In Re the Estate of Eagle

On Rehearing.

[En Banc. February 3, 1941.]

Jeffers, J.

This is an appeal from an order of the superior court for King county, entered December 19, 1939, in probate proceedings, denying the petition of the surviving spouse for an award of property in lieu of homestead.

There is no dispute as to the facts. Hattie M. Eagle died testate on July 30, 1939, at Seattle, Washington, leaving surviving her, her husband, Clark Eagle. There were no children. All the property involved herein was admittedly the separate property of Hattie M. Eagle. The will of decedent provided:

“I. I give and bequeath to Rev.…