29 Cal. 101 | Cal. | 1865
The order of the Court refusing to direct a sale of the homestead for the purpose of satisfying the alleged mortgage claim of C. A. Brown, is not erroneous. Section four of the Homestead Act (Statutes 1862, p. 519,) provides that “the homestead property shall, upon the death of the husband or wife, vest absolutely in the survivor and be held by the survivor as fully and amply as the same was held by them, or either of them, immediately preceding the death of the deceased, and shall not be subject to the payment of any debt or liability contracted by or existing against the said husband and wife, or either of them, previous to or at the time of the death of such husband or wife, except such debt or liability as the homestead was subject to at the time of the death of such husband or wife.” Thus the homestead can be sold, after the death of such husband or wife, under legal process, only in such cases as it could have been sold during the lifetime of the deceased. Those cases are specified in the second section of the same Act, and are confined to mechanic’s, laborer’s, vendor’s and mortgage liens lawfully obtained. In harmony with these provisions of the Homestead Act, the one hundred and twenty-first section of the Probate Act directs the Probate Court to set apart from the assets of the estate the homestead
Order affirmed.