Summary
Appeal from the Probate Court of Calaveras County.
This was an application to the Probate Court to have a homestead set apart out of the estate of Robert Eproson, deceased, for the benefit of the petitioner, wife of decedent, and a minor child, the only surviving issue of the petitioner and decedent. No homestead had been selected and recorded by either the husband or the wife during the lifetime of the decedent. The decedent at the time of his death in June, 1876, was possessed of one hundred and sixty acres of land, which, with the improvements thereon, were appraised as of "the value of one thousand five hundred dollars, and also of personal property appraised at one thousand two hundred and ninety-seven dollars. All the estate was his separate property. The indebtedness was two thousand one hundred and seventy dollars. In January, 1876, the petitioner and the decedent entered into the following agreement:
“ This Agreement, made this 21st day of January, a. d. 1876, between Robert Eproson and Mary F. Eproson, of the County of Calaveras, State of California, witnesseth:
“ That whereas, the said Robert Eproson and Mary F. Eproson are married, and unfortunate differences have arisen between them, so that they have agreed, and by these presents do agree, to make an immediate separation ; and for and in consideration of making provision for the support of the said Mary F. Eproson, the said Robert Eproson hereby agrees that he will pay the said Mary F. Eproson one hundred dollars ($100) in United States gold coin per annum, to be paid twenty-five dollars thereof each and every quarter of the year after date during the lifetime of the said Robert Eproson, if the said Robert Eproson shall have the money to make said payment at the end of each quarter after date; and if not, then the said Robert Eproson hereby agrees to make said payment as soon thereafter as he may get the money to do so ; but in no case shall the said amount of twenty-five dollars, so agreed to be paid, be deferred beyond one year. And the said Robert Eproson and Mary F. Eproson hereby mutually agree to dismiss the case of Mary F. Eproson n. Robert Eproson, now pending in the District Court of the Eleventh Judicial District, County of Calaveras, State of California, for a divorce, upon condition that the said defendant in said case will pay the costs in said case. And the said Mary F. Eproson, in consideration
of the aforesaid covenants, hereby agrees that she will not put the said Robert Eproson to any other or further expense, upon his payment to her of the said one hundred dollars ($100) as aforesaid.
“ In witness whereof, we have hereunto fixed our hands and seals the day and year first above written.
“ Robert Eproson. [seal.]
“Mart F. Eproson. [seal.]”
Thereafter they lived separate and apart, the action for a divorce having been dismissed.
In February, 1876, the decedent executed a will directing the executors therein named to administer the estate for the benefit of his only surviving child, and containing the following bequest:
“ Fourth—I give, devise, and bequeath to my wife, Mary F. Eproson, one hundred dollars in gold coin, to be paid to her by executors, out of the estate, whenever the funds may be in their hands, provided my said wife will in no manner assert, or attempt to assert, any right whatever to any other property of my estate, or attempt in any manner to interfere with the execution of this, my last will and testament.”
The petitioner refused to accept the bequest, and before the close of the administration of the estate, commenced these proceedings. The executors opposed the application, on the grounds that by the terms of the will the decedent had bequeathed the property to them in trust, and that the petitioner was living apart from her husband at the time of his death. The application was denied, and the petitioner appealed.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
