Estate of Mendes

LANGDON, P. J.

is an appeal by the guardian of the persons and estates of Albert B. Sequeria and Louis B. Sequeria, minor children of the above-named decedent, from an order of the probate court setting aside a homestead in certain real property in the city of Oakland, California, for the use and benefit of the surviving husband of deceased and said minors. This order was made pursuant to the provisions of section 1465 of the Code of Civil Procedure.

By stipulation the decree setting apart the homestead comprises the record upon appeal. It recites the filing of a petition by the guardian of said minors to have the property involved here set aside to them as a homestead and a petition by A. R. Mendes, surviving husband of deceased and administrator of her estate, to have the same property set apart to him and to said minors, jointly as a homestead. In said decree the court finds the facts to be: That the real property sought to be set aside as a homestead was formerly the community property of M. B. Sequeria, who up to the time of his death on the seventeenth day of March, 1917, was the husband of Maria Mendes, since deceased, and the father of the said minors; that at the time of the death of M. B. Sequeria said real property was impressed with a homestead theretofore duly declared, acknowledged, and recorded while said property was community property as aforesaid; that after the death of said M. B. Sequeria, his widow intermarried with said A. R. Mendes, and she died on the twentieth day of October, 1918, being still the wife of said Mendes; that after the death of said M. B. Sequeria, Maria Mendes did not convey, encumber, nor homestead the said real property in any manner; that the estate of said M. B. Sequeria is now and ever since shortly after his death has been in course of probate, but no proceedings looking to the setting apart of said property as a homestead in the matter of his estate have been instituted, except a petition filed by said guardian to have said property set apart to said minors, which petition was denied. The decree then recites the facts of minority of the wards, appointment of the

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guardian, filing of inventory and appraisement in the matter of the estate of Maria Mendes, deceased.

Upon these facts the court decreed that the property he set apart until the first day of January, 1923, to A. R Mendes, Albert B. Sequeria, and Louis B. Sequeria jointly; thereafter, until said Albert B. Sequeria shall attain the age of twenty-one years, to said Albert E. Sequeria and Louis B. Sequeria jointly, and thereafter to said Louis B. Sequeria until he shall have attained the age of twenty-one years.