In re the Estate of Noah

McKinstry, J. Deceased left a will wherein no provision was made for his widow, Harriet T. Noah, the appellant. The will was duly probated September 28, 1883, and on the sixth day of August, 1884, appellant [591]petitioned the Superior Court for an order setting apart a homestead out of the real property of the. estate, “ or for such other or different order as may be just and proper in the premises.” There was no community property, and the only separate real property of the deceased at the time of his death was a certain lot in San Francisco, covered entirely or partially by a brick building four stories high, and which was and had been used exclusively for business purposes.

The answer of the executors to the petition of the widow, beside the facts above mentioned, set forth the matters averred in the answer to the application of the widow for an allowance, as contained in the transcript in The Matter of the Estate of Joel Noah, ante, p. 583. It is averred in the petition for homestead that the property above described “cannot be divided without material injury.”

In the view we take, it is unnecessary to inquire what might have been the legal effect of the post-nuptial contract given in evidence, had there been any property out of which a homestead could have been carved, or whether the court below erred in overruling the objection to the introduction of that contract in evidence.

Appellant contends the order of the court below refusing to set apart a homestead should be reversed, because the court did not find upon the issues made by the pleadings. But if the findings were proper, the bill of exceptions fails to show that they were not waived.

Section 1465 of the Code of Civil Procedure provides, if no homestead (as wTas the case here) has been selected, designated, and recorded during the lifetime of the deceased, “the court must select, designate, and set apart, and cause to be recorded, a homestead for the use of the surviving husband or wife, and the minor children, ..... out of the common property, or if there be no ■common property, then out of the real estate belonging to the deceased.”

[592]