McGinnis v. Neff

McFARLAND, J. This is an appeal by heirs from a probate order setting apart the whole of the estate of'Amos L. Neff, deceased, to his widow, there being no minor children. The total value of the estate was only one thousand and eighty dollars; and the whole of it was set apart to the widow, pursuant to section 1469 of the Code of Civil Procedure, which provides that if the value of the estate does not exceed fifteen hundred dollars the court shall assign it to the widow, in whom the “title” shall “rest absolutely” where there are no minor children, subject to expenses of administration, etc:, and' also" subject to whatever “mortgages, liens, or encumbrances there are upon the property,” and that “there must be no further proceedings in the administration unless further estate be discovered.” The contention of appellants is founded on the facts that part of the estate was a lot of land of the value of five hundred and fifty dollars; that this land *72 was the separate property of the deceased, and that before his death the widow had filed a homestead declaration thereon, he not joining therein. The contention is, that these facts take the case out of the operation of said section 1469, for the reason that -under sections 1465, 1468, and 1474 of the Code of Civil Procedure, and section 1265 of the Civil Code, where a homestead has been filed by one spouse on the separate property of the other, upon the death of the latter the property covered by the homestead can be assigned to the survivor only for a limited period. This contention is not maintainable. In the case at bar, the court, in making the order appealed from, was not setting aside a homestead, nor dealing with the subject of homesteads. It was a proceeding under section 1469, which specifically deals with the special subject of estates less in value than fifteen hundred dollars, and provides that the whole of such an estate shall go to the widow, subject to existing liens and encumbrances. The claim to the land in question which these appellants set up is not a claim to a “lien or encumbrances”; it is a claim of ownership or title. Taking all the code sections together, and considering the regard which the law has for the interests of the family, it was clearly the intention of the legislature that small estates under fifteen hundred dollars shall go -immediately to the family without further administration. The ease at bar is within said section 1469, and governed solely by its provisions, and the court below rightly- so held. The order appealed from is affirmed. Lorigan, J., Henshaw, J., and Beatty, C. J., concurred.