Kate Burdick is the surviving wife of Horace Burdick, deceased; and during his lifetime *640said Horace Burdick executed in due form, and had recorded a declaration of homestead upon the land involved herein. This land at the time said declaration was made was community property; and it remained the valid homestead of the husband and wife, who resided on it with their minor children, until the death of said Horace, which occurred May 7, 1887. On June 16, 1887, Frederick Eaton was appointed administrator of the estate of said Horace; and on October 6th, the surviving wife, Kate Burdick, filed her petition in the superior court, asking that the said homestead premises be set apart to her. On the filing of this petition, the court made an order appointing appraisers, and directing that if said homestead premises be returned in the inventory appraised at more than five thousand dollars, the appraisers should ascertain and appraise the value thereof at the time the homestead was selected, on October 7,1870. The appraisers filed an inventory, in which the present value of the premises was put at forty-five thousand dollars, and reported the,value of the same at the time of the selection of the homestead as four thousand dollars.
Thereupon the court made an order denying the petition of' the widow, and from this order she appeals to this court. It does not appear that the estate was at all in debt; and in its opinion, the court below says that “the facts of the present case doubtless are, that there are no creditors to suffer.” At all events, there are no creditors opposing the petition of appellant. Indeed, it does not appear from the record that any one opposed it.
We think the court erred in denying appellant’s petition.
A homestead, under the codes, is impressed with two main qualities: 1. Exemption from execution; and 2. The right of survivorship, by which, upon the death of husband or wife, it goes to the survivor, and not to the heirs. It is with the latter quality alone that we have *641to deal with in the case at bar,—as the contest here, if with any one, is with heirs, and not creditors.
Section 1474 of the Code of Civil Procedure provides that: “If the homestead selected by the husband and wife, or either of them, during their coverture, and recorded while both were living, was selected from the community property, .... it vests, on the death of the husband or wife, absolutely in the survivor.” And the “homestead” here mentioned is defined in the codes as follows: “The homestead consists of the dwelling-house in which the claimant resides, and the land on which the same is situated, selected as in this title provided.” Assuming, therefore, that a homestead is in every way valid,—that is, that it does not cover an unreasonably large amount of land, or is not in any way fraudulent or sham, and has been the bona fide residence of the parties, and has been executed and recorded in the manner provided by law, —then it goes, that is, the dwelling-house and land go, absolutely to the survivor, except in the cases where this right of survivorship is modified by some other provision of the codes. And there is no such provision limiting the right of ownership where the value of the homestead at the time of its selection was less than five thousand dollars. It is provided in section 1476 of the Code of Civil Procedure, that if the value at the time of the selection of the homestead “exceeded five thousand dollars,” or if it had been appraised as provided in the Civil Code, and its appraised value exceeded that sum (which was not the case here), then it may be divided or sold, and the excess over five thousand dollars distributed. But there is no such provision as to a homestead of less value than five thousand dollars at the time of its selection. In the latter case, it goes absolutely to the survivor, although at the time of the death of the husband its value may exceed five thousand dolíais. Some early decisions of this court relied *642on by respondents were made under statutory provisions materially different from those now in force.
The judgment and order of the court below are re7 versed, with instructions to set aside the homestead to petitioner as prayed for in her petition.
McKinstry, J., Sharpstein, J., and Paterson, J., concurred.
Searls, C. J., dissented.