In re Estate of Stuart — 3 Coffey 231

Majority

p. 231

Estate of J. C. G. STUART, Deceased.

Headnote

Estate of Limited Value—Setting Apart to Widow.—Under section 1469 of the Code of Civil Procedure, as amended in 1897, the court cannot set apart an estate under $1,500 for the joint benefit of the widow and children; the whole of the estate must be assigned “to the widow.”

Application to set apart an estate under $1500 to the widow and children of the decedent, under section 1460 of the Code of Civil Procedure.

Until 1897, the section provided that the court should assign the estate “for the use and the support of the widow and minor children.”

The section was amended in 1897 and that provision eliminated. As it now stands the section provides that the estate shall be assigned “to the widow of the deceased, if there be a widow.”

p. 232

The provision of the former section was as follows: That the court should assign the estate "for the use and support of the widow and minor children if there be a widow and minor children, and if no widow, then for the minor children, if there be any, and if no children, then for the widow.”

The corresponding provision of the present section is that the court shall assign the estate “to the widow of the deceased, if there be a widow, if no widow, then to the minor children of the deceased, if there be minor children.”

It seems from a consideration of the section before and after the amendment of 1897 that the court cannot now set apart such an estate for the joint benefit of the widow and the children. The express provision of the statute, as it formerly stood, requiring and allowing this to be done, has been stricken out and replaced by plain provisions that the whole of the estate shall be assigned “to the widow of the deceased, if there be a widow.”