59 P. 776 | Cal. | 1899
Lead Opinion
This is an appeal from an order directing the executors of the above-entitled estate to pay off and discharge a mortgage lien on the probate homestead which had been set apart to the widow of the deceased.
The deceased left a will in which he devised to his widow a one-half interest in a farm in Sacramento county, and also a one-half interest in the personal property on the farm. The remainder of his estate, with a trifling exception, was left to a daughter and son, children of a former wife. At the time the will was made, the farm, which was appraised at the value of two thousand three hundred dollars, was unencumbered, but afterward it was mortgaged by the deceased to secure the payment of a thousand dollars. The entire estate was the separate property of the husband. Before the time for approving claims against the estate had expired the court, upon application of the widow, set aside the whole farm as a homestead. The order so setting aside the homestead did not limit it to a life estate in the widow, but set it aside to her absolutely. This, of course, was erroneous, but the time to appeal from the order having expired, and no appeal having been taken, and the order, though erroneous, not being void, title in fee under the order vested in the widow. (Inre Moore,
The owner of the debt secured by the mortgage upon the farm never presented his claim against the estate. His recourse was therefore limited to the mortgaged property. (Code Civ. Proc., sec. 1500; McGahey v. Forrest,
The question thus presented is that of the power of the court to order the executors to discharge an encumbrance upon the probate homestead. Since the widow's title comes from the homestead order, and not from the devise, she is not in position to take advantage of the provisions of sections 1544 and
The order appealed from is reversed.
Temple, J., Van Dyke, J., and Harrison, J., concurred.
Concurrence Opinion
If it appeared upon the face of the proceedings setting aside this property as a homestead that it was the separate property of the husband, then the order here made setting aside the property in fee as a homestead would be void — at least, void as to any interest beyond a life estate. For the statute is the measure of the court's power in such a case, and the statute says the property may be set aside *278 for a "limited period," and this court has declared that such limited period may not exceed a term for life. Hence, an order would be void upon its face to the extent, at least, of anything beyond a life estate, which purported to set aside separate property as a homestead in fee. But here we find nothing in the record of the proceedings for setting apart the homestead showing this property to be separate property, and in support of the validity of the order made we are bound to assume to the contrary. In the case of a probate homestead upon separate property set aside for a limited period — for example, five years — I see no legal objection to the court making an order that the general assets of the estate be applied to the satisfaction of a mortgage resting upon it, exactly the same as if it had not been set aside as a homestead. The fact that it is a homestead for a limited period is merely incidental to the main question, and the interests of the estate in such property may be protected by the satisfaction of a mortgage resting upon it.
For the foregoing reasons I concur in the judgment.
