35 Cal. 310 | Cal. | 1868
On the 16th of July, 1867, Albert Busse died intestate, leaving surviving him Jane Busse, his widow, and David E. Busse, his brother. There were no children, and the estate is to be divided between said widow and brother. He owned real estate in San Francisco, hut had not resided on it, nor had any portion of it, during his lifetime, been set apart, or dedicated as a homestead under the statute relating to homesteads. After his déath, on the petition of the said widow, the Probate Court, assuming to act under the provisions of section one hundred twenty-one of the Probate Act, as amended in 1866, and against the objection of the said brother, set apart for her sole use as a homestead, a lot, with the building thereon, which had been recently built for a residence, and completed the day before intestate’s death, of the value of four thousand five hundred dollars. The brother appeals. He claims that there is no power vested in the Probate Court to set aside property as a homestead for the benefit of the widow, where no homestead has been in any manner created, made, dedicated or recorded by the
Section one hundred twenty-one, as amended in 1865, reads as follows: “Upon the return-of the inventory, or at any subsequent time during the administration, the Court, or Probate Judge, may, of his own motion, or on application, set apart for the use of the family of the deceased all personal property which is by law exempt from execution, and the homestead, as designated by the general Homestead Law, or if no homestead has been designated, then one shall be set apart as provided by section one hundred twenty-four of this Act, whether the same has been recorded as such or not,” etc. (Stats. 1865-6, p. 851.)
Section one hundred twenty-four, referred to, provides: “If there is no law in force exempting property from execution, the following shall be set apart for the use of the widow or minor child, or children, and shall not be subject to administration: First—All spinning wheels, etc. * * * Second—The family Bible, etc. * * * Fifth—The homestead, consisting of any quantity of land not exceeding twenty acres, and the dwelling house thereon, with its appurtenances, not being included in any incorporated town or city; or instead thereof, a quantity of land not exceeding one lot in any corporated town or city, and the dwelling house thereon, and its appurtenances, to be selected by the widow, or if there be no widow, to be designated by the Probate Judge, and not to exceed in any case more than five thousand dollars in value.” (Stats. 1851, p. 463, Sec. 124.)
It is claimed by appellant that the words “then one shall be set apart as provided by section one hundred twenty-four of the Act” are limited by the first clause of section one hundred twenty-four, as well as by the fifth subdivision; that is to say, that said provision of section one hundred twenty-one, as amended, is to be read as follows: “If there is no law in force exempting property from execution,” there shall be set apart for the use of the family “the
We think the Probate Court was authorized to set apart the lot in question for the use of the Avidow.
Order affirmed.