Estate of Wright

STURTEVANT, J.

Clara C. Wright, as guardian ' of three minors, filed a petition asking that a homestead be set aside in favor of the decedent’s minor children. The trial court made an order granting the petition as prayed for and from that order the administrator has appealed and has brought up the judgment-roll. The appellant states that the sole question he seeks to have reviewed is this: “When a married man declares a homestead on his separate property, procures a final decree of divorce from his wife, dies, leaving two adult and three minor heirs, and the inventory shows the homesteaded property among the assets of his estate, should the court in setting apart a homestead for the minor children grant the property to said minors in fee or merely for a limited number of years?”

The real estate involved is lot 5, block 8, of the Alta Yista tract in the city of Fresno. It was the separate property of the decedent. On the twenty-first day of February, 1927, the decedent, his wife and four minor children were residing on that property and on said date the decedent executed a declaration of homestead and caused it to be recorded. One of the minor children attained her majority on the twenty-third day of February, 1927, while a resident of this state. The other minor children on the date the decree was made were respectively nine years, seven years and five years of age. On the twenty-eighth day of March, 1928, a final decree of divorce was entered dissolving the bonds of matrimony theretofore existing between Oscar J. Wright and his wife. The record does not disclose that in the divorce proceeding any order was made or was not made regarding the homestead.. On September 3, 1928, Oscar J. Wright died and thereafter an adult son was appointed administrator with the will annexed of the estate of the deceased. The record does not disclose what provisions, if any, were contained in the will regarding the disposal of the homestead.

In her petition the guardian set forth the foregoing facts and prayed for an order that the homestead be set aside

[635]

in fee for the minor children. The trial court ordered judgment as prayed for. The respondent takes the position that the law pertinent to the subject of the

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