Rosenaur v. Rosenaur

The question here is whether the court erred in refusing to award to a minor child a probate homestead from his father’s estate in these circumstances: The child is the natural son of decedent and a former wife, having resided with and been in the custody of his mother at all times since her divorce from his father; decedent had remarried and left surviving him a widow and two minor children of the second marriage with whom he resided at the time of his decease; decedent left at least one parcel of tenantable real property-consisting of a building containing six apartment units and commercial store rooms.

This appeal is from the order denying the petition of the minor’s guardian for the setting aside of a probate homestead to him during his minority.

The authority of the court to set apart a homestead from property of a decedent is found in section 661 of the Probate Code, the applicable part of which reads: “If none has been selected, designated, and recorded . . . the court, in the manner hereinafter provided, must select, designate and set apart and cause to be recorded a homestead for the use of the surviving spouse and the minor children, or, if there be no surviving…