Estate of Henningsen

RICHARDS, J.

There are two appeals involved in this proceeding, one an appeal from an order of the probate court setting apart a homestead to the surviving husband of the decedent out of the separate property of the latter; the other an appeal from an order of said court setting apart the exempt property of said estate to the surviving spouse. These appeals are prosecuted by the executor of the last will and testament of said deceased. The two appeals are predicated upon the same evidence; the questions of law are the same upon each appeal and are presented in a single set of briefs. They will, therefore, he considered and disposed of in a single opinion.

The respondent herein, R. M. Henningsen, and the deceased, Agues C. Henningsen, were, at the time of the death of the latter, husband and wife. They had been married and had lived together in that relation for about nineteen years up to about three months prior to the death of the wife, when, apparently, a discord arose between them. What property they -possessed was the separate property of the wife and consisted of the real property sought to be set apart as a probate homestead herein, of certain exempt

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personal property and of certain other moneys and properties not affected by these proceedings. At the time the relation between the spouses became strained the husband apparently had no property and was in need" of immediate means and asked his wife for three hundred dollars in money to relieve his situation. Trouble ensued. She told him to leave the house, and upon that or the following day the wife handed her husband a check for one hundred dollars, which contained the following statement below the name of the maker: “Payment in full for all claims you have against me.” She also at the same time offered back a ring which he had given her years before. The husband took the check, but refused the ring, and went away to live elsewhere in Oakland, wherein they had both theretofore resided, and did not return to or see his wife during the remaining few months of her lifetime, nor did he attend her funeral. His excuse for not doing so, given at the hearing of these proceedings, was that he had been told by her “to stay away from the house and never come near it”; and that he did not know that she was sick and had died until after she was buried. He further testified upon such hearing that the money she gave him was part of his own property of which she was possessed. During the course of probate of his deceased wife’s will, her husband, the respondent herein, presented the two applications above referred to, under the provisions of section 1465 of the Code of Civil Procedure. At the hearing thereon the foregoing facts were educed and at the conclusion thereof the trial court made and entered the two orders from which these appeals have been taken.