In re Estate of McCauley

Citations

• 50 Cal. 544

Syllabus

<p>Pbobate Coubt mat seiiEot Homestead.—When no homestead has been selected during the lifetime of the deceased husband, the Probate Court may set one apart for the use of the widow, and may, since the amendments of 1874 to the Code of Civil Procedure, adopt a manner of doing so.</p> <p>Idem.—If, in such case, the property to be set apart as a homestead is incumbered by mortgage liens, and cannot be partitioned without material injury, the Probate Court may direct it to be sold subject to the liens of the mortgages, and the homestead to be set apart out of the proceeds.</p> <p>ObDEB SETTINCr ASIDE HOMESTEAD DOES NOT DESTBOY LlENS.—The statute requiring the Probate Court to set apart a homestead for the surviving husband or wife, does not declare that the order setting apart the same shall destroy or impair any lien on the property, and such order does not have that effect, even if the Legislature has the constitutional power to destroy such liens.</p>