In re the Estate of Tompkins

Terry, C. J., delivered the opinion of the Court—Baldwin, J., concurring.

The questions presented are, 1st. Whether the whole of the common property is assets of the deceased husband to be administered by his personal representative ?

2d. Whether the homestead constitutes a portion of such assets ?

By our statute, the entire common property is subject to the absolute disposition and control of the husband during coverture, and is liable to be executed for his debts. It is also provided, that “ upon the dissolution of the community by the death of either husband or wife, one-half of the common property shall go to the survivor and the other half to the descendants of the deceased husband and wife, subject to the payment of the debts of the deceased.”

Appellant contends that by a proper construction of this section only that portion of the common property which descends to the heirs of deceased is subject to the payment of the debts of the intestate.

This position is not tenable. During the lifetime of the parties the whole of the common property is subject to the debts of the husband, and the Legislature will not be presumed to have intended that the death of the party should deprive his creditors of recourse against one-half of the common property, unless such a construction is required by the obvious meaning of the language employed.

We are satisfied, however, that no such intention can be legitimately gathered from the language of the section; on the contrary, it sufficiently appears that the Legislature intended that the whole common property should be subjected to the payment of the debts of deceased. Whatever ambiguity there may be in the language of that part of the [125]section quoted in appellant’s brief, is explained, and the meaning of the section made clear by the remaining portion, which he seems to have overlooked : “ If there be no descendants of the deceased husband or wife, the whole shall go to the survivor subject to such payment."

On the second point, we are satisfied that the homestead is not assets in the hands of the administrator.

Under the decisions of this Court, the homestead estate is a sort of joint tenancy, with the right of survivorship as between husband and wife, and cannot be destroyed except by the concurrence of both in the manner prescribed by law. Taylor v. Hargous, 4 Cal. 268.