Estate of Bain

This is an appeal from an order setting apart a probate homestead. During the lifetime of Charles W. Bain he executed a will. Anna Bain, his wife, at- the same time executed an agreement witnessed by the same witnesses as the will and termed “Consent of Wife”. By this consent she accepted and acquiesced in the provisions of the will and waived all claim to share in the community property and “any and all claims”. After the death of the testator his will, by the terms of which he devised to his widow a life estate in the property in question, was probated.

The legal propositions which are determinative of this appeal have been passed upon by our appellate courts. The right of inheritance is subject to the power of the probate court to carve out a homestead for a limited period not to exceed a life estate (Estate of Huelsman, 127 Cal. 275 [ 59 Pac. 776 ] ; Estate of Gray, 159 Cal. 159 [ 112 Pac. 890 ]). This also is true of the court’s right to make an order for family allowance, and the right to testamentary disposition as well as of inheritance is subject to both homestead and family allowance rights (Estate of Whitney, 171 Cal. 750 [ 154 Pac. 855 ]).

The last-named authority…