IN RE: KACHIGIAN'S ESTATE.

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District Court of Appeal, Fourth District, California.

IN RE: KACHIGIAN'S ESTATE. KACHIGIAN v. KACHIGIAN.

Civ. 2694

Decided: February 04, 1942

Harold M. Child and L. N. Barber, both of Fresno, for appellant. Harry Sarkisian, of Fresno, for respondent.

This is an appeal from an order of the probate court denying a petition of the surviving wife of the deceased to have the court select as a homestead and set apart for her use an undivided one–half interest in certain real property and to set apart to her, as exempt from execution, certain personal property.

The facts are undisputed. From February 4, 1928, to July 29, 1940, when Harry Kachigian died, he and his brother, the respondent herein, owned 40 acres of vineyard land as tenants in common, which they operated together and on which they both lived. They also owned together certain farming implements used on this property. The deceased and the appellant had no children, and the property in question was his separate property.

The main question presented is whether, under section 661 of the Probate Code, it was the duty of the court to select a homestead out of the real property thus owned by the deceased and his brother as tenants in common. The possibility of such a question arising was suggested in 11A Cal.Jur. at page 631.

Prior to the 1929 amendment to section 1238 of the Civil Code a homestead could not be selected by the owner or his or her spouse, nor a probate homestead set aside to the surviving spouse, out of land held in common or joint tenancy by one spouse and a third party. Schoonover v. Birnbaum, 148 Cal. 548, 83 P. 999; Watson v. Peyton, 10 Cal.2d 156, 73 P.2d 906. In the latter case, it was held that under the 1929 amendment to this section a husband could select a homestead, without the consent of his wife, out of property owned by them as joint tenants since his interest was an “estate” which vested in him an immediate right of possession although such right was not exclusive. It was pointed out that prior to that amendment a valid declaration of homestead upon property held by a husband and wife as joint tenants could only have been declared by the wife or by the husband and wife together. The appellant now contends that a wife's right to select a homestead is also extended by this amendment to property owned by her husband and a third party as tenants in common and that such an interest, being “property” as now defined in section 1238, must be set apart to her use as a probate homestead under section 661 of the Probate Code, which provides that a homestead must be set apart out of the separate property of the decedent when there is no community property and no property which was owned in common by the spouses. A consideration of this contention involves not only the meaning of section 1238 of the Civil Code but a construction of section 661 of the Probate Code keeping in mind its purpose and object.

Prior to 1929, section 1238 of the Civil Code provided “* * * the homestead may be selected from the community property, or the separate property of the husband, or, with the consent of the wife, from her separate property.” The 1929 amendment added the following: “Property, within the meaning of this section, includes any freehold title, interest, or estate which vests in the claimant the immediate right of possession, even though such right of possession is not exclusive.” This section applies to a homestead to be selected by one of the spouses during the lifetime of both and the 1929 amendment includes, among the property which may be thus selected, any interest in property which the selecting spouse then has which then vests in him or her an immediate right of possession. This includes, of course, a joint tenancy interest where the other spouse is the co–owner since it is then an estate in which each has a right of possession, though not exclusive. The ordinary meaning of the language used would not, however, include the selection by a wife during the lifetime of her husband of land held by a husband and a third person as tenants in common, the husband's interest being his separate property, since the wife, as claimant, would not have a present interest which vested in her the immediate right of possession. The right to select a homestead from separate property of a husband which he holds with a third person as tenants in common is not specifically given to a wife under the terms of section 1238, as amended in 1929. In speaking of that amendment the court in Re Miller, D.C., 27 F.Supp. 999, 1001, said: “This amendment obviously pertains to cotenancies, the most frequently used in California by married persons in acquiring real property for homesites being joint tenancies.” The views we have expressed are somewhat confirmed by the fact that in 1937 section 1238 was again amended by omitting the words “or, with the consent of the wife, from her separate property” and inserting in lieu thereof the words “or, subject to the provisions of section 1239, from the property held by the spouses as tenants in common or in joint tenancy or from the separate property of the wife.” While property owned as tenants in common by the spouses is thus specifically included, property owned as tenants in common by one of the spouses and a third person is not expressly authorized to be selected as a homestead. That fact not only suggests that the latter was not intended but, taken in connection with the provision that the claimant must then have a vested right of possession, indicates an intent to make the homestead selectable out of property actually belonging in some way to one of the spouses and not to him and third parties as tenants in common, and tends to negative any intention to change the long–existing rule that such a homestead could not be selected from property owned by one spouse and a third person as tenants in common. Property rights have long been acquired in reliance upon that rule and any change should be particularly and definitely declared by the legislature.

Section 661 of the Probate Code relates to a so-called probate homestead, which is the one here involved. That section was enacted in 1931, being based in part upon certain former sections of the Code of Civil Procedure. It provides, among other things, for the setting apart of a homestead for the use of the surviving spouse (1) out of the community property, (2) out of property owned in common by the spouses or if there be no such property, (3) out of the separate property of the decedent, in which event it may be set apart only for a limited period. This statute also mentions property owned in common by the spouses and does not expressly mention property held by one of the spouses and a third person as tenants in common. No intent appears, in the wording of the statute, to enlarge the field of property from which such a homestead must be selected beyond that from which one may be voluntarily selected, under section 1238 of the Civil Code, or to require the setting apart to the surviving wife of property interests which did not belong to the decedent, or in which others have an undivided interest.

This construction is in accord with the purpose of a probate homestead which is to set certain property apart for the use of a decedent's family. The object is to provide the family with a home (Estate of Schmidt, 94 Cal. 334, 29 P. 714; Estate of Adams, 128 Cal. 380, 57 P. 569, 60 P. 965), and that very object indicates an intent that this use of the property should be exclusive. It is unthinkable that it was intended that this use should be one which must be shared with a stranger who as a tenant in common has an equal right to such use. A homestead would be useless for the purpose intended unless an exclusive right to use the property as a home is given.

A further consideration is that to construe these statutes as so changing the prior law as to require a court to set apart for the use of a surviving wife property which was held as tenants in common by the decedent and a third party, would subject the third party to a loss of the use of his property or a part thereof, without compensation and without due process of law, in which event it would be unconstitutional. In many instances, this would lead to rather absurd results. For example, it would be hardly reasonable to believe that it was intended to provide that where ten persons owned a parcel as tenants in common and one died the court must set apart the entire property for the use of the family of one who had himself owned but a small part of the property, and this without regard to the rights of the co–owners. It would be equally unreasonable to suppose that it was intended to compel the setting apart of a portion of the property for the use of the family of the one, such use to be shared with the other co–owners. It is not to be assumed, in the absence of any specific indication thereof, that the legislature intended to require anything of this kind in adopting these statutes.

The order appealed from also refused to set apart to the appellant, as property exempt from execution, certain personal property of the value of about $700 and consisting of farming tools and implements situated and used upon the real property in question. In support of her contention that this part of the order is erroneous the appellant argues that under the holding in Stanton v. French, 83 Cal. 194, 23 P. 355, the exemptions from execution provided for in the Code of Civil Procedure include “the interest of a tenant in common.” Be that as it may, the setting apart to the surviving spouse of such exempt personal property is a matter specifically left to the discretion of the court. Estate of Mattingly, 19 Cal.App.2d 550, 65 P.2d 1338. No facts indicating an abuse of that discretion are here called to our attention.

For the reasons given the order is affirmed, the respondent to recover costs on appeal.

BARNARD, Presiding Justice.

MARKS and GRIFFIN, JJ., concurred.

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