Estate of Huelsman

HENSHAW, J.

This is an appeal from an order directing the executors of the above-entitled estate to pay off and discharge a mortgage lien on the probate homestead which had been set apart to the widow of the deceased.

The deceased left a will in which he devised to his widow a one-half interest in a farm in Sacramento county, and also a one-half interest in the personal property on the farm. The remainder of his estate, with a trifling exception, was left to a daughter and son, children of a former wife. At the time the will was made, the farm, which was appraised at the value of two thousand three hundred dollars, was unencumbered, but afterward it was mortgaged by the deceased to secure the payment of a thousand dollars. The entire estate was the separate property of the husband. Before the time for approving claims against the estate had expired the court, upon application of the widow, set aside the whole farm as a homestead. The order so setting aside the homestead did not limit it to a life estate in the widow, hut set it aside to her absolutely. This, of course, was erroneous, but the time to appeal from the order having expired, and no appeal having been taken, and the order, though erroneous, not being void, title in fee under the order vested in the widow.

(In re Moore,

96 Cal. 522;

Fealey v. Fealey,

104 Cal. 354; 43 Am. St. Rep. 111;

Hanley v. Hanley,

114 Cal. 690.) Despite the fact that the farm had been specifically devised, one-half to the widow, the other half to the two children, it was competent for the probate court to set it aside ns a home

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stead, for the right of a testator to devise is subordinate to the power in the probate court to sequester and set apart the property for the shelter, care, and support of the family.

(Sulzberger v.

Sulzberger, 50 Cal. 385;