In Re Estate of Gallagher

McFARLAND, J.

This is an appeal by Mary Gallagher, widow of the deceased, from an order denying her application to have set apart to her as a homestead certain land of the estate.

The application was made under that part of section 1465 of

[97]

the Code of Civil Procedure which authorizes a probate court to set aside a homestead when “ none has been selected, designated, and recorded ” during the lifetime of the spouses. There is no dispute about the facts. The land sought to be set aside is farming-land, upon which there was no dwelling-house, and no building that could be used as a dwelling; and at the time of the husband’s death neither he nor the petitioner was living on the land. There had been no statutory homestead. The contention of respondent is, that the property involved was not of the nature and character of homestead property, and therefore could not be set apart as a homestead, under section 1465.

In the opinions in some of the cases cited by respondent— as, for instance,

Kingsley

v. Kingsley, 39 Cal. 665 (which, by the way, did not deal with the code provisions concerning home-' steads);

In re Carriger,

107 Cal. 618;

Wichersham

v.

Comerford,

96 Cal. 433;

In re Armstrong,

80 Cal. 71—there was, no doubt, some

dicta

not necessary to the determination of the cases upon the facts presented. And the expression used in some of those cases, to the effect that a probate homestead can be set apart only upon property which could have been dedicated, under the homestead act, immediately preceding the death of the husband, must be construed to mean only that it must be property which in its character is homestead property, —that is, a dwelling-house, with the land on which it is situated, and which could have been occupied as a home,—and not that it must be land on which the husband actually resided at the time of his death. In the case of a probate homestead, the court creates the homestead, and it may be carved out of any property of the estate suitable for a homestead. In the case of