In re Estate of Orr

By the Court, Sanderson, C. J. The order of the Court refusing to direct a sale of the homestead for the purpose of satisfying the alleged mortgage claim of C. A. Brown, is not erroneous. Section four of the Homestead Act (Statutes 1862, p. 519,) provides that “the homestead property shall, upon the death of the husband or wife, vest absolutely in the survivor and be held by the survivor as fully and amply as the same was held by them, or either of them, immediately preceding the death of the deceased, and shall not be subject to the payment of any debt or liability contracted by or existing against the said husband and wife, or either of them, previous to or at the time of the death of such husband or wife, except such debt or liability as the homestead was subject to at the time of the death of such husband or wife.” Thus the homestead can be sold, after the death of such husband or wife, under legal process, only in such cases as it could have been sold during the lifetime of the deceased. Those cases are specified in the second section of the same Act, and are confined to mechanic’s, laborer’s, vendor’s and mortgage liens lawfully obtained. In harmony with these provisions of the Homestead Act, the one hundred and twenty-first section of the Probate Act directs the Probate Court to set apart from the assets of the estate the homestead [104] property for the use of the family of deceased; and the one hundred and twenty-fifth section provides that such homestead property when so set apart shall be the property of the widow if there is no minor child, or, if there is a minor child, one half shall belong to the widow and the other half shall belong to such minor child, or, if there be more than one minor child, then to such minor children in equal shares. When-the homestead has thus been set apart it ceases to be a part of the assets of the estate, and neither the Court nor the administrator has any further power over it, and it has become for all future purposes of the administration as if it had never existed. It is true that the widow, or widow and minor child or children, as the case may be, take it subject to all valid liens existing against it at the time of the death of the husband, but free from all other claims. If, therefore, at the death of Orr, Brown held a. valid mortgage against the homestead, the widow took the homestead subject to it, and Brown can now, as before the death of the husband, subject it to the satisfaction of the mortgage debt, but his remedy is in the District Court. (Fallon v. Butler, 21 Cal. 24; Willis v. Farley, 24 Cal. 490.) Order affirmed.