The appeal should be dismissed. If appellant is entitled to the homestead, to the exclusion of the minor children, as prayed for in her petition, and which the Probate Court refused to grant, her remedy is by mandamus against the Probate Court. The matter in issue between appellant (petitioner) and opposing heirs, was as to what constituted the homestead, which the Court did not decide against appellant, and could not decide at all. (Estate of James, 23 Cal. 417.) Whatever the homestead may be, it is not the exclusive property of the widow. (Probate Act, Sec. 125; Estate of Orr, 29 Cal. 103.)
JUDGES: Sanderson, J.
OPINION
SANDERSON, Judge
As they now read, there is some inconsistency between the provisions of the Probate Act and those of the Homestead Act, in relation to the disposition of the homestead upon the death of the husband. Both Acts were first passed in 1851, and, in the respect named, they were then consistent with each other. By the tenth section of the Homestead Act, it was made the duty of the Probate Court, " upon the death of the head of the family," to set apart the homestead " for the benefit of the surviving wife and his own legitimate children." (Stats. 1851, p. 298, sec. 10.) By the one hundred and twenty-first section of the Probate Act it was provided " that all property by law exempt from execution," should be set apart by the Probate Court " for the use of the widow or minor child or children." (Stats. 1851, p. 463, sec. 121,) which, of course, included the homestead, if at the time exempt by law; if not, it was still further provided, in section one hundred and twenty-four, that a homestead, of the quantity and value therein described, should be set apart. By the one hundred and twenty-fifth section it was provided that all property so set apart " for the use of the family" should be the property of the widow, if the deceased left a widow and no minor child; if a widow and minor child, one half should belong to each; if more than one child, one half to the widow and the other to the children in equal shares; if no widow, the whole to the minor child or children. Thus it is apparent that, from the first, the Probate Act was intended to operate in aid of the Homestead Act, and not in opposition to it--to follow, and not lead.
Since then changes have, from time to time, been made in both Acts. Each has been amended without much regard to the cognate provisions of the other. Upon the particular point under consideration the Probate Act remains substantially as it was first enacted. The one hundred and twenty-first section has been amended in other particulars, but still provides that the homestead shall be set apart " for the use of the family," (Stats. 1865-6, p. 851,) but the one hundred and twenty-fifth section remains as at first. A radical change, however, has been made in the Homestead Act, which now provides that, upon the death of either husband or wife, the homestead property shall vest absolutely in the survivor, subject only to such debts or liabilities as were a legal charge upon it at the time of the death of such husband or wife. This change was made in 1862. (Stats. 1862, p. 519.) To have maintained entire consistency, the one hundred and twenty-first and one hundred and twenty-fifth sections of the Probate Act should also have been amended in like manner. The one hundred and twenty-fifth section of the Probate Act, however, so far as it is repugnant to the amendment to the Homestead Act of 1862, must yield to the latter, the latter being the last will of the legislature.
It is true that the one hundred and twenty-first section of the Probate Act has been amended since the amendment of the Homestead Act of 1862, and the language, " for the use of the family," was retained; but the leading object of that section was not to regulate or direct the course of the title to the homestead, and therefore cannot be allowed to control it. So far as the Probate Act is concerned, the course of the title is regulated by the one hundred and twenty-fifth section. The effect of the one hundred and twenty-first section, so far as the question in hand is concerned, is merely to set the homestead apart and withdraw it from the assets of the estate, and not to direct the course of the title to it. (Estate of W. H. Orr, 29 Cal. 101.) This application seems to have been contested upon the ground that a portion of the property claimed as a homestead by the widow is not such property as can be held under the homestead laws. That question, however, counsel have not discussed, and it is doubtful whether the record fully discloses the facts upon which it rests. We therefore reserve the question for future consideration.
It is the duty of the Court below to first ascertain what was legally held as homestead property at the death of Wixom, and then set it apart for the use of the widow.
Order reversed and the case remanded for further proceedings.