Adams v. Bank of Woodland

This appeal is from an order of the superior court made in the above-entitled estate, setting apart a homestead to the respondent, who is the widow of the deceased. Her original petition for the homestead was filed September 13, 1895, and an amended petition, upon which the hearing was had, was filed January 17, 1896. The appellant is a creditor of the estate, and filed objections to the granting of the widow's petition, and upon the issues thereby presented the court filed its findings of fact and made the order appealed from.

The court finds that the decedent died January 20, 1890, leaving a widow — the respondent herein — and four children, who are still minors and under the care and maintenance of their mother; that no homestead was selected by him or by the petitioner in his lifetime; that he left a last will and testament, in which the respondent was named as one of his executors, and that the same was admitted to probate and letters testamentary thereon issued March 17, 1890; that the whole of the real property belonging to the estate was the separate property of the deceased; that the property prayed for as a homestead was the family residence of the deceased and his family; that said tract will not more than support and maintain the petitioner and her children, and is more suitable for a homestead than any other property of the estate. An inventory of the estate of the deceased was filed April 15, 1890, and the same was then appraised at the sum of two hundred and thirty-two thousand seven hundred and thirty-two dollars. The record does not show the amount of the indebtedness at that time, but it appears that a portion *Page 382 of the estate was mortgaged to the appellant, and that under a foreclosure of this mortgage about two thousand acres of the land were sold, leaving a deficiency judgment of nearly twenty-seven thousand dollars, which has not been paid. The court finds that the estate is still indebted to the appellant in the sum of about eighty thousand dollars, for which the appellant holds no security, and is indebted to another creditor in the sum of eight thousand dollars. The court does not find the value of the estate still remaining in the hands of the executrix, or whether there are any other outstanding claims against the estate, but it does find that the property of the estate, "if sold at public auction under order of this court, would not pay in full the outstanding indebtedness of said estate and the charges and expenses of administration already accrued and to accrue in the final settlement of said estate"; and at the hearing upon the petition one of the witnesses testified: "The whole estate is not worth seventy thousand dollars. If this property is set apart as a homestead to Mrs. Adams, the creditors will lose at least fifty per cent of their debts." The property set apart as a homestead consists of two hundred and fifteen acres of cultivated land and about eighty five acres of land not cultivated in the creek bottom, and the court finds that at the time the order was made setting it apart it was of the value of eleven thousand one hundred and thirty-nine dollars and seventy cents.