In re Ackerman

Fox, J. Application by the surviving husband for an order setting apart to him a homestead out of the separate property of the estate of his deceased wife. The. application was opposed by the heirs of deceased, and upon hearing of the matter, was denied. From the' order denying such application appeal is taken to this-court.

From the findings, it appears that the lot which the court was asked to set apart to the surviving husband as a homestead was the separate property of the deceased wife. It was so inventoried by the applicant, who administered the estate, was appraised at the sum of two thousand one hundred dollars, and constitutes all the property of the estate; that no homestead had ever been [209]declared thereon, and that" no part of it had ever been occupied as a homestead or place of residence by the deceased or her husband during her lifetime; that she died September 17, 1885, leaving no children, father or mother, but leaving her husband and a sister, Ysabel Morante, her next of kin and heirs at law.

It further appeared that for thirteen years before her death, deceased and her husband had occupied as a homestead and residence a dwelling-house and lot situate in another part of the city, and which was the community property of applicant and his deceased wife; that on the 5th- of May, 1873, the deceased had duly executed and recorded a homestead on the lot so occupied by herself and husband, and the same had never been abandoned; that since the death of his said wife, the applicant had sold the said last-named lot (the homestead aforesaid) for three thousand dollars, and appropriated the same to his own use, paying his debts existing at the time of the death of his said wife.

After the death of Mrs. Ackerman, her sister, Ysabel Morante, died, leaving a will, and leaving a husband and two children her heirs at law and devisees, who are the contestants here.

"Under this state of facts, it is contended that under section 1401 of the Civil Code, immediately upon the death of the wife, the entire community property, without administration, went to the surviving husband. That is true, but so much of it as was at the time impressed with the character of homestead went to the survivor, not merely as community property, but as a homestead, subject to no other liability than such as existed or had been created under the provisions of the title on homesteads. (Code Civ. Proc., sec. 1265.) It was protected to the survivor of the family, in the same manner that it had been to the whole family, and was still a homestead. (See also Code Civ. Proc., secs. 1474,1475.) The death of one of the spouses did not