In re the Estate of Boland

43 Cal. 640

• Court: California Supreme Court
• Decided: April 15, 1872
• Docket: No. 2,474
• Status: Published

Opinion

By the Court,

Niles, J.:

Conceding, for the purpose of this case, that the property in question could be set apart to the widow, under the provisions of the Probate Act, notwithstanding the will of John Boland, it is evident that the widow could acquire no homestead interest in the property until an order of the Probate Court, or Judge, was made, setting it ajiart to her. It difiera from the case of a homestead created during the existence of the community, by a compliance with the provisions of the Homestead Act, the title to which vests in the wife upon the death of the husband, by right of survivorship. In the latter case the property becomes the property of the widow by operation of law. In the case presented it could only become hers by the decree of the Court or Judge. If there could be any doubt at what time the right of the widow attaches to the land, and withdraws it from administration, it is settled by the provisions of section one hundred and twenty-five of the Probate Act: “When property shall have been set apart for the use of the family, in accordance with the provisions of this chapter, if the deceased shall have left a widow and no minor child, such •property shall be the properly of the widow. H he shall have also a minor child or children, the one half of such property shall belong to the widow, and the remainder to the child,” etc.

The right of Margaret Lane to have a homestead set apart to her from the estate of her former husband, John Boland, must, therefore, be determined from the facts as they existed on the 3d of January, 1870, when the order of the Probate Court was made. This was nearly nine years after the death of John Boland. Margaret, his former widow, had been for over seven years married to her present husband, Lane. The only child of John and Margaret Boland had married, and was no longer under her mother’s charge or control.

Sections one hundred and twenty-one, one hundred and twenty-four, and one hundred and twenty-five of the Probate Act, under which the order was made, make provision for but two classes—the widow and the family of the deceased.

Margaret Lane occupied neither of these positions. Her widowhood terminated by her marriage with Charles Lane, and she then became a member of his family. Whatever right she may have once had to have the property set apart for her use, she lost when she lost the status upon which the right depended.

Order and judgment reversed, and cause remanded.