Schmelz v. Schmelz

This appeal is from an order setting apart a homestead to the surviving widow.

The decedent died September 30, 1962, leaving surviving his widow. Included in the property owned by the decedent were two pieces of real property. One was a multiple dwelling, consisting of four rental units in Huntington Park, California, which was held in joint tenancy with the surviving spouse, the income from which was $1,600 per year. The other real property owned by decedent was located in South Gate, California. This was the separate property of the decedent and consisted of eight units on one lot (two houses in the front and a six-unit apartment building in the rear). Decedent and his spouse lived in an apartment on the South Gate property. It is the whole of this property which the surviving spouse successfully sought to have impressed with a probate homestead, no homestead having been selected, designated and recorded during the lifetime of decedent.

Complying with the dictate of section 661 of the Probate Code, the court granted the petition for homestead and, determining that the property was incapable of physical partition, impressed the whole property with the homestead burden.

Since…