153 P. 949 | Cal. | 1915
The administratrix of the estate of Bernard Bette, deceased, appeals from an order settling her final account.
Bernard Bette died on the second day of August, 1912. Less than a month prior to that time his wife, Marie, declared a homestead upon the premises inhabited by Bette and his family. Marie was duly appointed administratrix of the estate of her deceased husband. Notice to creditors was given and on September 25, 1912, she filed an inventory and appraisement (dated September 11, 1912), wherein the property involved was appraised at $8,750. The appraisers also returned the entire estate as community property.
On September 26, 1912, Marie Bette, as widow of Bernard Bette, filed her verified petition to have the property on which she and her children were residing set apart to her as a homestead. In said petition the widow alleged the declaration and recordation of the homestead during the life of Bernard Bette, the existence of a mortgage for three thousand dollars on said premises, the character of the land and improvements as community property, and that in the appraisement returned to the clerk of the court the said property was estimated at $8,750 in value. The court made an order fixing a day for the hearing of the widow's petition, and proof by posting of notices of the time and place fixed by the court for said hearing was made according to law. The court heard the petition and entered its decree setting aside the described property to Marie Bette as surviving widow of Bernard Bette, deceased, the decree reciting among other things that upon *585 the death of Bernard the homestead had vested in Marie as his surviving widow. This decree was dated October 10, 1912, and was recorded October 12, 1912.
In her final account filed July 25, 1913, the administratrix charged herself with the value of the property as appraised, namely, $8,750, and claimed a credit for a like amount based upon the decree setting aside the property as a homestead. T.G. Wyatt, a creditor, successfully contested this part of the account. The court permitted documentary proof to the effect that Bette had acquired the property before marriage, and Marie Bette, testifying as a witness for the contestant, said that the property set apart as a homestead had been acquired by her husband prior to that time. In sustaining the contest the court found that the order setting apart the homestead was void; that said order was made without jurisdiction on the part of the court to make it, and that the appraisers and the court had failed to follow the provisions of sections 1465,
Appellant contends that compliance with the provisions of sections 1476 et seq., is not the measure of the court's jurisdiction, and that therefore the decree setting aside the homestead is not vulnerable to collateral attack. She insists that the remedy of the creditors, if any they had, was by appeal from the order setting aside the homestead, or by motion under the provisions of section
There is nothing in Estate of McCarthy,
The court allowed contestant's claim for $417.37, the amount originally demanded. The administratrix had approved the claim for $392.37 and it had been allowed by the court for that amount. On settlement of the account the creditor asserted that the reduction had been made in view of an agreement between him and the administratrix that the debt should be promptly paid. The court decided that he was entitled to the larger amount. Section 1496 of the Code of Civil Procedure provides for the presentation of claims to the administratrix and the approval or rejection of such demands by her and by the court. Where, as here, there has been a partial rejection of the claim, the only recourse of the dissatisfied creditor is a suit. (Code Civ. Proc., sec. 1498.)
The order settling the final account of the administratrix is reversed.
Lorigan, J., and Henshaw, J., concurred.
Hearing in Bank denied. *588