In Re Estate of Pohlmann

HARRISON, P. J.

Appeal from an order in probate setting apart a homestead to the minor children of the deceased. The above-named H. H. Pohlmann was a resident of the county of Santa Clara, and died in that county November 20, 1903, leaving two minor children, to whom by his last will and testament he gave all of his estate. His wife had previously died, and the respondent, Conrad Weller, was appointed guardian of the persons and estates of the minor children. After the will had been admitted to probate the executor returned an inventory of the estate, consisting of both real and personal property, the personal property being valued at about $900, and the real estate consisting of a tract of land of about fourteen acres in the county of San Joaquin, with a dwelling-house thereon, appraised at the sum of $1,350. The decedent had not selected or recorded any homestead in his lifetime, and in September, 1904, the guardian of the minor children presented a petition to the superior court to set apart the above-named real estate to the minor children as a homestead. The executor of the will, and certain others claiming to be creditors of the estate, filed opposition thereto, and at the hearing of the petition the court overruled their objections and made an order setting apart the real estate to the said minors for a homestead. From this order the executor has appealed. No appeal has been taken by either of the other contestants, and the court does not find, nor is there any evidence set forth in the record, that either of them was a creditor of the estate, or that the deceased left any creditors at his death.

1. The contention of the appellant that a court is not authorized to set apart a homestead for minor children who have no living parent is contrary to the language of the stat

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ute and to previous decisions of the supreme court. Section 1465 of the Code of Civil Procedure authorizes the superior court, in case a homestead was not selected and recorded in the lifetime of the decedent, to select, designate, and set apart, and cause to be recorded, a homestead for the use of the surviving husband or wife and the minor children, or, “if there be no surviving husband or wife, then for the use of the minor children.” In

Estate of Davis,

69 Cal. 458, [10 Pac. 671], the deceased died testate, leaving two minor children, but no husband. She also left a lot with a dwelling-house thereon which, in her will, she directed to be sold, and that a portion of the proceeds should be given to her brother. The superior court set apart this real estate as a homestead for the minor children, against the objection of the brother, and the order was affirmed by the supreme court. In