In a petition for rehearing the respondent refers to the statement in the opinion heretofore filed, in discussing the possibility of obtaining letters of administration upon the estate of the deceased wife of the appellant, that, "the homestead was her property and was a part of her estate at the time of her death," and claims that this statement is contrary to previous decisions of this court, referring to Matter ofTracey, 136 Cal. 385 [69 P. 20], Estate of Shirey, 167 Cal. 193 [138 P. 994], Saddlemire v. Stockton etc. Soc., 144 Cal. 653 [79 P. 381], Estate of Beer, 178 Cal. 57 [171 P. 1062], and Estate of Simonton, 183 Cal. 54 [190 P. 442]. These cases declare that a homestead which was declared upon community property or upon separate property of the spouse making or joining *Page 385 in the declaration, upon the death of either spouse vests immediately in the survivor and constitutes no part of the property of the deceased spouse, although it was his or her property at the immediate time of his or her death. The decision in the Estate of Beer is to the effect that a brother of a deceased wife is not entitled to administration of his estate, in preference to the public administrator, where the only property in which he claimed an interest was a homestead declared upon separate property of the wife in the lifetime of herself and the decedent, the wife having died before the husband, it being stated that the homestead thereupon immediately vested in the surviving husband and that the relatives of the wife took no interest therein by descent. The above-quoted passage of our opinion should perhaps have been followed by a further statement in explanation, but when considered in connection with the subject then under discussion it is not contrary to the previous decisions of this court. None of those decisions hold that where a homestead declared on separate property is subject to a vendor's lien, there can be no administration upon the estate for the purpose of disposing of such homestead and enforcing the vendor's lien thereon. It is no part of the assets of the estate for the payment of ordinary debts and it immediately vests in the surviving spouse upon the death of the spouse in whom the title was previously vested. The question whether administration could be had because of the necessity of providing for the enforcement of the subsisting liens on the homestead, such as the vendor's liens or mechanics' liens provided for in section 1241 of the Civil Code, was not involved in any of those cases. Where administration is necessary for that purpose it must be held that administration can be had although there are no general assets of the estate subject to the payment of ordinary debts.
The petition for rehearing is denied.
Shaw, C. J., Lawlor, J., Wilbur, J., Sloane, J., Lennon, J., and Shurtleff, J., concurred. *Page 386