In re Estate of Tompkins

         Does Mary M. Tompkins take one-half of deceased's estate in her own right, immediately upon his death, as his wife, or only after final settlement and accounting for the whole thereof, as administratrix? and does she take the homestead, also, as her own property, immediately after his death? or only jointly with and in trust for the minor heirs, and therefore accountable to them (though not to creditors) for the disposal, use and profits thereof?

         Respondents hold her bound to account in both cases; in the first case, for the whole estate directly for the benefit of creditors, and remotely to the heirs; and in the second case, directly and only to the heirs, and for the following reasons:

         1. Upon the death of the husband, one-half the common property rests immediately in the wife, and one-half in their children; but in each case " subject to the payment of the debts of the deceased," and to the possession of the administrator for that purpose; until which payment by the administrator, and a final settlement in the Probate Court, neither the wife nor the children can know the amount and subject matter of their respective shares.

         The general rule of partnership settlements holds good here--the creditors must be paid before either partner can know how much or what is theirs, or claim their individual shares. Section 11 of Act concerning Husband and Wife, and secs. 194 and 216 of Act concerning Estates of Deceased Persons, declare it the duty of the administratrix to account for the whole of the property and profits of the estate. Beard v. Knox, 5 Cal., page 252, cited by appellant, does not impugn this view. Dower at common law was only a life estate of the wife in one-third of her husband's lands .

         In California, by our liberal laws the joint seizin and ownership of husband and wife during coverture of all the common property, becomes the absolute seizin and ownership of the wife in her sole right, upon his death, of one-half thereof, but subject to the lien and prior possession of the administratrix, to pay the joint debts and settle the estate. Beckett v. Selover, 7 Cal. R., p. 238-9; Gray v. Gray et al., April Term, 1858; Harwood v. Mary et al. , 8 Cal. 580.

         2. So far as creditors are concerned, there is no necessity for the administratrix to charge herself with the homestead and other property exempt from execution. It is exempted by law, and set apart by the Probate Court for the wife and children, expressly to free it from the claim of creditors. But here the question is between the administratrix and the minor heirs. As against them, her account rendered for final settlement of the estate should show the existing facts. She should not be allowed therein to claim as hers what belongs to them, but show what is hers in her own right, and what she holds only in trust for them, i. e., what is theirs, and thus prepare the way for a just and legal partition and distribution of all the estate.

         Section 10 of the Homestead Act says: " The homestead and other property" of the deceased husband, " exempt from forced sale, shall be set apart for the benefit of the surviving wife and his own legitimate children ." Sec. 124 of the Act concerning Estates of Deceased Persons, designates what isthe exempt property to be " set apart for the use of the widow or minor children," or for both; and not " subject to administration," so far as creditors are concerned. The homestead (not to exceed five thousand dollars in value) is included in the enumeration; and sec. 125 of the same Act shows to whom this exempt property belongs.

         In the case of Taylor v. Hargous, 4 Cal., p. 268, the Court says: " The homestead is a sort of joint tenancy, with the right of survivorship, at least, as between husband and wife." True, it is so as between them; but the very end and object of this joint tenancy in them, and of this survivorship in one of them, is the protection of the property embraced by it against all others for the benefit of the family and children, not against them or either of them .

         In Revalk v. Kraemer, 8 Cal. R., p. 72--74, the Court says: " The leading idea of the Constitution and statute is, the protection of the family ." The protection is given to the capacity, " as head of a family ." The homestead is directed to be set apart for her and the children. Could she alone sell or incumber it? If it is hers, in her own right, ofcourse she can both sell and incumber it. But if she owns only an undivided interest, and holds the whole jointly with and for others, until division of interest--meanwhile, however, controlling, managing and taking the benefits of the whole--then clearly she is responsible and accountable for the whole, proceeds and rents included; and this should all be made to appear in her final account, in order that after all the debts and expenses of the estate and of administration are paid, and the rights and claims turned into assets in possession, the heirs may all obtain their respective shares in all the remaining property, real and personal, of whatever class or kind, homestead and exempt property as well as common property.

         JUDGES: Terry, C. J., delivered the opinion of the Court. Baldwin, J., concurring.

         OPINION

          TERRY, Judge

         The questions presented are, 1st. Whether the whole of the common property is assets of the deceased husband to be administered by his personal representative?

         2d. Whether the homestead constitutes a portion of such assets?

         By our statute, the entire common property is subject to the absolute disposition and control of the husband during coverture, and is liable to execution for his debts. It is also provided, that " upon the dissolution of the community by the death of either husband or wife, one-half of the common property shall go to the survivor and the other half to the descendants of the deceased husband or wife, subject to the payment of the debts of the deceased."

         Appellant contends that by a proper construction of this section only that portion of the common property which descends to the heirs of deceased is subject to the payment of the debts of the intestate.

         This position is not tenable. During the lifetime of the parties the whole of the common property is subject to the debts of the husband, and the Legislature will not be presumed to have intended that the death of the party should deprive his creditors of recourse against one-half of the common property, unless such a construction is required by the obvious meaning of the language employed.

         We are satisfied, however, that no such intention can be legitimately gathered from the language of the section; on the contrary, it sufficiently appears that the Legislature intended that the whole common property should be subjected to the payment of the debts of deceased. Whatever ambiguity there may be in the language of that part of the section quoted in appellant's brief, is explained, and the meaning of the section made clear by the remaining portion, which he seems to have overlooked: " If there be no descendants of the deceased husband or wife, the whole shall go to the survivor subject to such payment ."

         On the second point, we are satisfied that the homestead is not assets in the hands of the administrator.

         Under the decisions of this Court, the homestead estate is a sort of joint tenancy, with the right of survivorship as between husband and wife, and cannot be destroyed except by the concurrence of both in the manner prescribed by law. Taylor v. Hargous, 4 Cal. 268.

         Upon the death of the head of the family it is made the duty of the Probate Court to set apart the homestead, for the benefit of the wife and legitimate children of the deceased. After this is done the Court has no further control over it.

         Whether the appellant succeeded to the homestead in her own right, or in trust for the children of deceased, is a question which does not arise in this proceeding, inasmuch as the jurisdiction of the Probate Court does not extend to such questions.

         The judgment, so far as it requires appellant to charge herself with the homestead, and its rents and profits, is reversed, and in other respects it is affirmed.