with reference to a declaration of homestead by a husband or wife during their joint lives and for their joint benefit. The statutes authorizing the probate court to set apart a homestead for the surviving spouse or minor children, no homestead having been declared prior to the death of the decedent, often fail to point out the manner in which such homestead shall be selected. The procedure, in the absence of a specific direction in the statute, is the same as that by which the dower of a widow is selected and set apart.58 And in the absence of statutory direction, the court may adopt any suitable method of procedure conformable with the spirit of the statutes dealing with homesteads.57 In proceedings to set apart a probate homestead to the widow and children, title may be examined, but can not be tried. The question of title can only be determined in some appropriate action brought for that purpose. The validity of adverse title claimed by contestants in the property sought to be set apart as a homestead is not a proper question to be litigated in such a proceeding.58

Where the statute provides for an absolute homestead exemption in real property for the benefit of the widow and minor children, no selection is necessary where the area and value of the real property of the estate does not exceed the limit or value allowed by law, and is in one piece and not a part or parcel of a larger tract.59 The

56 Woodward v. Lincoln, 9 Allen (91 Mass.) 239, 241; Norris v. Moulton, 34 N. H. 392; Rhea v. Meredith, 6 Lea (74 Tenn.) 605, 608.

57 Phelan v. Smith, 100 Cal. 158, 169, 34 Pac. 667.

58 Estate of Groomes, 94 Cal. 69,

29 Pac. 487; Dickey v. Gibson, 121 Cal. 276, 53 Pac. 704.

The probate court will not pass upon the validity of mortgages upon the homestead property.— Chalmers v. Stockton B. & L. Soc., 64 Cal. 77, 28 Pac. 59.

59 Pollak v. McNeil, 100 Ala.

title thereto does not vest in the personal representative of the estate.60

§1428. The Same Subject: Value of Probate Homestead.

Where the statute directing the probate court to set aside a homestead to the surviving spouse or minor children of the decedent, no homestead having been selected during the decedent's life, and the statute does not limit the value of the homestead to a fixed amount, the court may designate such property as it deems just and proper, whatever may be its value, but its decision should be in accord with the circumstances and condition of the estate.61 The court must take into consideration the rights of creditors and, if the general homestead law limits the value of a homestead to a specified amount which a debtor may claim as against the demands of his creditors, the exercise of judicial discretion should limit the probate homestead to such amount if the allotment of a greater value would defeat the just claims of creditors. But while the rights of creditors can not be disregarded, they are subordinate to the right of the family to a home and dependent upon the possibility of segregating a limited homestead from the balance of the estate.62 If in order to set apart the homestead it is necessary to take the entire estate of the decedent, the rights of creditors must

203, 13 So. 937; Jackson v. Wilson, 117 Ala. 432, 23 So. 521.

60 Jackson v. Wilson, 117 Ala. 432, 23 So. 521.

61 Estate of Schmidt, 94 Cal. 334, 29 Pac. 714; Estate of Adams, 128 Cal. 380, 57 Pac. 569; Estate of Levy, 141 Cal. 646, 99 Am. St. Rep. 92, 75 Pac. 301.

62 Estate of Adams, 128 Cal. 380, 57 Pac. 569, 60 Pac. 965.

The insolvency of the estate does not prevent the court from setting aside a homestead to the widow and minor children where the statute contains no limitation to the contrary.-Estate of Adams, 128 Cal. 380, 57 Pac. 569, 60 Pac. 965.

yield. Heirs, devisees and legatees occupy no more advantageous position than do creditors."4

The situation of the property of the deceased may be such that a homestead of limited value can not be divided from the remainder of the estate. Although creditors have rights which should be considered, the family is first entitled to a home if there be property which is capable of being set aside as such. Where the only premises suitable for homestead purposes are indivisible and no homestead can be given to the family unless the whole of such premises be set aside, though the value of the property be far in excess of the amount prescribed under the general homestead law and be equal in value to nearly one-half of the estate, such facts do not prohibit the probate court from setting the same aside as a homestead in the absence of a statutory limitation.65 The value of the homestead and the fact that the property is indivisible should be set forth in the order of the probate court.66 But in some jurisdictions the foregoing rule does not prevail since it would have the effect of enlarging the homestead rights of widow and children by reason of the death of the husband.67

63 Keyes v. Cyrus, 100 Cal. 322, 38 Am. St. Rep. 296, 34 Pac. 722.

64 Sulzberger v. Sulzberger, 50 Cal. 385; Estate of Davis, 69 Cal. 458, 10 Pac. 671; Estate of Lahiff, 86 Cal. 151, 24 Pac. 850.

65 Estate of Levy, 141 Cal. 646, 99 Am. St. Rep. 92, 75 Pac. 301.

The surviving widow or minor children of a decedent are entitled to a homestead to the ex

tent allowed by the statute, in property owned and occupied by the decedent at the time of his death as a family home, although the homestead exceeds in value the statutory limit of homestead exemption. Calmer v. Calmer, 15 N. D. 120, 106 N. W. 684.

66 Calmer v. Calmer, 15 N. D. 120, 106 N. W. 684.

67 Lloyd v. Lloyd, 34 Wash. 84, 74 Pac. 1061.

§1429. Allowance for Support of Family Pending Settlement of Estate: Insolvency of Estate no Bar.

The statutes of most jurisdictions provide that the widow and minor children of a decedent, until after administration is granted and an inventory of the estate is returned, are entitled to remain in the possession of the dwelling house of the decedent and to receive from the probate court a suitable allowance for maintenance and support. The right of the widow and minor children to a family allowance is statutory, but is strongly favored. The right to this allowance exists even before letters of administration are granted. After letters have been issued and if the estate is solvent, the family allowance should be continued during the settlement of the estate.68 But the right to the allowance does not depend upon the solvency or insolvency of the estate, although if the estate is insolvent the allowance is often limited to the period of one year. Even in such a case the court has no discretion to restrict the allowance to a shorter period unless administration is concluded within the year.69 The insolvency of the estate does not bar the payment of the allowance to the widow or family," the general rule being that the right does not depend either upon the decedent's testacy or intestacy, solvency or insolvency."1

es Estate of Welch, 106 Cal. 427, 432, 39 Pac. 805.

69 Estate of Treat, 162 Cal. 250, 121 Pac. 1003; Cal. Code Civ. Pro., § 1466.

70 Tetzloff v. May, 172 Iowa 617, 154 N. W. 905.

71 Graves v. Graves, 10 B. Mon. (49 Ky.) 31; Turner v. Turner, 30

Miss. 428; Glenn v. Gunn, 88 Mo. App. 442; In re Leavitt's Estate, 85 Neb. 521, 124 N. W. 114.

As to the rule in England and in Canada, see Re Twigg's Estate, Twigg v. Black (1892), 1 Ch. 579; In re Harrison, 2 Ont. Law Rep. 217.

§ 1430. Nature of the Family Allowance.

Where the decedent leaves a widow but no minor children, property set apart by the probate court for the use of the widow becomes her absolute property and forms no part of the assets of the estate for distribution.72 It is no part of her dower right, and title passes absolutely and not merely for life." The provision of the statute providing for an allowance to the widow is in addition to and not in lieu of her right of dower," and likewise a provision in favor of the husband is not in lieu of his right by curtesy.75

If land be set apart for the support of the widow, the power to sell the same and apply the proceeds for such support is necessarily implied although there be no express provision of law to that effect. If the widow, with the approval of the probate court, sells land so set apart and uses the proceeds thereof for the support of herself and the heirs at law, the latter can not recover the land merely because no express power is given to the court of probate to order the sale or because the approval of the sale was irregular.76 And the power of sale necessarily implies the right to mortgage." The title to real estate so set apart for the support of the widow vests in her,

72 Fore v. Fore's Estate, 2 N. D. 260, 50 N. W. 712.

A creditor of the widow can not attach assets of the estate in the hands of the administrator which have been allowed for the widow's support.-Barnum v. Boughton, 55 Conn. 117, 10 Atl. 514.

73 Martin v. Jones, 155 Mo. App. 490, 134 S. W. 1097.

74 Jameson v. Jameson, 117 Ark.

142, 173 S. W. 851; Houghteling v. Stockbridge, 136 Mich. 544, 99 N. W. 759; In re Leavitt's Estate, 85 Neb. 521, 124 N. W. 114.

75 Nelson v. Troll, 173 Mo. App. 51, 156 S. W. 16.

Compare: Hamilton's Admr. v. Riney, 140 Ky. 476, 131 S. W. 287.

76 Tabb v. Collier, 68 Ga. 641. 77 Allen v. Lindsey, 113 Ga. 521, 38 S. E. 975.