Raymond v. Raymond

MOORE, P. J.

The executors of the estate of Lee Roy Raymond appeal from an order setting apart a probate homestead for petitioner, Mrs. Soledad Raymond, widow of decedent, out of decedent’s separate property. They contend that it was error to select such homestead when there was suitable, residential property owned by petitioner and decedent as tenants in common.

Decedent had been married to petitioner for 17 years. He had had a former wife with whom he had reared his family in the home on El Molino Street in Alhambra. When he married petitioner, he took her to live in the same residence. Decedent left an estate appraised at $203,887.17. One asset of the estate is an undivided one-half interest in a court consisting of 10 three-room apartments. The property consists of three buildings. Two of the buildings are one-story frame construction. They occupy the sides of the lot; each has four apartments. The third building is at the rear. It contains garages for all the apartments on the ground. Over

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them are two other apartments, each of which has a bedroom, bathroom, combination kitchen, dinette and living room. Petitioner was the cotenant with decedent in the ownership of such court. The El Molino property has a two-room apartment carved out of the home, but it is under the same roof.

In selecting a probate homestead, the probate court has wide discretion and its order will not be disturbed unless there has been an abuse of such discretion.

(In re Walkerly,

81 Cal. 579, 583 [22 P. 888].) The court will give the family “a homestead of as great a value” as possible considering the amount and condition of the estate.

(Ibid.)

It is the court’s duty to provide a place “for the family and its surviving members, where they may reside and enjoy the comforts of a home, freed from any anxiety that it may be taken from them against their will, either by reason of their own necessity or improvidence or from the importunity of their creditors.”

(Estate of Kachigian,

20 Cal.2d 787, 791 [128 P.2d 865].) There is no absolute rule to control the court in the selection of a homestead. But while it must be governed by a sound discretion, yet it must consider the value of the homestead, the estate’s financial status and the rights of creditors.