In re Armstrong

Belcher, C. C. The deceased left surviving him a widow, Armilda Armstrong, but no children. His estate was all community property, and consisted of certain personal property and two tracts of land, one containing eighty and the other one hundred and sixty acres, These tracts were situated about fifty miles apart, and the value of both of them was less than five thousand dollars. Prior to his death the deceased resided with his wife on the eighty-acre tract, and afterwards the widow continued to reside thereon. No homestead was ever selected by either husband or wife during the lifetime of deceased. In due time the widow presented to the court having jurisdiction of the estate a petition asking to have both tracts set apart to her as a homestead, under the provisions of section 1465 of the Code of Civil Procedure. The application was opposed by nine relatives and heirs at law of deceased, on the grounds, — 1. That the petition did not show that any homestead was ever selected, designated, or recorded during the lifetime of deceased; and 2. That the petition did not show that there were any minor children of the petitioner or of the deceased. The court made an order setting apart as a homestead to the petitioner the eighty-acre tract on which she resided, and refused to set apart to her the other tract.

Both parties have appealed from the order.

It is urged on behalf of the opposing heirs that since the amendment of section 1465 in 1880, the court has had no power, where no homestead was selected during the lifetime of the decedent, to set apart a homestead to a surviving husband or wife, unless there were minor [73]children. The section as amended reads as follows:

“ Upon the return of the inventory, .... the court may, on its own motion, or on petition therefor, set apart for the use of the surviving husband or wife .... the homestead selected, designated, and recorded.....If none has been selected, .... 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,” etc. It is claimed that the words “and the minor children” limit the power of the court so that it can make no order unless there are such children. But we think it clear that the words have no such meaning or effect. The sentence means only that a homestead is to be set apart for the use of the surviving husband or wife and the minor children, when there are minor children, and is not to be construed as limiting the power of the court to set apart a homestead for the use of the surviving husband or wife when there are no such children. That this is so is made evident by section 1468 of the same code, which provides that “when property is set apart for the use of the family, in accordance with the provisions of this chapter, if the decedent left a widow or surviving husband, and no minor child, such property, is the property of the widow or surviving husband.”