Estate of Shively

COOPER, C.

This is an appeal by the administrators of the above estate from an order settling their final account. Several items were charged to the administrators or disallowed, which are the subjects of controversy here. These items we will dispose of in the order presented.

1. The first is the sum of $535.29 which the court ordered charged to the administrators. Pending the administration of said estate, the administrators, by authority of the court, executed a mortgage to the Savings Bank of Humboldt County for the sum of eighteen hundred dollars. The code authorizes such mortgage to be made when it appears to the court to be for the advantage of the estate. (Code Civ. Proc., secs. 1577, 1578.) The administrators credited the estate with the eighteen hundred dollars, and the same was evidently used in paying the debts and expenses of administration. The mortgage covered about fourteen acres of land, which was afterwards sold to one French, and also about one hundred and twenty-two acres, which was, subsequent to the execution of the mortgage, set aside by the court as a probate homestead for the minor children. The fourteen-acre tract, not included in the homestead, was afterwards sold to one French for seven hundred and fifty dollars. The bank demanded the payment of six hundred and fifty dollars of the seven hundred and fifty dollars before it would release the fourteen acres from the mortgage, which was accordingly paid to the bank. The court refused to allow the item to any

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greater extent than $114.71, “-that sum being the relative proportion that the mortgage on the homestead bore to the mortgage oñ the fourteen acres sold according to their respective values.” There is no claim made that the administrators received the $535.29, but it is claimed, and the trial court held, that they could not apply it on the mortgage, upon the theory that the moneys of the estate could not be used for the purpose of paying off an encumbrance upon a probate homestead. In this we think the learned judge was in error. The homestead had been encumbered by the administrators for the benefit of the estate. The money obtained by the mortgage became assets of the estate. The administrators had the right to use the money of the estate for the purpose of paying its debts. Suppose they had borrowed the eighteen hundred dollars on their own responsibility and credited the estate with it, using it for paying the debts of the esrate,— does any one doubt that they could have paid themselves from the proceeds of the sale of the fourteen acres as far as it would go? The code (Code Civ. Proc., sec. 1465) provides that where no homestead has been selected and recorded by the deceased that the court “must 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.” .