ute of Texas [similar to section 1465 of the Code of Civil Procedure] provides that all property exempt from execution (including the homestead) shall be set apart for the use of the widow and children. Even if the probate court had not been by any law invested with authority to designate for the use of the widow of the deceased the property which in his lifetime had been exempt from execution, yet such property would, in the possession of the widow, be exempt from execution or forced sale. During the existence of the marriage the husband was the head of the family, but on its dissolution by death the surviving wife was placed in that position, and in such position she has all the incidents, rights, and privileges. The same of the husband on the death of the wife. The right of either as the head of the family to retain the property exempt from execution is perfect, and the right of one is entirely equivalent to that of the other, and is neither of a higher, or lower, or different, but of the same, grade, nature, and force. They are co-equals in life, and at death the survivor, whether husband or wife, remains the head of the family." (Smyth on Homesteads, sec 331; Wood v. Wheeler, 7 Tex. 21.)

Under section 1465 of the Code of Civil Procedure the court has no discretion; it must set aside the homestead selected from the community property. (Estate of Ballentine, 45 Cal. 696.) This provision seems to support the theory that the homestead is preserved for the benefit of the surviving spouse and the children, stamped with the same quality that characterized it during the lifetime of the deceased spouse. That section provides that "the court may [shall] of its own motion, or on petition therefor, set apart for the use of the surviving husband or wife, or, in case of his or her death, to the minor children of the decedent, all the property exempt from execution, including the homestead selected, designated, and recorded," etc. Here the quality of the ex

emption is clearly impressed upon the homestead set aside. It would not be a homestead, it would be wanting in the main feature which recommends it to favor, if, upon the death of the head of the family, it were no longer protected by the law of exemption. There is greater necessity for such protection after the death of one of the spouses than before. (Thompson on Homestead and Exemptions, sec. 531.)

Upon principle and authority, we think the sale of the land in controversy, under the execution issued in Porter v. Tyrrell, was void.

The court did not find whether Tyrrell and wife resided on the land up to the time of the death of the latter, unless the finding that they resided thereon at the time the declaration was filed establishes the fact by presumption. The findings, however, are as broad as the issues, and there is no finding of abandonment, either before or after the death of the wife.

Judgment and order affirmed.

WORKS, J., and BEATTY, C. J., concurred.

[No. 12747. Department Two.-March 23, 1889.]

IN THE MATTER OF THE ESTATE OF LOUIS SOHER, DECEASED.

OLOGRAPHIC CODICIL-ATTESTATION BY WITNESS.-An attestation in the following form: "Witness, George Penlington, 123 O'Farrell Street," -written in the handwriting of another, does not show an uncompleted intention to make an attested codicil, or prevent the codicil from being olographic.

ID.-OLOGRAPHIC CODICIL TO ATTESTED WILL.-There may be an olographic codicil to a will in the handwriting of a person other than

the testator.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco admitting a will to probate, and from an order refusing a new trial.

The facts are stated in the opinion.

Charles E. Wilson, and William A. Plunkett, for Appellant.

George A. Knight, and J. A. Hosmer, for Respondent.

HAYNE, C.-Lewis Soher executed before two witnesses, in the form prescribed by statute, a will which was in the handwriting of another. Subsequently he attached to said will the following codicil:

"Owing to the conduct of my son Adolph toward my wife and myself since this will was made, I hereby affirm the foregoing will, except in the ninth article of bequests, where Adolph is included with my wife and other children, which bequest to Adolph I hereby revoke. "Witness my hand this twenty-ninth day of April, 1886. "LEWIS SOHER."

Underneath were the words: "Witness, George Penlington, 123 O'Farrell Street.” All except these latter words is in the handwriting of the testator. The court below admitted the will to probate, but refused to admit the codicil. Two points are made by the respondent in support of the action of the court with reference to the codicil.

1. It is argued that the fact that the codicil was attested by one witnesss shows that it was not the intention of the testator to make an olographic codicil; that it must be presumed that he intended to make an attested codicil, and left the execution incomplete. We see no force in the argument. It will be observed that there is no attestation clause, such as is usual in attested wills and codicils, no statement that the testator signed the will in the presence of the witness, and declared, at the time of signing, that the instrument was his will. If there had been such a clause, signed by only one witness, or unsigned by anybody, there might be more

force in the position, although we do not desire to be understood as expressing or intimating any opinion upon such a case. Here are simply the words, "Witness, George Penlington, 123 O'Farrell Street." These words do not seem to us to indicate an intention to make an attested will or codicil. It may be that the testator caused them to be placed there for the purpose of supplying proof of his own handwriting, or in other words, proof that the codicil was olographic. Many testators execute their wills long before death, and they may be persons who are not well known in the community. It may therefore be difficult to prove the handwriting of a document purporting to be a will, found among their papers after death. In view of this, it would be a natural and proper precaution to furnish means of making the required proof. And it seems to us that courts should presume that the intention of the testator was that of a reasonable and prudent man under the circumstances, and should not adopt a somewhat strained construction to defeat what there is every reason to believe was the desire of the testator. The witness clause is not, under the circumstances, to be considered as a portion of the will, which is no more affected by it than any other document which does not require attestation, such as a deed or contract would be. The case of Power v. Davis, 3 McAr. 162, is not in point. There the testator appended a formal attestation clause in his own handwriting, but left such clause unsigned by anybody. There is no room here for the argument made in that case.

2. It is contended that an attested will cannot be revoked by an olographic codicil. The position of the respondent is based upon the fact that the olographic document refers to the other. The argument is, that the olographic codicil cannot be understood without referring to the attested will; that the latter is in contemplation of law "a part" of the former, and that therefore it

does not come within the definition of an olographic will, which is a will "entirely written, dated, and signed by the hand of the testator himself." This argument, if allowed to prevail, would have far-reaching consequences. It would exclude all reference to any document which was not entirely written, dated, and signed by the testator himself. For example, an olographic will which devised all the right, title, and interest of the testator under a will of his ancestor, or under a marriage settlement or other contract drawn by another hand, would be invalid. Pushed to its logical conclusion, the argument would exclude all reference to deeds or other documents for descriptions of property, etc.

A similar objection was at one time made to references in attested wills to documents which were not attested. Wills have always been required to be executea with formalities of some kind or other; and it was argued that documents which were not executed with these formalities could not be referred to. But considerations of practical convenience prevailed over technical reasoning. And it became well settled that an attested will could refer to documents which were not attested. (See Newton v. Seaman's Friend Society, 130 Mass. 91; 39 Am. Rep. 433; Baker's Appeal, 107 Pa. St. 381; Brown v. Clark, 77 N. Y. 377; Fickle v. Snep, 97 Ind. 291; 49 Am. Rep. 449: Fessler v. Simpson, 58 Ind. 87; Gerrish v. Gerrish, 8 Or. 351; 34 Am. Rep. 585; and see Estate of Shillaber, 74 Cal. 144.) Now, if an attested will can refer to a document which is not attested, we see no good reason why an olographic will may not refer to a document which is not in the handwriting of the testator. The only difference

between an olographic and an attested will is in the form of the execution. The statute has prescribed two forms in which written wills may be executed. In each case the instrument must be signed by the testator. But the formality of witnesses is dispensed with if the instrument is all in the handwriting of the testator himself. One form is