Mattingly v. McDonald

WOOD, J. Petitioner appeals from an order of the probate court denying his petition to have certain property set aside as a homestead. He also appeals from an order denying his petition to have certain personal property exempt from execution set apart to him.

Petitioner is the surviving spouse of Florence M. Mattingly, deceased. In her will Mrs. Mattingly devised a certain lot with a building thereon known as 303 Onyx Avenue, Balboa Island, to two adult daughters as joint tenants and also devised to petitioner as residuary devisee a lot with a building thereon known as 217 West Avenue 37 in the city of Los Angeles. The last-mentioned property was at the time of her death and had been for many years the residence of petitioner and the decedent. Petitioner presented to the probate court a petition in which he asked that the Balboa Island property be designated as a homestead for his use as surviving spouse. The court refused to designate the Balboa Island property as a homestead and made an order designating the property at 217 West Avenue 37 as a homestead for petitioner’s use.

The Probate Code in sections 660 and 661 provides that a homestead must be provided for the surviving spouse. “If none has been selected . . . the court, in the manner hereinafter provided, must select, designate and set apart and cause [552]to be recorded a homestead for the use of the surviving spouse ...” It will be noted that the section does not provide that the court must set aside the parcel of land selected by the surviving spouse. The section merely provides that the court must select “a homestead”. In the present case the court did in fact designate a homestead for the surviving spouse and it is not contended that the property designated is not suitable for that purpose. From the wording of the section it is apparent that it was intended that the court could exercise its discretion in designating the property which should be set apart. Petitioner relies upon cases in which the trial courts granted petitions for homesteads from property other than that devised to the petitioners, the rulings of the trial courts being affirmed on appeal. We are referred to no ease in which it was held that the court was compelled to permit a surviving spouse to select a homestead from property which had not been devised to him.

Petitioner complains that he did not petition to have the property at West Avenue 37 set apart as a homestead. We fail to see how he has been injured by the order made. If he prefers to have this property free from the designation as a homestead the trial court will doubtless grant his request upon receipt of the remittitur.