it is my will that she shall receive her said share of the community property but *Page 723 shall take nothing else under this will except the homestead and a reasonable family allowance."

Administration of the estate proceeded as usual until Margaret Krieg and her son, Lawrence Krieg, filed a petition asking that the real property described in the above quotation be set apart to them as a homestead but that the fee be found to be in Margaret Krieg. The elder children of the testator opposed such disposition of the property, and after a full hearing the court held with them that the widow was not entitled under the terms of the will to a distribution of the land in fee. An order was made setting apart the property in question to Margaret Krieg, the widow, as a homestead for her life and to Lawrence Krieg, the minor, during the term of his minority. From this order and the decree this appeal is taken.

The sole question is whether or not the will justified the ruling of the probate court upon the meaning of the language relating to the property occupied by the widow.

That it was separate property is necessarily conceded. Such property may ordinarily be set apart to the survivor or the children for a limited time only, to be determined by the court. (Code Civ. Proc., secs. 1465-1468, inclusive.) When so set apart the property remains subject to administration. Unless the language of the will compels a different interpretation, the court has done with this separate property of the testator all that under the law it may do.