In re the Estate of Lahiff

Citations

• 86 Cal. 151
• 24 P. 850
• 1890 Cal. LEXIS 991

Syllabus

<p>Estates of Decedents—Will — Homestead — Conversion — Power of Sale — Contingencies of Administration. — A will whereby a testatrix authorizes the sale of all her property, and attempts to dispose thereof in the form of money bequests, her property consisting of the premises she and her husband had occupied as a homestead, though not then protected as such by selection and recording, does not operate as an actual conversion of the property into money, and the beneficiaries take their interests subject and subordinate to all the contingencies of administration,1 and among others to the authority conferred by law upon the court to set the same apart for a limited period to the surviving husband as a homestead, as well as to appropriate the same for the payment of debts.</p> <p>Id. — Setting apart Homestead — Separate Property of Wife — Right of Surviving Husband. — Where no homestead has been selected and recorded during the lifetime of the decedent, it is the duty of the court to designate and set apart a homestead out of the community property, if there is any such, and if not, then for a limited period out of any separate property of the decedent suitable for the purpose; and though the husband could not have selected a homestead out of his wife’s separate property without her consent when living, this does not affect the power of the court to set it apart to him as such for a limited period after her death.</p> <p>Id.—Eff'ect of Unconfirmed Sale under Power.—The power of the court to set apart a homestead from the separate property of the decedent, after her death, is not defeated by the action of the executor in negotiating a sale under a power contained in the will, which is unconfirmed before the decree setting apart the homestead is made.</p>