In Re Estate of McCarthy

HALL, J.

Appeal from order setting apart a homestead to the widow of deceased.

The petition for the order states that the premises therein described were selected by deceased in his lifetime as a homestead from community property, and that the value of the same does not exceed five thousand dollars, and is valued, in the inventory at five thousand dollars, and was of less value than five thousand dollars—to wit, of the value of about two thousand dollars—at the time of the selection of the same as a homestead.

The appellant, a creditor of the estate, filed her written opposition to the petition, in which she alleged, among other things, that the value of the premises sought to be set apart as a homestead is greatly in excess of five thousand dollars,— to wit, nine thousand dollars or thereabouts,—and that its value at the time of selection exceeded five thousand dollars, and was fifty-five hundred dollars.

It is admitted that the estate will be insolvent and there will be no money to pay appellant’s claim if the premises are finally set apart as a homestead.

If the premises did not exceed in value the sum of five thousand dollars at the time they were appraised in the probate proceedings it was the imperative duty of the court to make the order setting them off to the petitioner. The main issue upon which the matter was tried in the lower court was as to the value of the premises. Many witnesses were called and examined, and thereupon the matter was submitted.

[469]

The judge afterwards filed an order in writing in which it is stated: “The evidence here shows that the property in question is of greater value than $5,000, and that the two claims presented are just debts against the estate, and that the same should be paid before an order is granted placing' the property beyond the reach of said creditors.” The judge further stated in the order that it was his “opinion that our statute does not authorize the superior court of this state to set apart a homestead of greater value than $5,000 when the making of such an order would defeat the collection of just claims of creditors. Under the facts as developed by the evidence, the court will defer action on said petition until another inventory is made and filed herein, when such further action will be taken as may appear legal and just to all parties concerned.”