But in the absence of the her right to the homestead. provisions of the will showing that the testator intended that the gift to his wife should be in lieu of the homestead, the general rule is that she will not be put to her election.40 The general rule may be stated to be that the power of testamentary disposition is subordinate to the authority conferred by statute on the probate court, no homestead having been declared during the decedent's lifetime, to appropriate the property of a decedent for the support of 39 McCormick V. McNeel, 53 Tex. 15; Matter of Little, 22 Utah 204, 61 Pac. 899; In re Blackmer, 66 Vt. 46, 28 Atl. 419; Nelms v. Pabst Brewing Co., 93 Wis. 140, 66 N. W. 244. As to the nature of cases calling for election, and the manner in which the intent to put the widow to her election must be expressed in the will, see §§ 818-821. As to the doctrine of election as applied to wills, see §§ 813-839. If the devise of the homestead to the widow is upon condition that she pay the testator's debts, she can not, if she elects to take under the will, take the homestead free from liability for such debts. See Nichols v. Lancaster, 17 Ky. L. 777, 32 S. W. 676. But the rule is otherwise in Wisconsin. See Pym v. Pym, 118 Wis. 662, 96 N. W. 429. 40 Matter of Firth, 145 Cal. 236, 78 Pac. 643; Palmer v. Palmer, 47 Fla. 200, 35 So. 983; Ball v. Ball, 165 Mo. 312, 65 S. W. 552; In re Blackmer, 66 Vt. 46, 28 Atl. 419. The rule under the constitution of Michigan is that the widow, there being no children, may claim the homestead even though she accepts the provision made for her by the will.-Koster v. Gellen, 124 Mich. 149, 82 N. W. 823. It has been held that the right of the widow to the homestead is not defeated although she accepts the provisions made for her by the will, although the claim for the homestead is in conflict with such provisions. Wooten V. House, (Tenn. Ch.) 36 S. W. 932; Mason v. Jackson, (Tenn. Ch.) 57 S. W. 217. Under the Utah statute, where the estate is solvent, the value of the homestead set apart to the widow is deducted from her distributive share unless the decedent in his will has shown an intent that there shall be no such reduction. In re Little, 22 Utah 204, 61 Pac. 899. 43 his surviving widow and minor children, and of setting apart the homestead for their use."1 Such a statutory provision is a limitation upon the power of testamentary disposition.42 Thus the court may allot as a homestead property specifically devised. But under a statute providing for an allowance for the support of the decedent's widow which directs that nothing in the provisions of the act authorizing such allowance "shall be permitted to conflict with the provisions of any last will," if the will of the testator disposes of his whole estate and contains the direction that all his debts shall be paid, thus leaving nothing undisposed of out of which such allowance might be made except by defeating the express provisions of the will, the right to such allowance is lost, the word "conflict" being construed to mean that the will shall be supreme where the complete execution of its provisions does not admit, expressly or impliedly, the making of such an allowance. 14 § 1425. Right of Surviving Spouse or Minor Children to Have Homestead Set Apart, if None Had Been Selected Prior to Death. The statutes of many jurisdictions provide that, if during the life of a decedent no homestead has been duly selected and recorded so that upon the decedent's death it passes to the surviving spouse or minor children, the probate court having jurisdiction of the decedent's estate 41 Sulzberger v. Sulzberger, 50 Cal. 385; Estate of Lahiff, 86 Cal. 151, 24 Pac. 850; In re James' Estate, 38 S. D. 107, 160 N. W. 525. 42 Estate of Walkerley, 108 Cal. 627, 655, 49 Am. St. Rep. 97, 41 Pac. 772. 43 In re Davis, 69 Cal. 458, 10 Pac. 671; Estate of Huelsman, 127 Cal. 275, 59 Pac. 776. 44 Carey v. Monroe, 54 N. J. Eq. 632, 35 Atl. 456. is directed, upon proper application, to select and set aside to the surviving spouse or minor children a homestead carved out of the real property of the estate.45 In California, where the rule of community property prevails, the court is required to select the homestead from the community property, if any there be; if there be no community property, then it may be selected from the separate property of the decedent.48 The requirement that the homestead be selected out of community property prevails irrespective of the fact that the widow is entitled by law to one-half of such property, the right of the probate court to carve a homestead out of the estate being in the nature of a charge upon the estate as much as is the payment of debts.47 The right of a widow to have a homestead set aside to her is an independent right, in no wise depending upon the fact that she has or has not separate property of her own.48 The power and duty of the court to allot a homestead to the surviving spouse or minor children is paramount to the decedent's right of testamentary disposition. The right of inheritance, the power of testa 49 45 Smith v. Shrieves, 13 Nev. 303, 308; Horn v. Tufts, 39 N. H. 478, 485; Harrison v. Oberthier, 40 Tex. 385; Howe v. Adams, 28 Vt. 541, 544. The wife and minor children of a decedent are entitled to have set apart to them, as their absolute property, a homestead and all the exempt personal property of the estate. The statute is manda tory and was evidently intended to secure and preserve the home for the benefit of the family, where they may live and be proIII Com. on Wills-23 tected against creditors and heirs. -In re Syndergaard's Estate (Snydergaard v. Marx), 31 Utah 490, 88 Pac. 616. 46 Cal. Code Civ. Pro., § 1465; Lord v. Lord, 65 Cal. 84, 3 Pac. 96; Weinreich v. Hensley, 121 Cal. 647, 54 Pac. 254. 47 Estate of Still, 117 Cal. 509, 512, 49 Pac. 463. 48 Estate of Firth, 145 Cal. 236, 78 Pac. 643. 49 Estate of Lahiff, 86 Cal. 151. 24 Pac. 850; Estate of Huelsman, 127 Cal. 275, 59 Pac. 776. mentary disposition, and the nature and mode of proceedings for administration are within the exclusive control of the legislature. Heirs at law or devisees are not deprived of property without due process of law merely because the same statutory law which provides that they may take property by bequest, devise, or under the rules of succession likewise provides that as against them a homestead may be set apart out of the real property of the decedent to the surviving spouse or minor children.50 The court is not bound by the wishes of the applicant as to the particular parcel of realty which shall be set aside as a homestead, but it is a matter within its discretion."1 § 1426. The Same Subject: Term "Family" Defined: Loss of Right by Separation or Remarriage. The term "family" is often used. Generally this refers to two or more persons living under the same roof as The power and duty of the probate court to set apart a homestead to the widow or minor children is not limited by the fact that the decedent left a will by which he disposed of the property sought to be so set apart.— Estate of Davis, 69 Cal. 458, 10 Pac. 671. 50 Otto v. Long, 144 Cal. 144, 77 Pac. 885. It is not taking property without due process of law.-Estate of Bump, 152 Cal. 274, 92 Pac. 643. 51 Estate of Schmidt, 94 Cal. 334, 29 Pac. 714. Partnership property can not be set apart by the probate court as a homestead to the widow of a deceased member of the firm. Kingsley v. Kingsley, 39 Cal. 665. Property held by the decedent as a tenant in common or in joint tenancy is not subject to be set aside as a probate homestead.Cameto v. Dupuy, 47 Cal. 49; Estate of Carriger, 107 Cal. 618, 40 Pac. 1032. A probate homestead can not be selected in tracts of land widely separated. If separate parcels are so selected, they must at least be so near together that they could be occupied and used for the purpose of a homestead; and in this respect there is no difference between a homestead set apart by the probate court and one selected under the homestead law.-Estate of Armstrong, 80 Cal. 71, 22 Pac. 79. kindred and dependents and under one head, but the word as used in statutes regarding setting apart of a homestead is not so restricted in its meaning as to exclude the only surviving member of the family of the decedent.52 The term "family" is synonymous with surviving wife and children.53 But as to the right to have a homestead carved out of the estate and set apart to her use and for her benefit, a surviving wife may lose her status as the widow or as of the family of her deceased husband by reason of having lived separate and apart from him for some years prior and up to the time of his death.54 And the right of the widow to have a homestead set aside to her terminates when she loses her status as the widow of the decedent by reason of her remarriage.55 § 1427. The Same Subject: Manner of Selection of Probate Homestead. The general homestead laws provide, as a rule, for the manner in which a homestead may be declared. This is 52 Estate of Lamb, 95 Cal. 397, 407, 30 Pac. 568. 53 Phelan v. Smith, 100 Cal. 158, 170, 34 Pac. 667. 54 Wickersham v. Comerford, 96 Cal. 433, 439, 31 Pac. 358. The widow of a decedent who at the time of his death and for some time prior thereto had been separate and apart from him and not entitled to support from him, is not a member of the decedent's family within the meaning of section 1469.-Estate of Bose, 158 Cal. 428, 111 Pac. 258. As to the effect of antenuptial and other agreements, see § 1433. As to effect of divorce or remarriage on the widow's right to an allowance, see § 1434. As to effect of death of widow, see § 1435. As to the effect of desertion or misconduct on the part of the wife regarding the widow's allowance, see §§ 1436, 1437. 55 Estate of Boland, 43 Cal. 640, 642. See, also, Estate of Harrington (Harrington v. Union Trust Co.), 140 Cal. 244, 248, 98 Am. St. Rep. 51, 73 Pac. 1000, where the wife contracted a second marriage because of her husband disappearance for the statutory period. |