72 P. 909 | Cal. | 1903
Out of the separate estate of Bernard Ernst Tittel, deceased, was set apart a homestead to the widow during her widowhood, under section 1465 of the Code of Civil Procedure. During the administration an order of family allowance was made in favor of the widow, in the sum of eighty dollars per month. This family allowance remained unpaid until it aggregated $3,370. It is still an unpaid charge against the estate. At the same time, the only property out of which this charge can be met is the estate in remainder of the heirs in the land so set apart as a homestead. The widow, therefore, petitioned that a sale of this remainder should be made, and the proceeds of the sale applied toward the liquidation of the indebtedness of the estate to her. This application was opposed, and the court denied the petition. The widow takes this appeal. The single question thus presented is, Did the order setting apart as a homestead a life estate in certain real property remove the remainder in fee in that property, which, by the terms of the statute, vests in the heirs, beyond the reach of the estate's creditors?
This question is for the first time before the court for adjudication. Section 1465 of the Code of Civil Procedure provides that where no homestead has been selected the court must select a homestead for the use of the surviving husband or wife and the minor children. Section 1468 of the Code of Civil Procedure fixes the title of the property so selected, and declares that if it has been selected from the separate property of the decedent the court can only set it apart for a limited period, and the title vests in the heirs. Section 1468 has been construed as a limitation upon the power of testamentary disposition, with the result that when a homestead has been so set apart by the court the remainder in fee, under the terms of the statute, vests in the heirs, to the exclusion of any devisees that may have been named in the will. (Estate of Walkerly,
Nor is this difference between sections 1474 of the Code of Civil Procedure, section 1265 of the Civil Code, and section 1468 of the Code of Civil Procedure, here under consideration, casual and accidental. It is a distinct difference, well founded in reason. The law has regard for the family as the basic unit of society, and for that reason protects the family home. In the case of the death of either spouse, in contemplation of the situation of minor and dependent children, it makes provision, securing the surviving spouse and such children in the homestead; and where the estate is of small value the law entirely cuts off the rights of the creditors, deeming it of paramount importance that the property of the deceased should be devoted to the maintenance and support of the family. Moreover, in the case of a homestead *152
declared during the lifetime of the owner, all who may give credit to the family do so with knowledge that they can have no recourse upon the homestead property for their debts. But by what process of reasoning can the conclusion be reached that the law will set aside the claims of creditors in the interest of heirs who are not dependent relatives, and who may be collateral merely to the remotest degree of kindred, and that this result shall be effectuated, not because of any express mandate of the law, but merely because the law says that title to a homestead so selected by the court in probate "shall vest in the heirs" subject to the homestead estate? The court has power, and in some instances has set aside such a homestead upon property to the value of thirty or forty thousand dollars. (Estate of Walkerly,
It is well settled that the heirs under a homestead order such as this take a vested estate, which they may alienate, and of which, therefore, they may be deprived by process of judicial alienation, as under execution, through insolvency, or the like. If their estate may not also be alienated at the instance of the creditors of the deceased, we must look elsewhere than to the language of the section to discover the reason. It is insisted that it is found in the opinion of this court in Estate ofHardwick,
We conclude, therefore, that as the estate of the heirs under such circumstances is alienable at their pleasure, and alienable by operation of law, it is likewise subject to the just demands of creditors of the estate, and the order appealed from is therefore reversed.
McFarland, J., Beatty, C.J., Lorigan, J., Shaw, J., and Van Dyke, J., concurred.