50 Cal. 539 | Cal. | 1875
The Probate Court set apart to the widow a homestead out of the separate estate of the deceased husband, none having been selected and recorded during the lifetime of the latter. The heirs at law appeal, and contend, first, that under the Code, as amended in 1874, the Probate Court has no power to set aside a homestead to the widow where none was selected in the lifetime of the husband; and second, that if the power exists at all, it is limited to the selection of a homestead from the community property, and has no application to the separate estate of the husband. It is not denied that section 1465 of the Code of Civil Procedure in terms authorizes the Probate Court to set aside a homestead, if none had been previously selected; but the same
Judgment and order affirmed.
Mr. Chief Justice Wallace concurred specially in the judgment.