In re Estate of Schmidt

California Supreme Court Apr 26, 1892 No. No. 14489Published

Before: Belcher

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Holding. The probate court has discretion to select which portion of a decedent's separate property to set apart as a homestead, and such homesteads carved from separate property must be limited in duration rather than granted in fee simple.

Issues

Does the probate court have discretion to select the specific property to be set apart as a homestead when the applicant's preferred selection is not chosen?
Must a probate homestead set apart from the separate property of a deceased spouse be limited in duration, or can it vest absolutely in the survivor?

Disposition. affirmed

Quotations verified verbatim against the opinion

“The court is not bound by the wishes of the applicant, but should exercise its own discretion and good judgment; and: unless that discretion is abused, its action will not be disturbed on appeal.”

“In our opinion, it was intended by the amendment to change the rule declared in Mawson v. Mawson, 50 Cal. 539, and to take from the court the power to set apart homesteads selected from the separate property of the deceased, except for a limited period.”

Synopsis

Probate Homestead — Construction of Code — Duty of Probate Court. — The purpose of section 1465 of the Code of Civil Procedure, which provides that if no homestead has been selected, designated, and recorded by a deceased spouse during his life, the court must select, designate, and set apart one, is to provide the family of the deceased with a home, where they may live and be protected as against creditors and heirs; and it is the duty of the court to select and set apart for the home such part of the estate, consisting of a dwelling-house and the land on which the same is situated, as, in view of the value of the estate and all the circumstances surrounding it, shall seem just and proper.

Id. — Disregarding Wishes of Applicant —Grant of Lot not Applied for — Discretion — Appeal. — The court is not bound by the wishes of the applicant, but should exercise its own/discretion and good judgment; and unless that discretion is abused, its action will not be disturbed on appeal, although it may have denied the application, and set apart another lot not applied for.

Id. — Homestead Set apart out op Separate Property of Husband — Limitation — Power of Court.—Section 1468 of the Code of Civil Procedure as amended in 1881, providing for the setting apart of a homestead by the court, and that “ if the property set apart be a homestead selected from the separate property of the deceased, the court can only set it apart for a limited period, to be designated in the order, and the title vests in the heirs of the deceased, sub¡ect to such order, ” applies to probate homesteads selected and set apart by the court; and it is proper for the court in such case to set apart the homestead for and during the lifetime of the survivor, and not absolutely, and it has no power to set it apart except for a limited period.

Belcher, C. The deceased, Schmidt, died testate in January, 1891, leaving surviving him his widow, Lina Schmidt, the appellant, and three adult children, issue of a former marriage. His estate consisted of a parcel of land, described as six adjacent lots, situate on Pacific Avenue and Walnut Street, in the city of Alameda, and a small amount of personal property. The lots were his separate property, and in the inventory and appraisement returned and filed, the values placed upon them and the improvements thereon were as follows: Lot 1, seven hundred dollars; lot 2, one thousand dollars; lot 3, eight hundred dollars; lot 4, eight hundred dollars; lot 5, four hundred dollars; lot 6, eight hundred dollars. The lot at the corner of the streets — described as lot 1 — was vacant, and on each of the other lots was a one-story frame dwelling-house. Prior to his death, four of these houses were rented by deceased to tenants, and the other one — situate on lot 6—was occupied by himself as his place of residence.

Deceased and his surviving wife were married about five years before his death, and they lived together as [336]husband and wife, in his said house on lot 6, until May 8, 1890, when she left him, and thereafter lived separate and apart from him.

Deceased made no provision for his wife in his will, and she had no property of her own. No homestead was selected, designated, or recorded by deceased or his wife during bis life.

After the will had been admitted to probate, and the inventory and appraisement of the estate returned and filed, Mrs. Schmidt presented to the court her petition, asking, among other things, that the vacant lot and the two lots adjacent thereto, numbered 1, 2, and 5, be set apart to her as a homestead. At the hearing of the petition, it was shown that the whole property was encumbered by a mortgage for fifteen hundred dollars, and that, including the mortgage, claims against the estate had already been presented exceeding the sum of three thousand dollars. It was also shown that the property was appraised at its full value, and that there was no material difference between the lots as regards their use for a homestead, and that the sale of the remaining lots would not be affected, whichever one should be selected and set apart as a homestead.

The court denied the prayer of the petition as to the lots asked for, but made an order setting apart to the petitioner, as a homestead for and during her natural life, lot 6. The appeal is from this order.

In re Estate of Schmidt

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