In the Matter of the Estate of CHARLES H. HUELSMAN, Deceased. L. B. MOHR et al., Executors, Appellants, v. CATHERINE HUELSMAN, Respondent, 127 Cal. 275

HENSHAW, J. This is an appeal from an order directing the executors of the above-entitled estate to pay off and discharge a mortgage lien on the probate homestead which had been set apart to the widow of the deceased. The deceased left a will in which he devised to his widow a one-half interest in a farm in Sacramento county, and also a one-half interest in the personal property on the farm. The remainder of his estate, with a trifling exception, was left to a daughter and son, children of a former wife.

At the time the will was made, the farm, which was appraised at the value of two thousand three hundred dollars, was unencumbered, but afterward it was mortgaged by the deceased to secure the payment of a thousand dollars. The entire estate was the separate property of the husband. Before the time for approving claims against the estate had expired the court, upon application of the widow, set aside the whole farm as a homestead. The order so setting aside the homestead did not limit it to a life estate in the widow, hut set it aside to her absolutely.

This, of course, was erroneous, but the time to appeal from the order having expired, and no appeal having been taken, and the order, though erroneous, not being void, title in fee under the order vested in the widow. (In re Moore, 96 Cal. 522; Fealey v. Fealey, 104 Cal. 354; 43 Am. St. Rep. 111; Hanley v.

Hanley, 114 Cal. 690.) Despite the fact that the farm had been specifically devised, one-half to the widow, the other half to the two children, it was competent for the probate court to set it aside ns a homestead, for the right of a testator to devise is subordinate to the power in the probate court to sequester and set apart the property for the shelter, care, and support of the family. (Sulzberger v.

Sulzberger, 50 Cal. 385; In re Davis, 69 Cal. 458; Estate of Lahiff, 86 Cal. 151.) [Notwithstanding, then, the specific devise of one-half of the farm to the widow, her title to all of it is deraigned from the homestead order. The owner of the debt secured by the mortgage upon the farm never ¡presented his claim against the estate. His recourse was therefore limited to the mortgaged property. (Code Civ. Proc., sec. 1500; McGahey v. Forrest, 109 Cal. 63.) The question thus presented is that of the power of the court to order the executors to discharge an encumbrance upon the probate homestead.

Since the widow’s title comes from the homestead order, and not from the devise, she is not in position to take advantage of the provisions of seqtions 1544 and 1563 of the Code of Civil Procedure relative to the exemption of specific devises from the payment of the debts of an estate. We have looked in vain to find any law authorizing the court to discharge liens upon suph a homestead. Where a homestead has been selected and recorded prior to the death of one of the spouses,

section 1475 of the Code of Civil Procedure makes provision for the extinguishment of liens and encumbrances upon it, hut

section 1475 has to do exclusively with homesteads declared during the lifetime of the spouses. The law has not seen fit to make the same provision as to probate homesteads. Therefore, however beneficent may he the power which the court exercised in making the order in question, we are constrained to hold that it was unauthorized. The order appealed from is reversed. Temple, J., Van Dyke, J., and Harrison, J., concurred.