Krieg v. Crawford

LANGDON, P. J.

This is an appeal by the plaintiffs from an interlocutory decree in a partition suit. By said decree certain land in San Francisco was ordered to be sold and the proceeds divided in fractional parts among the defendants and the plaintiff, Lawrence Krieg.

The plaintiffs alleged that Margaret Krieg was the owner of, and in possession of, a homestead right for life in the said land, granted to her by a decree of the superior court of this state, in and for the city and county of San Francisco, in proceedings in the matter of the estate of her deceased husband; that plaintiff, Lawrence Krieg, was the owner of an undivided one-fifth interest in fee simple absolute in said land, subject to the life estate of said Margaret Krieg. It was alleged, further, that the various defendants were, respectively, the owners in fee simple absolute of fractional shares in the remainder after the expiration of the life estate, and the court was asked to partition the property, and if partition in kind be found to be impracticable, that a sale be ordered and the proceeds thereof directed to be invested for the benefit of Margaret Krieg during her life and the principal distributed to the defendants as their interests might appear after the expiration of the life estate.

Defendants answered setting up that Margaret Krieg had not been residing on the property in question for a long time prior to the commencement of the action; that she was not at the time of the commencement of said action the head of

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a family; that she had abandoned, terminated, and surrendered the homestead and all her rights thereunder. They asked for partition of the property among themselves and plaintiff, Lawrence Krieg.

The trial court found that Margaret Krieg claimed under an order of the superior court in the proceedings in probate in the matter of her deceased husband’s estate; that by said order the property in controversy was set apart to Margaret Krieg as and for a homestead for and during the term of her natural life, and as and for a homestead unto Lawrence Krieg, minor son of decedent, during the term of his minority, or up' until October 16, 1920; that by the decree of distribution in said estate, said property was distributed to the defendants and Lawrence Krieg, in the proportions prescribed by the will of decedent, subject to the homestead for life in Margaret Krieg; that Lawrence Krieg has arrived at his majority; that Margaret Krieg has not, for a long time prior to this action, occupied the premises as a homestead ; that she is no longer the head of a family, and that she has abandoned, terminated, and surrendered the homestead and all rights thereunder, and has no further right, title, or interest in the property. Upon these findings the trial court made an order for a sale of the premises and a distribution of the proceeds among the' defendants and Lawrence Krieg, excluding Margaret Krieg from participation in the distribution.