each and all of them.21 A homestead, however, selected for the use of the family after the death of its head, if not restricted in value by the statute authorizing its selection, may exceed in value a homestead allowed under the general law.22 § 1422. Right of Surviving Husband or Wife, or Minor Children, to Succeed to Homestead Selected Prior to Death. Statutory provisions regarding homesteads contemplate not only the power of the probate court to select and set apart from the property of the decedent a homestead for the use of the surviving spouse or minor children, but also the right of the surviving husband or wife or minor children to succeed absolutely to a homestead selected and recorded during the joint lives of the husband and wife. Thus the statute may vest in the surviving husband or wife or minor children of a decedent a homestead duly selected and recorded during his or her lifetime. In most jurisdictions the surviving wife succeeds absolutely to such a homestead, whether it was selected from property owned in fee by herself or by her husband,23 and in some jurisdictions the surviving husband has the same right.24 21 Moore v. Hoffman, 125 Cal. 90, 73 Am. St. Rep. 27, 57 Pac. 769. 22 See § 1428. 23 Keel v. Larkin, 72 Ala. 493; Garland v. Bostick, 118 Ala. 209, 23 So. 698; Gates v. Solomon, 73 Ark. 8, 83 S. W. 348; Zachmann v. Zachmann, 201 Пl. 380, 94 Am. St. Rep. 180, 66 N. E. 256; Cross v. Benson, 68 Kan. 495, 64 L. R. A. 560, 75 Pac. 558; Davis v. Davis, 101 Va. 230, 43 S. E. 358. 24 Roberson v. Tippie, 209 Ill. 38, 101 Am. St. Rep. 217, 70 N. E. 584. In Kentucky, if there are minor children, such children have the right of occupation, jointly with the husband, during their minority. Clay's Guardian v. Wallace, 116 Ky. 599, 76 S. W. 599. In those states where the rule of separate and community property prevails, the surviving spouse is entitled to the homestead absolutely only when it was selected from the community property or, if out of the separate property of either the husband or wife, the one owning the same made or joined in the declaration of homestead.25 If selected from the separate property of either the husband or wife without his or her consent, upon the death of the owner it passes to his or her heirs, subject to the right of the court to assign it for a limited period to the survivor.26 The right of a surviving husband or wife to succeed to a homestead duly selected and recorded during their joint lives does not usually depend upon the fact of issue, the title to the property vesting in the survivor, although there be no children.27 But the statutes often provide that such a homestead is continued, not only for the benefit of the surviving spouse, but also for the benefit of minor children, if any there be;28 and it is often provided 25 Cal. Code Civ. Pro., §§ 1465, 1474; Estate of Gilmore, 81 Cal. 240, 22 Pac. 655; Sanders v. Russell, 86 Cal. 119, 21 Am. St. Rep. 26, 24 Pac. 852; Robinson V. Dougherty, 118 Cal. 299, 50 Pac. 649; Wall v. Brown, 162 Cal. 307, 122 Pac. 478; Beall v. Hollingsworth, (Tex. Civ.) 46 S. W. 881; Matter of Feas, 30 Wash, 51, 70 Pac. 270. 26 Warner v. Warner, 144 Cal. 615, 78 Pac. 24. 27 Estate of Armstrong, 80 Cal. 71, 22 Pac. 79; Cal. Code Civ. Pro., 88 1465, 1474; Brockaw v. Ogle, 170 II. 115, 48 N. E. 394; Ellis v. Davis, 90 Ky. 183, 14 S. W. 74; Maxwell v. Roach, 106 La. Ann. 123, 30 So. 251; Lyons v. Andry, 106 La. Ann. 356, 87 Am. St. Rep. 299, 55 L. R. A. 724, 31 So. 38; Holmes v. Holmes, 27 Okla. 140, 30 L. R. A. (N. S.) 920, 111 Pac. 220; Yoe v. Hanvey, 25 S. C. 94; Brown v. Reed, 20 Tex. Civ. App. 74, 48 S. W. 537. Contra: Wharton v. Leggett, 80 N. C. 169. 28 Gates v. Solomon, 73 Ark. 8, 83 S. W. 348; Estate of Armstrong, 80 Cal. 71, 73, 22 Pac. 79; Douglas v. Marshall, 112 Ga. 423, 37 S. E. 722; Roberson v. Tippie, that minor children of the decedent take the sole benefit of such a homestead if there is no surviving spouse.29 The general rule is that a homestead which passes to the surviving spouse or minor children of the decedent is not subject to the ordinary debts of the decedent or general claims against his estate;80 but the property is usually liable for specific liens and encumbrances or, in other words, it is liable in the hands of the surviving spouse or minor children for the same obligations for which it was liable in the hands of the decedent prior to his death.31 209 Ill. 38, 101 Am. St. Rep. 217, The right to the homestead vests in the surviving spouse and minor children only when the estate is insolvent. - Zoellner v. Zoellner, 53 Mich. 620, 19 N. W. 556. In Virginia it is held that the right of a widow to take the homestead, as against the heirs of her deceased husband, depends upon the fact of there being debts against the decedent, but in such a case the heirs can not defeat the widow's right by paying the debts. Davis v. Davis, 101 Va. 230, 43 S. E. 358. To the same effect, see Ex parte Worley, 49 S. C. 41, 26 S. E. 949. 29 Baker v. Keith, 72 Ala. 121; Sparkman v. Roberts, 61 Ark. 26, 31 S. W. 742; Bonnell v. Smith, 53 Ill. 375; Turner v. Turner, 89 Ky. 583, 13 S. W. 6; Dunn v. Stevens, 62 Minn. 380, 64 N. W. 924, 65 N. W. 346; Peeler v. Peeler, 68 Miss. 141, 8 So. 392; Canole v. Hurt, 78 Mo. 649; Macrae v. Macrae, (Tenn. Ch.) 57 S. W. 423. In North Carolina the minor children take the homestead to the exclusion of the widow, but subject to her prior right of dower.-In re Seabolt, 113 Fed. 766. 30 Miller v. Davis, 69 Ark. 1, 56 Am. St. Rep. 167, 64 S. W. 97, 68 S. W. 23; Matter of Gilmore, 81 Cal. 240, 22 Pac. 655; Keyes v. Cyrus, 100 Cal. 322, 38 Am. St. Rep. 296, 34 Pac. 722; Pile v. Miller's Admr., 23 Ky. L. Rep. 893, 64 S. W. 523; Burroughs v. Howell County, 180 Mo. 642, 79 S. W. 682; Childers v. Henderson, 76 Tex. 664, 13 S. W. 481; White's Admr. v. White, 63 Vt. 577, 22 Atl. 602. 31 Browne v. Sweet, 127 Cal. 332, 59 Pac. 774; Phillips V. §1423. The Same Subject: Title Vests Without Order of the Probate Court. A homestead existing at the time of the death of the husband or wife and which thereupon vests absolutely in the survivor, requires no act of selection. Being the property of the survivor, in some jurisdictions no formal order of the probate court assigning the homestead to the survivor is necessary32 unless the homestead be of greater extent or value than is sanctioned by law.33 The statute, however, may direct that the court set aside such a homestead to the surviving spouse, the direction being mandatory upon petition by the survivor and a proper showing, but such proceedings have no effect upon the actual title of the survivor.34 The effect of the order of the probate court setting apart the homestead to the surviving spouse is merely a withdrawal of the property from administration.35 James, 115 Ga. 425, 41 S. E. 663; 32 Faircloth v. Carroll, 137 Ala. 243, 34 So. 182; Woodward v. Lincoln, 9 Allen (91 Mass.) 239; Houf v. Brown, 171 Mo. 207, 71 S. W. 125; Carver v. Maxwell, 110 Tenn. 75, 71 S. W. 752; Powell v. Naylor, 32 Tex. Civ. App. 340, 74 S. W. 338. 33 Ball v. Ball, 165 Mo. 312, 65 S. W. 552. 34 Cal. Code Civ. Pro., §§ 1465, 1474; Estate of Ackerman, 80 Cal. 208, 13 Am. St. Rep. 116, 22 Pac. 141; Matter of Fath, 132 Cal. 609, 64 Pac. 995; Otto v. Long, 144 Cal. 144, 77 Pac. 885. 85 Saddlemire v. Stockton Sav. & L. Soc., 144 Cal. 650, 654, 655, 79 Pac. 381. In the regular course of procedure a homestead should be set apart at once upon the coming in of the inventory showing its existence, but, if not then done, it may be done at any subsequent time during administration. When thus set apart, it is property with. drawn from administration and the administrator has no further concern in it.-Estate of Still, 117 Cal. 509, 49 Pac. 463. § 1424. Effect of Testamentary Disposition by Decedent on Right of Family to Homestead. Where the statute provides that a homestead duly selected and recorded during the joint lives of a husband and wife vests upon the death of either in the survivor or the minor children, the general rule is that the right to succeed to the homestead can not be defeated by the will of the decedent disposing of the property to others.36 This rule, however, is affected by the further rule that a husband or wife may make a testamentary disposition of property in which the other has an interest if the one having such interest consent thereto.37 A testator may by his will devise the homestead to his widow, and creditors can not complain.88 The testator may bequeath or devise other property to his widow in lieu of her homestead right, in which case the widow is put to her election as in other cases where a testator devises property in which the statute gives his widow an interest. The acceptance by the widow of the provisions of the will bars. 36 In re Marquette, 103 Fed. 777; Matter of Firth, 145 Cal. 236, 78 Pac. 643; Henson v. Moore, 104 Ill. 403; Stewart v. Brand, 23 Iowa 477; Pratt v. Pratt, 161 Mass. 276, 37 N. E. 435; Tracy v. Tracy, 79 Minn. 267; Kleinmann v. Gieselmann, 114 Mo. 437, 35 Am. St. Rep. 761, 21 S. W. 796; Reed v. Talley, 13 Tex. Civ. App. 286, 35 S. W. 805; Meech v. Meech's Estate, 37 Vt. 414. 87 Radl v. Radl, 72 Minn. 81. See §§ 253, 254, 623, 624, as to consent to the will. As to neither husband nor wife being able to deprive the other of his or her statutory rights, see §§ 251, 252. 38 Roark v. Bach, 116 Ky. 457, 76 S. W. 340; Schonbachler v. Schonbachler, 22 Ky. L. 314, 57 S. W. 232; Kuener v. Prohl, 119 Wis. 487, 97 N. W. 201. Compare: McAndrew v. Hollingsworth, 72 Ark. 446, 81 S. W. 610. |