Walkerly v. Bacon

Works, J. This is an appeal by the trustees and legatees under the will of the testator from an order setting apart to the widow and child of the deceased a homestead.

[580]The whole of the property of the deceased was his separate property, and was of the value of five hundred thousand dollars over and above the indebtedness. The homestead occupied by the family at his death was of the value of eighteen thousand dollars, and was indivisible. The court below set apart this homestead to the widow and child for a limited time. It is contended that this was error, for the reason that the court could not set apart a probate homestead greater in value than five thousand dollars.

The provisions of the code authorizing a homestead to be set apart to the family of a decedent, where none has been selected before his death, contains no limitation as to the value of such homestead. (Code Civ. Proc., secs. 1465, 1468.) There is such a limitation where a homestead is declared before his death. (Code Civ. Proc., vsecs. 1474, 1475.) And in that case, where it is sought to have the same set apart to the family after his death, provision is made for a sale of the property and payment of five thousand dollars to the family as or in lieu of the homestead, where it exceeds that amount in value, and cannot be divided. (Code Civ. Proc., sec. 1476.) There is no provision for the payment of money in lieu of the property where no homestead has been declared, and this court has held that it cannot be done in this class of cases. (Estate of Noah, 73 Cal. 590.) Therefore, if we hold in this case that a homestead exceeding five thousand dollars in value cannot be set apart, we must hold that the court is wholly without the power to set apart any homestead.

Counsel for appellants rely upon the following cases as supporting their contention that the homestead set apart must be limited to not exceeding five thousand dollars in value. (Estate of Burns, 54 Cal. 223; Kearney v. Kearney, 72 Cal. 591; Estate of Noah, 73 Cal. 590; Kingsley v. Kingsley, 39 Cal. 666.) It must be conceded that some of the language used in these cases supports the [581]position taken by the appellants. But a careful examination of them reveals the fact that they do not decide the question.