Estate of Ackerman

This controversy seems to turn upon the question whether applicant, the surviving husband of the decedent, is entitled to a “probate” homestead out of the separate estate of his deceased spouse—a statutory homestead having been selected out of the community property, during her lifetime, which survived to the husband. There may be other points, but, in view of the determination of the court, it is not necessary to consider them. The point of doubt and difficulty which has justified unusual investigation and deliberation is the one noted hereinabove; and it has been very ably presented and contested in the arguments, oral and written, of the respective counsel. The question is for the first time presented to the court in this form. It is, therefore, novel, as it is important; and it should be, as it has been, carefully examined, If resolved in favor of the opponents, it is conclusive and the other objections are not material. The view so very fully and forcibly presented by the counsel for opponents is correct, in my. opinion, to this extent at least: It is enough that here a homestead was selected out of *270 the common property during the marriage and existed at the time of the…