Homestead—Setting Apabt.by Probate Court—Sep abate Property of Petitioner.—The superior court sitting in probate has no jurisdiction to set apart property as a homestead where the petition alleges that the property involved is the separate property of the petitioner.

Id.—Jurisdiction op Probate Court—Determination op Title.—In a proceeding to set apart a probate homestead the court deals only with the property of the estate, and it has no jurisdiction to determine the title to the property, or the validity of any claim of title adverse to that of the estate. Such proceeding cannot be employed to obtain a decree of the probate court adjudicating the claim of the petitioner that the property was his separate property and consequently not a part of the estate of the deceased, a matter not within the jurisdiction of the court in probate.

Id.—Community Property—Death op Wipe—Setting Apart as Homestead.—Community property is not, on the death of the wife, a part of her estate, and in the administration of her estate, the probate court has no jurisdiction to set apart such property absolutely to the surviving husband as a homestead.

Id.—Surviving Husband—Nature of Eights in Community Property —Power op Probate Court.—Upon the death of the wife the surviving husband does not take the community property by succession, but he holds it all from the moment of her death as though acquired by himself. Under section 1401 of the Civil Code, the surviving husband is, without administration, the absolute owner of all the community property from the moment of the death of his wife. It never belongs to the estate of the deceased wife. With reference to the power of the court in probate to deal with it in the matter of the wife’s estate, it is in the same situation as the separate property of the surviving husband, entirely beyond the jurisdiction of such court.

Id.—Homestead—Setting Apart to Husband from Community Property.—The provision of section 1465 of the Code of Civil Procedure, as to the setting apart of a homestead from the common property, can be read only as meaning such common property as is a part of the estate under administration and consequently within the jurisdiction of the court in probate, as in ease of the estate of a deceased husband leaving community property. It does not authorize the probate court to set aside community property as a homestead to the surviving husband.

Id.—Separate Property—Effect of Setting Apart as Homestead to Husband.-—If property set aside in probate to a surviving husband was in fact separate property of the wife, that fact can be shown in any collateral proceeding, with the result that the order of the court in probate could have accomplished no other result than to withdraw the property from administration in the matter of the estate of the wife and to that extent relieve the executor from the necessity of accounting therefor.

Id.—Community Property—Effect of Setting Apart as Homestead to Husband.—The probate court is without power to affect the absolute title to community property vested in the husband at the moment of the wife’s death, and an order setting the property apart as a homestead is not essential to the title of the husband and has no other effect than to withdraw it from further consideration by such court, and relieve the executor or administrator from further obligaj tion in regard thereto.

Id.—Claim Adverse to Estate—Assertion That Property is Community.—A surviving husband claiming that certain property was community property up to the time of the death of his wife is thereby ■ asserting a claim of title adverse to that of the estate of his wife, which cannot be determined by the court in probate.

Id.—Homestead—Setting Apart to Husband—Jurisdiction of Court. The superior court sitting in probate has no power under section 1465 of the Code of Civil Procedure, in an administration upon the estate of a wife, to select and set apart a homestead to the surviving husband out of what was community property of the spouses, where no homestead was selected during their lives, or to select and set apart such a homestead from any property other than the separate property of the wife.

Id.-—Husband and Wipe—Conveyance prom Him to Her Amounting to Gift.—The execution and delivery of a grant, bargain, and sale deed by a husband to his wife of bis separate property for an expressed consideration of ten dollars, constitutes a gift to the wife, where no consideration is in fact paid, although the property thereafter continued to be occupied as the family residence and the husband paid the taxes and expenses of repairs, and hence the property becomes her separate property.

Id.—Conveyance Between Husband and Wipe—Presumption as to Community Property.—The presumption of section 164 of the Civil Code, as it existed prior to 1889, that property conveyed to either husband or wife after their marriage, other than as a gift, was community property, is inapplicable to conveyances between themselves.