The herald., 1894-07-25
A WIDOWS PETITION.
ONE INSTANCE WHERE AN ADMIN
ISTRATOR TAKES A BACK SEAT.
Her Husband Filed q Declaration OF
Homestead Before His Death, and
1t Comprised the Whole
Estate.

upon mooted question in probate law
which came up over the settlement o
the estate of Mr.. Nell. The amount
of property involved was not great in
value, but quite novel point OF law
was in question.
The widow OF the deceased petitioned
the court to have certain land, upon
which was. a dwelling house, set apart
to her, her husband. during his lifetime,
having filed declaration Of homestead
upon it. The evidence showed the
homestead to have been selected from
community property, and it was ad-
mitted to DO less than 5000 in value.
The petition was contested by the ex-
ecutor of the will of the deceased upon
the ground that the homestead consti.
tuted all the estate, and if the petition
was granted there would be no funds
with which to pay the costs OF the Rd
ministration.
Judge Clark, in considering the issues
raised. says that If the property selected
as a homestead constituted the entire
estate of the deceased, it would seem to
be liable for the costs and expenses of
administration, and that even though it
is not the whole or any portion of de-
cedent's estate, yet il probate proceed
ings are necessary the costs thereof
must be paid from some source.
In the course of the opinion filed by
the court he details at come length the
legislation affecting the question, Is a
homestead selected from community
property any part OF the estate OF a de-
ceased spouse1 He says that If the
filing of a declaration of homestead
upon community property works q
change in the title and creates a joint
tenancy with thu right OF survivorship,
it is of course not. But he says the
question is not free from doubt. After
reviewing the various legislative acts at
length Judge Clark says:
II am OF opinion, therefore, that q
homestead go selected forms no part of
the estate OF a deceased spouse; that to
that extent eection 1865, civil code, &c
amended, is not a statute OF descent or
succession, and the case of estate of
Hernden holds good as precedent. and
that surviving wife takes not by de-
scent but as Surviving joint tenant. In
Tyrrell Va. Baldwin, decided in 1889 Us
Cal, 470), the language of Chief Justice
Field in Gee vs. Moore is quoted, with
the title held by husband and vile in
homestead was not then involved.
And in the opinion in Rurkett vs. Bur-
kett (78 CAL, 310) it is said that the ef-
feet of declaring homestead ia to con-
vert the separate title of the husband
into joint title in the husband and
wife to the extent of the homestead.
But while homestead selected from
community property ia not q part
OF q deceased husbands estate. 1t is
not therefore liable for the costs OF adj
ministration of such estate, and no mo-
ton of the court, possibly, is necessary;
yet the law, &C. G. 2. Gee. 1475) pro-
vides that it shall be, by the court, set
apart to the use in which the title vests,
and as before said, the costs incident
to such proceedings must be paid from
some sourss. If there be sufficient
estate such costs must be paid there
from 20. @. p. s sec 1485)and il there be
no estate, then by the petitioner. The
policy and justice OF the rule which per-
mits the surviving wife to take the
homestead freed from the expenses OF
the funeral OF the deceased and other
costs of administration may be doubted,
but the remedy is with the Legislature
and not with the courts. And the fact
that the suit ana petition we're at the
time OF the selection OF the homestead
and the death of the deceased living
separate and apart, they not having
been divorced, cannot change the rule
The petition will be granted upon proof
OF the payment OF VII costs incident
tharatO -