The court refused to set apart a homestead to the petitioner as the widow of the deceased, on the ground that the property was the separate property of the deceased, and having been disposed of by his will, was not subject to the homestead-claim of his widow, and on the further ground that the widow, having qualified as the executrix, and being entitled, as one of the residuary devisees to a portion of the estate, cannot question the validity of the disposition made by the will. The estate was valued at more than $28,472. The will directed the sum of $10,000 to be paid to each of his two children, and devised the remainder of his property, after the payment of his debts, to his wife and their two children, share and share alike.
The power of testamentary disposition of property, as conferred and defined by the statute, is not paramount, but is subordinate to the authority conferred upon the Probate Court to appropriate the property for the support of the family of the testator, and for a homestead for the widow and minor child or children, as well as for the payment of the debts of the estate. A devise which clearly appeared to have been intended as in lieu of a homestsad, would present a different question from the one at bar.
*388The acceptance by the petitioner of letters testamentary, and the fact that she was, by the will, constituted one of the residuary legatees, does not tend to show that she waived her right to a homestead as prescribed by the statute.
The homestead is to be set apart in pursuance of the statute in force at the time when the order is made, and the interest therein which the widow and the surviving child will take, is to be determined by the same statute. (Estate of Boland, 43 Cal. 640.)
Order reversed and cause remanded for further proceedings.
Mr. Chief Justice Wallace did not express an opinion.