Mawson v. Mawson

By the Court: The Probate Court set apart to the widow a homestead out of the separate estate of the deceased husband, none having been selected and recorded during the lifetime of the latter. The heirs at law appeal, and contend, first, that under the Code, as amended in 1874, the Probate Court has no power to set aside a homestead to the widow where none was selected in the lifetime of the husband; and second, that if the power exists at all, it is limited to the selection of a homestead from the community property, and has no application to the separate estate of the husband. It is not denied that section 1465 of the Code of Civil Procedure in terms authorizes the Probate Court to set aside a homestead, if none had been previously selected; but the same [542]section adds, “In the manner provided in article two of this chapter.” Article two of that chapter relates to the setting apart of the homestead by the Probate Court when one had been selected in the lifetime of the husband, and prescribes the method by which it is to be set apart. By the amendments of 1874 the method was somewhat modified, and the former provisions on that subject were repealed. The argument is that the particular method originally provided, having been suspended or repealed by the amendments of 1874, the Probate Court has no longer the power, under section 1465, to set apart the homestead in the manner provided in article two of that chapter, the manner there provided having been abrogated; and that the manner being the measure of the power, the power itself ceases when it can no longer be exercised in that manner. But if it be true that the “maimer” originally provided has been abrogated in an absolute sense, and not merely modified by the amendments of 1874, the result would be that by section 1465 power is conferred on the Probate Court to set apart a homestead, but there is no “manner” provided by law in which it is to be done. In that event, ■ section 187 of the Code of Civil Procedure furnishes the remedy by providing that “when jurisdiction is, by this code or any other statute, conferred on a court or judicial officer, all the means necessary to carry it into effect are also given, and in the exercise of the jurisdiction, if the course of proceeding be not specifically pointed out by this code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.” The court, therefore, had the power to set apart the homestead, and we are of opinion that it can be set apart out of the separate estate of the husband. Section 1465 provides in terms, that it may be set apart “out of the real estate belonging to the decedent;” and section 1468 provides that when set apart, “if the decedent left a widow or surviving husband, and no minor child, such property is the property of the widow or surviving husband,” but if there be minor children, they are to take a specified proportion of it. It is true that in dealing with homesteads selected and recorded