Weinreich v. Hensley

Citations

• 121 Cal. 647
• 54 P. 254
• 1898 Cal. LEXIS 969

Syllabus

<p>Estates of Deceased Persons—Homestead—Devolution of Title.—The devolution of title to the homestead premises upon the death of one of the spouses is regulated by section 1474 of the Code of Civil Procedure and section 1265 of the Civil Code; but the former section, as amended, having been enacted ten days later than the latter, is to be deemed the latest expression of the legislative will upon that subject.</p> <p>Id.—Homestead upon Separate Estate—Nonassent of Owner—Power to Limit Estate of Heirs.—Section 1474 of the Code of Civil Procedure deals merely with the descent of the property from which the homestead was selected; and the provision therein, that a homestead selected from the separate estate of a deceased spouse, without the assent of the owner, descends to the heirs, “subject to the power of the superior court to assign it for a limited period to the family of the decedent,” is not to be construed as conferring upon the court any power of limitation of the estate of the heirs. Such power of limitation is found in section 1465 of the same code, by which the court is authorized to select a homestead from the separate estate, if not selected or assented to by the owner in his lifetime, to cases where there is no common property from which to select it.</p> <p>Id.—Setting Apart Homestead from Separate Estate — Discretion — Power of Court.—The court has discretion in determining whether it will set aside a homestead from the separate property of the decedent not selected by him in his lifetime, and what particular separate property it will set aside, and is not required to set aside the property selected by the survivor. It also has discretion in fixing the time during which the separate property set aside shall be held as a homestead. It has no power to select and designate property of a greater value than five thousand dollars.</p> <p>Id.—Cessation of Homestead—Order of Court. — A homestead selected from the separate estate of a spouse,' without the assen