De Etcheborne v. Auzerais

Citations

• 45 Cal. 121

Syllabus

<p>Devise in Will—What it Includes.—A devise in a will made to executors in trust for heirs, of all the testator’s property, real and personal, ■wheresoever situated, includes the homestead of the testator and his family</p> <p>Authority oe Executors to Sell.—If, in a devise to executors in trust for heirs, the testator expresses a desire that his homestead shall not be sold unless necessary, and that the same shall he used hy his wife and children as a home, the executors have authority to sell the homestead, if it becomes necessaiy.</p> <p>Estoppel Abusing from Acceptance of a Devise.—If, in his will, the testator devises to his wife a portion of his property, provided she elects to accept the bequest in lieu of what the law may set aside to her, and the wife accepts the devise, she and her grantees are estopped from sotting up title to a homestead which the law would have set aside to her.</p> <p>Pleading an Estoppel.—An estoppel which is of equitable cognizance must bo pleaded, or it will not be considered on the trial.</p>