54 Cal. 223 | Cal. | 1880
The transcript on appeal shows that Bernard Burns departed this life, intestate, in the City and County of San Francisco, on the 8th day of December, 1876, leaving real estate situate in said city and county. That on the 22nd day of December of the same year, letters of administration were duly issued to Lizzie Burns, the widow of said deceased, by the Probate Court of the City and County of San Francisco, and administration of said estate was duly had in said Probate Court. That on the 19th day of January, 1877, Lizzie Burns presented her petition to said Court, setting forth that the deceased, Bernard Burns, had not selected and recorded a homestead upon his real estate during his lifetime; that on the 12th day of January, 1877, an inventory and appraisement of the real estate of said deceased was duly filed in said Probate Court, by which it appears that the said Bernard Burns died seized of a certain piece or parcel of land, (describing it) situate in said city and county, of the value of $3,000, and concluding with a prayer that said lot of land be set apart to her as a homestead. The application of said Lizzie Burns was duly considered by the said Probate Court, and on the 26th day of January, 1877, a decree was entered by said Court setting apart said lot of land to the use of petitioner as a homestead. There was no appeal from this decree ; but on the 16th day of July, 1877, one Ann Gordon, representing herself to be a sister of the deceased, Bernard Burns, presented a petition on her own behalf, as well as on behalf of certain other heirs of the deceased, praying the Court to set aside, vacate, and annul said order of January 26th, 1877. To this petition a demurrer was interposed by Lizzie Burns on the 17th day of August, 1877, and on the 25th day of the following month said demurrer was sustained by the Probate Court.
On the 17th day of January, 1878, another petition was presented on behalf of the same parties, for a final account and distribution of the estate of said Bernard Burns, and praying that the said Lizzie Burns be cited and required to render to said Probate Court a full, complete, and final account of her
It is apparent that an attempt was thus made to accomplish indirectly what the same parties had failed to obtain by the former petition of J uly 16th, 1877.
This application was denied by the Court on the 1st day of April, 1878 ; and on the 12th day of the same month a motion for a new trial was made, which motion was denied on the 16th day of J uly; and on the 12th day of September, petitioners filed a notice that they appealed to the Supreme Court, “from the order of the Probate Court, made and entered on the 16th day of July, overruling a motion for a new trial upon the matters contained in said petition, and from the whole thereof.”
The only question presented to this Court, in the argument of' the appeal, relates to the validity of the order of the Probate Court of January 26th, 1877, setting aside to Lizzie Burns, as a homestead, a certain lot, the same being a part of the estate of her deceased husband.
It is claimed on behalf of the appellants that the Probate Court had no power to set apart said lot as a homestead, for three reasons:
1st. Because said lot was vacant and unimproved, and never had the character of a homestead impressed upon it during the lifetime of Bernard Burns; 2nd. Because it exceeded in value' the sum of one thousand dollars; and 3rd. Because no notice of the proceeding setting apart the homestead was given to the heirs of the deceased Bernard Burns.
Section 1465 of the Code of Civil Procedure provides that, “ Upon the return of the inventory, or at any subsequent time during the administration, the Court or the Probate Judge may, on his own motion or on petition therefor, set apart for the use of the surviving husband or wife, or the minor children of the decedent, all property exempt from execution, including the homestead selected, designated, and recorded. If none has been selected, designated, and recorded, the Judge or the Court must select, designate, set apart, and cause to be recorded, a homestead for the use of the persons hereinbefore named, in
The homestead mentioned and provided for in article two, must not exceed in value the sum of $5,000. (§ 1475, Code Civ. Proc.)
“ When the homestead has been set apart,- it ceases to be a ■ part of the assets of the estate, and neither the Court nor the administrator has any further power over it, and it has become, for all further purposes of the administration, as if it had never existed.” (In the Matter of the Estate of Orr, 29 Cal. 101.) The order of the Probate Court, of April 1st, 1878, was therefore, properly made.
It is unnecessary for us to determine, on this appeal, whether the decree of January 26th, 1877, setting apart the homestead to the widow of Bernard Burns, was regular or otherwise. It was an appealable order under § 969 of the Code of Civil Procedure, and § 1715 of the same Code requires such appeal to be taken within sixty days.
The notice of appeal in this case- was not filed until September 12th, 1878, which was too late to make the order complained of a proper subject of review by this Court.
Order affirmed.
Thornton, J., Sharpstein, J.. and Myrick, J., concurred.
