Firth v. Firth

While the estate of Joseph Bellamy Firth was in course of administration the court made an order setting apart to the surviving widow, Evelina L. Firth, a certain part of the real property of the estate as a homestead,—and also containing an adjudication about another matter which will be noticed hereafter. From this order Joseph K. Firth and Fanny Firth, heirs at law of the deceased and devisees under his will, appeal. They are adult children by a former marriage; he left no minor children.

The facts necessary to the determination of this appeal are these: All the property of the deceased was his separate property, and it was of the appraised value of $23,584. He left a will by which he devised to the widow a lot with a house thereon situated on Guy Street, in San Francisco, in which he had lived with her for several years immediately prior to his death. It was a suitable place for a residence and was of the appraised value of thirty-five hundred dollars. He also left her one thousand dollars in money, and directed that during the period of administration she should have forty dollars per month. The rest of his property he gave to others, the most of it going to the appellants herein. The property which the court set aside as a homestead was a lot twenty-five

The main contentions of appellant as to the part of the order setting apart the homestead are,—1. That the court had no power or jurisdiction to make the order, because the respondent had another residence at the time the order was made; and 2. That under the condition of the estate, and the circumstances presented, the making of the order was an abuse of discretion. Neither of these contentions is, in our opinion, maintainable.

The jurisdiction of a probate court to set aside a homestead to the surviving wife is not subject to the condition that she does not have any other property, or any other property fit .to live in. Such jurisdiction is excluded only when she has already a legal homestead; and a mere place fit to reside in is not a homestead unless it has been impressed with that character by certain acts required by the law to be done for that purpose. The code provides that if no homestead “has been selected, designated, and recorded, . . . the court must select, designate, and set apart, and cause to be recorded, a homestead for the use of the surviving husband or wife . . . out of the common property, or if there be no common property, then out of the real estate belonging to the decedent.” (Code Civ. Proc., sec. 1465.) (There is also another provision that if the probate homestead be selected out of the separate property of the deceased it must be only for a limited period; which provision was followed in the ease at bar.) This power and duty of the court to set apart the homestead is not, in any part of the statutory law, limited to a case where the widow has no other property; and if she has other property, it matters not how she had obtained it,—whether under her husband’s will or otherwise. Her right to a probate homestead is an independent right which she has in addition to any other right or property which she may have. A somewhat

Whether or not this court would be justified in any case in reversing an order setting apart a homestead merely on the ground that the order was an abuse of discretion need not be here considered; for there was certainly no such abuse in the ease at bar. It must be remembered that while our law is liberal to a wife with respect to community property,— that is, property acquired after marriage by the assumed joint efforts of both spouses,—yet with regard to the husband’s separate property she has scarcely any right at all. He may devise it all to strangers and leave her penniless. The old estate of dower is taken away. The' right to have a homestead for a limited period given her by the probate court is about the only interest which she can assert in a deceased husband’s property. In the case at bar the homestead awarded her is much less in value than her interest would have been under the law of dower; and there is no •warrant for holding that, in awarding it the court abused its discretion.

The order appealed from is modified by striking therefrom the following: “And the title to said lot of land with the dwelling-house thereon and its appurtenances is hereby vested in the heirs of said Joseph Bellamy Firth, deceased, subject to this order, judgment, and decree, and said homestead, and entirely free from further administration of said estate, that is, is hereby vested in said Evelina L. Firth, the widow of said decedent, said Joseph Kirk Firth, the son of said decedent, and said Fanny Firth, the daughter of said decedent, subject to this order, judgment, and decree, and said homestead, to wit, the undivided one-third part of said lot of land, with the dwelling-house thereon and its appurtenances, and the title thereto is hereby vested in said Evelina L. Firth, and .the undivided one-third part thereof is hereby vested in

Henshaw, J., and Lorigan, J., concurred.