Estate of Moskowitz

Petitioner Magdolna G. Moskowitz married Ben Z. Moskowitz (decedent) about one year prior to his death. During the marriage, they lived in an apartment in a 4-unit apartment building which was the separate property of Mr. Moskowitz, and the other apartments were rented. No homestead had been set apart in said property, or in any part thereof, at the time of his death. Mr. Moskowitz was survived by petitioner and two adult sons and an adult daughter. The son, respondent Al J. Morse herein, was appointed executor of Mr. Moskowitz’s will. Petitioner instituted the present proceeding for an order setting apart the entire apartment building as a probate homestead (Prob. Code, § 661 et seq.). The court ordered that an undivided one-fourth interest in the building be set apart and vest in petitioner for a period of eight years, or until petitioner’s death, whichever first occurs. Petitioner appeals from the order. (Prob. Code, § 1240.)

Appellant contends that the court was required to set apart the entire apartment building as a probate homestead, and could not set apart an undivided fractional interest therein without the exclusive right to possession of the entire building or of a…