Payment of allowance.

out remainder or ultimate liability to creditors or others. Green v. Crow, Texas, 180.

The right of the widow and children where the estate is insolvent to th homestead or substituted allowance, depends upon the question whether th domicile of the deceased was within this State at the time of his death, and is not affected by the fact that the widow and children may have abandoned the State, or may intend to abandon it as soon as the allowance is assigned them. Ibid.

The testator charged the bequest of his estate with the "support and education" of a minor illegitimate child, without naming any amount therefor. It was held that in determining what should be the style and manner of education and support, the conclusion must be arrived at by reference to the will, and on a fair and just interpretation of its provisions, considering all the circumstances which surrounded the testator, and the motives which probably actuated him. Williams v. MacDougall, 39 Cal. 80.

SEC. 1467. ( 123.) Any allowance made by the court or judge, in accordance with the provisions of this article, must be paid in preference to all other charges, except funeral charges and expenses of administration; and any such allowance, whenever made, may, in the discretion of the court or judge, take effect from the death of the decedent.

Statutes of 1851, p. 463, § 123; 1861, p. 636, § 36; 1863–4, p. 370, § 11.

The widow and children of an intestate are entitled to one year's sunport out of his estate, although it is mand

Page 86.

1468. When property is set apart for the use of the family, in accordance with the provisions of this chapter, if the decedent left a widow or surviving husband, and no minor child, such property is the property of the widow or surviving husband. If the decedent left also a minor child or children, the one half of such property shall belong to the widow or surviving husband, and the remainder to the child, or in equal shares to the If there be no children, if there be more than one. widow or surviving husband, the whole belongs to the minor child or children.

See generally: Est. of Boland, 43 Cal. 642.

The wife, if surviving her husband, takes the homestead as property set apart by law from her husband's estate for her benefit and that of her children, if there be any. Gee v. Moore, 14 Cal. 472.

than $1,500

SEC. 1469. (2 126.) If, on the return of the inventory Estates less of the estate of an intestate, it appears that the value of the to go to wile whole estate does not exceed the sum of fifteen hundred those less

Page 87.

1469. If, upon the return of the inventory of the estate of an intestate, it appears that the value of the whole estate does not exceed the sum of fifteen hundred dollars, the probate court must appoint a day for the hearing, and cause notice to be given and proceedings had, in the same manner as provided in 22 1633, 1635 and 1638, of article two, of chapter ten, of title two of the code of civil procedure, relating to the settlement of accounts. If, upon the hearing, the court finds that the value of the estate does not exceed the sum of fifteen hundred dollars, the probate judge, by a decree for that purpose, must assign for the use and support of the widow and minor child or children, if there be a widow or minor child; and if no widow, then for the children, if there be any, the whole of the estate, after the payment of the expenses of his last illness, funeral charges and expenses of administration. And there must be no further proceedings in the administration, unless further estate be discovered; and when it appears, on the return of the inventory, that the value of the whole estate does not exceed the sum of three thousand dollars, it is in the discretion of the probate court to dispense with the regular proceedings, or any part thereof, prescribed in this title, "except as herein provided, and there must be had a summary administration of the estate, and an order of distribution thereof at the end of six months after the issuing of letters. The notice to creditors must be given to present their claims within four months after the first publication of such notice, and those not so presented are barred, as in other cases. [Took effect February 15, 1876.]

and child;

Rights of survivor to

N. S.

ARTICLE II.

OF THE HOMESTEAD.

SECTION 1474. Rights of survivor to homestead.

1475. Selected and recorded homestead set off to person entitled. Subsisting liens to be paid by solvent estate.

1476. Appraisers to carve out of the original exceeding five thou sand dollars in value, a homestead, and report the same. 1477. Report of the appraisers. Majority and minority, which may be confirmed.

1478. Day to be set for confirming or rejecting the report of the appraisers. Appeal.

1479. If report rejected, other appraisers appointed. If again rejected, partition suit to be brought.

1480. Instead of dividing the homestead, who may take a deed thereof at appraised value.

1481. If no homestead is selected and recorded prior to death of decedent, one may be petitioned for.

1482. Court to direct partition suit in the district court, when. Proceedings thereon.

1483. If property is common or separate, court to cause appraisement and admeasurement to be made.

1484. New appraisement, when ordered. Instead of deeding property at appraised value, public sale to be ordered, when. 1485. Costs, to whom chargeable. Persons succeeding to rights of homestead owners have all their powers and rights.

1486. Certified copies of certain orders to be recorded.

SEC. 1474. (10.) The homestead selected by the hushomestead. band and wife, or either of them, during their coverture, and recorded while both are living, on the death of the husband or wife vests absolutely in the survivor; and is not, nor is the proceeds of a sale thereof, subject to the payment of any debt or liability contracted by or existing against the husband and wife, or either of them, previous to or at the time of the death of such husband or wife, except such mortgage or lien as the homestead was subject to at the time of the death of such husband or wife.

Statutes of 1851, p. 298, § 10; 1860, p. 312, § 4; 1862, p. 519, § 2.

See section 1465, ante, and cases cited there; see, also, section 1482, post. By the amendment of the homestead act of 1860, it seems to have been the intention of the legislature, that the homestead, upon the death of either husband or wife, should descend to and vest absolutely in the survivor. But whether the act should receive this construction, or whether the homestead, upon the death of either husband or wife, descends to the survivor and the children, heirs of the deceased, and should be partitioned between