In Re the Estate of McGee

SLOSS, J.

Hugh Patrick McGee died testate in January, 1902, leaving a widow, Catherine McGee, and six children, all of whom were over the age of majority. His estate consisted in part of a tract of 154.89 acres of land in Mendocino County, which was his separate property. During the lifetime of the decedent, his wife, Catherine McGee, had made a declaration of homestead upon this land. The decedent did not join in the selection and declaration. The will devised all of the testator’s estate to his six children in equal shares. It was duly admitted to probate in the superior court of Santa Barbara County, and at the close of administration a decree was made distributing the homestead tract to the heirs of the decedent, in the proportion of one third to the widow and two thirds to the surviving children and to the heirs of those of them who had died pending the administration of the estate.

The executor and the distributees other than the widow appeal from the decree of distribution.

The claim of appellants is that, as devisees, they were entitled to have the homestead property distributed to them, to the exclusion of the widow. Section 1265 of the Civil Code, upon which the appellants place their reliance, provides that a homestead selected as was the one in the ease at bar goes, upon the death of the person whose property was selected, to his

heirs or devisees.

On the other hand, the rule laid down by section 1474 of the Code of Civil Procedure is that the homestead, in such case, vests in the

heirs

of the person from whose property it was selected. The word “heirs” cannot be construed to include “devisees,” and section 1474 therefore operates, as was said in construing similar language in section 1468 of the Code of Civil Procedure, “to vest the title to the homestead in the heirs at law, and so to withdraw it from the disposition made by the testator under his will.”

(In re Walkerly,

108 Cal. 627, 655, [49 Am. St. Rep. 97, 41 Pac. 772].)

The turning point of the case is, then, whether section. 1474 of the Code of Civil Procedure or section 1265 of the Civil Code shall control where their provisions are conflicting. The question thus presented is no longer an open one in this court.

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