75 P. 301 | Cal. | 1904
These are appeals from an order setting apart from the property of the estate of deceased a homestead for the use of the surviving wife for and during the period of administration of said estate and until its final distribution. One appeal is taken by the executors of the will of deceased, and the other by certain devisees and legatees under his will. It cannot be held that the executors are not "parties aggrieved" by such an order, within the meaning of those words as used in the law relative to the right of appeal. (In re Heydenfeldt,
It is contended by appellants that the property set apart should not have been set apart for two reasons, which are, substantially: 1. That the property was of such a character that it was not capable of being selected as a homestead; and 2. That the homestead set apart is excessive in value, considering the value and condition of the estate.
The property set apart consisted of a lot of land in the city and county of San Francisco, with a frontage of twenty-five feet on Ellis Street, and a depth of one hundred and thirty-seven and one half feet, with the frame building thereon. This building was three stories in height, and was subdivided into three flats of one floor each, each flat having a separate street-entrance door on Ellis Street, and being separate and distinct from the remaining flats, except that all of them were connected by a stairway which ran from the ground in the rear of the building, and connected with the kitchen-doors of all of said flats. The top flat, which the testimony showed was more valuable than either of the other flats for rental purposes, was occupied by respondent and deceased as their home prior to and up to the time of the death of deceased, and has been so occupied by respondent ever since the death of her husband.
The lot was appraised at the sum of $7,000, and the building thereon at $10,500. The only other real property of the estate, except a cemetery lot, was a lot on McAllister Street in said city, fifty-five by one hundred and thirty-seven and one half feet, appraised at $15,000, with improvements thereon consisting of a three-story frame building, containing a store and two upper floors, appraised at $3,500, and another two-story frame building, the character of which does not appear, *649 appraised at $1,200, all of the same being encumbered by a mortgage for $10,000. The whole estate was appraised at $41,419.25, and was found to be solvent. So far as appears, there was no creditor other than the holder of the mortgage above referred to, and no property suitable for homestead purposes other than the property set apart.
1. Admittedly, the court in probate proceedings has the power to set apart premises as a homestead, if they be suitable and proper for residence purposes, and could have been legally selected as a homestead during the continuance of the marriage if the parties then actually resided thereon. There is no question as to the suitability of the building here involved for residence purposes, and, leaving out of consideration the question of value, we are satisfied that under the provisions of our statute and the numerous decisions of this court in regard thereto the premises set apart could have been legally selected as a homestead during the continuance of the marriage.
Section
Appellant's claim appears to be, that there were in fact three dwelling-houses upon the land; that a court may set apart only one dwelling-house; and that as the land is an ingredient part of the homestead, and a separation of the land and one dwelling-house from the other two dwelling-houses is impossible, owing to the manner of construction, no homestead at all can be set apart.
When the statute speaks of the "dwelling-house" it means the "building" which is occupied as a dwelling-house by the family, and not such portion of the building as may be actually used by the family for residence purposes. It is well settled, as was said by this court in Heathman v. Holmes,
Appellants rely also on a line of cases where it is held that where two or more buildings suitable for dwelling-house purposes, belonging to the claimant, are situated upon the same parcel of land, and the claimant resides in one, he can legally select but one as a homestead. (In re Ligget,
In the case at bar, one floor of a three-story residence building was actually occupied as the family home, the occupation being solely for the purposes of such a home, and not merely incidental to some other purpose. The place so occupied was an integral part of the land on which the building stood. The fact that the building contained two other stories so constructed that they were more adapted for renting purposes, by being built with separate street-entrances, could not impair the right of the claimant to select as a homestead the building and all of the land on which it stood. While those floors may have constituted separate dwelling-places, there was but one building, incapable of division, and the form of construction of the building is immaterial.
The case comes fairly within the doctrine of Heathman v. *652 Holmes,
Being suitable for residence purposes at the time of its selection by the court, and of such a character that it could have been legally selected during the life of the husband, it was capable of selection by the court.
2. It is settled that there is no specified limitation of value in the case of a probate homestead, the rule being, that the court may set apart such property as, regardless of its value, in view of the value and condition of the estate, may seem just and proper. (Estate of Walkerly,
While the rights of creditors are not to be disregarded in setting apart a homestead, they "are subordinate to the right of the family to a home" (Estate of Adams,
As before stated, there is here no question as to the right of any creditor, and, so far as the record goes, it shows that the only other premises were appraised at a higher sum, and fails to indicate that the same, or any portion thereof, was of such a character that it could be set apart as a homestead.
In view of the peculiar condition of this estate, the action of the court below was just and proper. Being unable to divide the only property suitable for homestead purposes, it was necessary to set aside the whole of such property, but it was set apart for the most limited period, the period of administration of the estate, and it was further provided that the family allowance theretofore granted should cease and determine. Thus the rights of all others interested in the estate were preserved so far as was practicable.
The order is affirmed.
Shaw, J., and Van Dyke, J., concurred.