$300, $500,5 or $1500, under the American statutes, the property of the estate may be assigned by the court absolutely and exclusively to the widow or minor children, subject, however, to liens and encumbrances on the property at the time of the decedent's death, and generally subject to the expenses of the decedent's last illness, funeral charges and expenses of administration. But upon such property being set aside as above mentioned, administration usually terminates. Under such a statute the general rule is that a decedent can not, by provisions in his will, prevent the court from assigning all of the estate to the widow or minor children when the net value thereof does not exceed the amount fixed by the statute." §1419. Property Exempt From Execution May Be Set Apart to the Family. The statutes of the various jurisdictions often provide that the probate court may, after the return of the inventory, set aside to the surviving spouse or minor children of the decedent all the property of the estate which is exempt from execution. The exemption of property from execution is a matter of purely statutory regulation and is an exception to the general rule. No property is exempt from execution unless expressly so provided by law, and the probate court can not set apart to the surviving spouse or family of the decedent any property which the law does not so exempt and which it does not authorize the court to so set aside.R It is often provided by statute that upon the return of the inventory or at any time thereafter during the administration, the court must, of its own motion or upon petition, set apart for the use of the family of the decedent all property exempt from execution, including the homestead if one has been selected and recorded. If no homestead has previously been selected, then the court must designate and set apart a homestead for the surviving husband or wife or the minor children. If the amount so set apart be insufficient for the support of the family, then the court should make such reasonable allowance out of the estate as may be necessary for that purpose. The fact that a family allowance has been made prior to the time that any action is taken or requested as to setting apart the homestead and exempt property to the family, does not affect the right of the surviving spouse or minor children to have the homestead and exempt property so set apart." The property which the court may set aside as exempt may be, according to the statute, property which is exempt from execution under the general laws of the jurisdiction, being the property which could not have been taken for the decedent's debts had execution under a judgment therefor been issued prior to his death. Thus farming implements and articles of husbandry are exempt from execution and may be set apart for the use of 8 Estate of Brown, 123 Cal. 399, 401, 69 Am. St. Rep. 74, 55 Pac. 9 Estate of Still, 117 Cal. 509, 516, 49 Pac. 463. the widow.10 Where the proceeds of a life insurance policy, the actual premiums of which do not exceed five hundred dollars, are exempt from execution, such proceeds may be set apart to the widow and family of the decedent as exempt property.11 When so set apart such proceeds remain exempt and are not subject to execution in the widow's hands for any claims against the estate or against herself.12 This setting apart of exempt property may be done without reference to any question as to the sufficiency of the assets of the estate with which the widow or family may be supported.18 §1420. Property Exempt From Administration: When Selection and Segregation Are Required. As we have seen, the statute may provide for setting aside to the family all of the estate of a decedent when its net value does not exceed a specified amount. This exempts such property from further administration and for liability as to certain claims against the estate. 14 The statute may also provide that assets of the estate which were not, by general law, subject to execution for the debts of the decedent prior to his death, must be set apart, for the use of the family. This requires a segregation and an order of the court assigning such property to the surviving spouse or minor children of the decedent.15 Then again the statute may provide that property of the estate up to a certain value therein specified may be set apart to the surviving spouse or minor children. Such a 10 Estate of Slade, 122 Cal. 434, 55 Pac. 158. 11 Estate of Miller, 121 Cal. 353, 355, 53 Pac. 906. 12 Holmes v. Marshall, 145 Cal. 777, 779, 104 Am. St. Rep. 86, 2 Ann. Cas. 88, 69 L. R. A. 67, 79 18 Estate of Slade, 122 Cal. 434, 55 Pac. 158. 14 See § 1418. provision confers the right to a property value of a fixed amount, irrespective of the appraised value of the estate or whether the property is or is not exempt from execution. It is in effect exempting property to a certain value from administration, and in the hands of the family it is exempt from execution for claims against the decedent's estate. A selection and segregation of the property may or may not be required, according to circumstances. Where personal property up to a fixed amount is exempt from administration, the right of the widow thereto may be absolute and unqualified, but the general rule is that it does not ripen into title to the particular property until there has been a selection and segregation of the same from the balance of the estate. This rule applies to solvent estates where the value of the personalty exceeds the amount of the exemption which the law allows. But if all the personal estate of the decedent is less in value than that which is exempt, no reason exists why a selection or separation need be made. The law in such a case intervenes and attaches the right of exemption to all the personalty as if it had been selected and set apart.10 16 Where the widow is entitled to such an allowance as a matter of right, no formal application or notice of application is necessary unless the statute so provides;1 and a statute authorizing the probate court to set apart exempt property and the homestead to the widow without notice to the heirs or beneficiaries under the will is not unconstitutional as being contrary to the inhibition against taking property without due process of law.18 But if the 16 Jackson v. Wilson, 117 Ala. 432, 23 So. 521. 17 In re Dougherty's Estate, 34 Mont. 336, 86 Pac. 38. 18 Estate of Bump, 152 Cal. 274, 92 Pac. 643. statute requires notice, notice must be given except that the fault can be cured by appearance and the interposing of objections.19 §1421. What Constitutes a Homestead. Where the statute authorizing the court to set apart a probate homestead for the use of the widow and children does not define such homestead, resort must be had to the general definition thereof. It represents the dwelling house in which the family resides, with the usual and customary appurtenances, including out-buildings of every kind necessary or convenient for family use, and land used for the purposes thereof. In respect to quantity it is considered unlimited, whether in town or country, the test being the use and value. Whatever is used as a place of residence for the family, as distinguished from a place of business, constitutes a homestead. Although it is used as a place of business by the family, it does not necessarily cease to be the homestead if it be necessary or convenient for family use independent of the business. The homestead and the tests by which it is ascertained are the same whether the question arises in actions at law or in probate proceedings. There is not one homestead as against creditors and a different one when the survivor asserts his or her claim as against the heirs of the deceased.20 The purpose of the homestead law is to secure a home to those clothed with a homestead right and to 19 In re Murphy's Estate, 30 Wash. 9, 70 Pac. 109. 20 Gregg v. Bostwick, 33 Cal. 220, 91 Am. Dec. 637; Estate of Delaney, 37 Cal. 176; Keyes v. Cyrus, 100 Cal. 322, 38 Am. St. Rep. 296, 34 Pac. 722; Estate of Garrity, 108 Cal. 463, 38 Pac. 628, 41 Pac. 485; Moore v. Hoffman, 125 Cal. 90, 73 Am. St. Rep. 27, 57 Pac. 769. |