In re Buchanan's Estate

Burnett, J., after stating the facts, delivered the opinion of the Court—Terry, C. J., concurring. So far as the rights of the child are concerned, the decree of the Probate Court does not affect them. Whether the property acquired before the passage of the act defining the rights of husband and wife, be held the separate property of the husband, or the common property of the husband and wife, the interest of the child would be the same, under the provisions oí the act concerning .wills. Wood’s Dig., 737. See, also, Statute to regulate Descents and Distributions, Wood’s Dig., 423, 4, §§ 1,10. By an order of the Probate Court, the homestead and other property not subject to execution was set apart in 1855, for the use of the widow, in pursuance of the tenth section of the Homestead Act, and the one hundred and twenty-first section of the act regulating the settlement of the estates of deceased persons. Wood’s Dig., 403, 483. The homestead is not common property, but a sort of joint-tenancy, with the right of survivorship. Taylor v. Hargous, 4 Cal., 273; Revalk and Wife v. Kreamer et al., July, 1857. The separate property of the husband may become the homestead. Ibid. So far, then, as concerned the homestead, the widow took it by survivorship, and it should not be considered in the distribution of the common property. The only question remaining to be determined is, whether the property acquired by the testator during the marriage, but before the seventeenth of April, 1850, when the act defining the rights of husband and wife took effect, was his separate property, or belonged to the partnership. This will depend upon the state of th,o law existing at the time. [510] The law of Mexico in force here until our statute took effect, was the same, so far as relates to the merits of this question. The property belonged to the community, and upon the death of the husband, the widow took one-half. The husband had the power of disposition while living, but not by will, which could only take effect after his death. Schmidt’s Civil Law of Spain and Mexico, 12, 14, Arts. 43, 44, 51, 52; 1 Cal., 513; 5 ibid., 111, 257. The decree of the Probate Court is reversed, the cause remanded, and that Court will render a decree in conformity with this opinion.