At the close of the argument Shaw, J., delivered the opinion of the court, Sloss, J., and Lawlor, J., concurring:
This is an appeal from an order setting apart a homestead to the widow of the decedent.
So far as the character of the property and its suitability for a homestead are concerned, the case cannot be distinguished from the cases of Heathman v. Holmes, 94 Cal. 291, [29 P. 404], Estate of Levy, 141 Cal. 646, [ 75 P. 317], and McKay v. Gesford, 163 Cal. 243, [Ann. Cas. 1913E, 1253, 41 L.R.A. (N.S.) 303, 124 P. 1016]. The decision of the lower court is sustained on that point on the authority of those cases.
In regard to the proposition that it is community property, that, of course, is a matter of evidence, the presumption being, to start with, that it was community property. Taking the evidence as a whole, there is enough to sustain the finding of the lower court that it was community property. That being the case, the court was justified in setting it apart in fee as a homestead.
The order is affirmed.