This is a controversy involving the right of appellant as the widow of William Forest Fulton, deceased, to have set aside to her a probate homestead and certain exempt property.

A stipulation as to the facts reveals that William Forest Fulton and Louisa J. Fulton were married and lived together for several years in the county of Stanislaus. In 1928 they separated and in 1931 William Forest Fulton brought an action for divorce on the ground of desertion. Louisa J. Fulton appeared and filed a cross-complaint asking for an adjustment of certain property rights. After a trial upon the issues thus presented, an interlocutory decree of divorce was entered in June, 1932. From this interlocutory decree Louisa J. Fulton appealed to the Supreme Court. The cause was argued and submitted but before determination William Forest Fulton died in December, 1933. He left a will which was admitted to probate, disposing of his property and nominating S. G-. Fulton executor.

In May, 1934, the Supreme Court rendered its decision ( 220 Cal. 726 [ 32 Pac. (2d) 634 ]) affirming the judgment of the trial court, and in due time, upon motion of the executor, a year having elapsed since the entry of the interlocutory decree, the final decree was entered.

Prior to the decision by the Supreme Court the widow petitioned the probate court for a homestead and the setting aside to her of the exempt personal property. An opposition thereto was filed by the executor, and after a hearing the petition was denied and this appeal is taken therefrom.

Prior to the petition for an assignment of the exempt personal property and a probate homestead, the widow had applied for and been granted a family allowance. Upon an appeal from that order this court (8 Cal. App. (2d) 423, 48 Pac. (2d) 120 ) affirmed that order, and appellant now relies upon that case as decisive of the issues here presented.

An examination of the record and opinion in that case disclosed, however, that that case is not applicable here nor decisive of the issues now before us. That case was presented upon a bill of exceptions, which did not show that Louisa J. Fulton had deserted her husband nor did it show the entry of any final decree nor any appeal pending from the interlocutory decree. It did show that an interlocutory decree had been entered,, but in the absence of any record this court could not take judicial notice of any appeal therefrom, and therefore the wife, pending administration of the estate of her husband, was entitled, under section 1464 of the Code of Civil Procedure, to support pending the administration regardless of cohabitation, the court being bound, in the absence of evidence to the contrary, to presume in favor of the family relationship.

Upon the conclusion of the hearing of the application for probate homestead and the setting aside of exempt personal property, Honorable B. C. Hawkins, a Judge pro tempore of the Superior Court of Stanislaus County, filed a written opinion which well expresses our views in regard to the issues presented, and we adopt the same in part as follows :

For the foregoing reasons the order is affirmed.

Plummer, J., and Thompson, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on August 5, 1936, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 31, 1936.