Crocker National Bank v. Knight

LANGDON, P. J.

This is an appeal from an order of the superior court of the city and county of San Francisco,

[619]

setting apart to Frances Hale Knight, as a probate homestead, certain real property out of the estate of her deceased husband, George A. Knight.

George A. Knight died in 1916, leaving a widow, Frances Hale Knight, respondent here, and two adult sons. Frances Hale Knight was appointed executrix of his will. As such executrix she sold some of the property of the estate and then petitioned the court to set apart to her as a probate homestead 680 acres of land in Mendocino County. This application was resisted by the Crocker National Bank of San Francisco, a creditor of the estate and appellant here, on the ground that the estate was insolvent.

The only question involved is as to whether or not the trial court abused its discretion under the peculiar facts of this ease. We think it did not. When the respondent herein applied to the court to set apart the property in question as a homestead for her, the appellant objected to this order being made. It did not contend that the property should be divided or that only a part thereof should be set apart to respondent or that the property was of a character that it could be divided without greatly impairing the value per acre. The appellant merely appeared opposing the granting of the homestead and prayed that respondent’s petition should be denied. A hearing was had and testimony offered which supports the following findings of the court: “That the property consists of about six hundred acres of agricultural, tillable and grazing land, lying in one connected body and not in separate parcels, except that the state highway runs through a portion of it; that there is a house and barns upon the property and it is in every way suitable for a home for petitioner; that it was community property of petitioner and her husband; that the property was inventoried and appraised together with two other parcels which have since been sold by the executrix at the sum of $26,000 and that since then the executrix of the will of the decedent has sold the said two other parcels of the real property described in said inventory and appraisement for over $22,000, leaving the property sought to be set aside as a homestead unsold in said estate; that the value of said property is approximately $15,000; that the property remaining in said estate is of the value of approximately $1,100; that the property asked as a homestead cannot be