Estate of Maxwell

1 Coffey 126

• Court: Superior Court of California, County of San Francisco
• Decided: March 10, 1884
• Docket: No. 2,625
• Status: Published

Opinion

COFFEY, J.

There is a proper petition before the court. If there were a defect of signature, it was cured under the Code (Code Civ. Proc., sec. 473.) by leave of the court.

The evidence of Appraiser Cornwell, a highly respectable citizen and property owner of Napa county, entirely disinterested and perfectly conversant with the circumstances of the Maxwell Ranch, is clear that the land selected can be segregated without detriment to the rest of the ranch, or impairment of any right in others than the applicant here.

This court must, upon proper application, set apart to the widow a homestead, if none has been selected in lifetime of decedent. The court has no discretion to deny the application: Estate of Ballentine, 45 Cal. 699; Estate of McCauley, 50 Cal. 546; Mawson v. Mawson, 50 Cal. 539.

It does not impair or diminish the right of the widow that there be no minor children. The homestead is to be set apart to the survivor. It is immaterial that the petition be on behalf of the widow alone. It could not here be otherwise. Her status is that of the “surviving wife” (Code Civ. Proc., sec. 1465). If a testator devised his entire estate —his separate property—his widow would still be entitled to a homestead: Estate of Moore, 57 Cal. 443.

If the property set apart be selected from the separate property.of the decedent, the court can only set it apart for a limited period, to be designated in the order: Code Civ. Proc., sec. 1468; Estate of Lord, 2 West Coast Rep. 131; Lord v. Lord; 65 Cal. 84, 3 Pac. 96.

It is suggested that there is a crop of wheat sown on the land. The crop should be reserved.

Application granted.

The Principal Case is followed in Estate of Tate, post, p. 217.