In re Estate of McCauley

It is provided by section 1465, Code of Civil Procedure, that if no homestead has been selected, designated and recorded, the court must select, designate, set apart and cause to be recorded a homestead “in the manner provided in Article II of this chapter, out of the real estate belonging to the decedent.” By the amendments of 1873-4 to the Code of Civil Procedure (section 180), those sections of Article II, which provided the mode for the setting apart of a homestead where none had been selected, were repealed. The Code of Civil Procedure, however, contains, the following provisions:

“Seo. 187. When jurisdiction is, by this Code or by any other statute, conferred on a court or judicial officer, all the means necessary to carry it into effect are also given, and in *546 the exercise of the jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted, which may appear most conformable to the spirit of this Code.”

The 1465th section, above cited, gives the right to have a homestead set apart, and confers upon the court the power to act in the premises, and cause a homestead to be…