Lord v. Lord

Myrick, J. The deceased died intestate, leaving a widow him surviving, who became administratrix. His mother (the appellant) is his only other heir. The widow filed a petition that a homestead be set apart to her, none having been selected, designated, or recorded in the lifetime of the intestate. She petitioned the court to set apart three parcels of land, viz.: First, containing 115.98 acres, being farm land. Second, containing 20 acres, being farm land, and third, containing 1,055 acres, being swamp land. Her petition set forth that the said lands were mortgaged for $5,000, on which some interest had accrued; that the two first described tracts were community property, and had a dwelling-house and other improvements thereon; that the third described piece of land was the separate estate of the intestate; that the entire property was not worth to exceed $5,000 above the mortgage; and that it had been appraised in the inventory of the estate at $9,571.

The petition prayed that the two first parcels be set aside as a homestead, or in case a partition could not be made that the whole be sold, and out of the proceeds a homestead be set aside. Appraisers were appointed by the court, who reported the value of said lands, being three several tracts as stated in the petition, [85]at $9,571; that the first described tract had a dwelling-house with other improvements; that the two parcels first and secondly described were common property, and the piece thirdly described was separate property of decedent; that the premises could not be divided without material injury, and that the whole is encumbered with a mortgage for $5,000 and some interest. Thereupon the widow filed another petition, setting forth the matters contained in her first petition, the fact of the appraisal, and that the property could not be divided Avithout material injury, and prayed for a sale of the property, and that out of the proceeds she be allowed $5,000 in lieu of a homestead. The court fixed a day for the hearing of the petition, and after hearing evidence, found the facts as above, among others, that the first two described parcels were community property, and the other separate property of the deceased, and ordered the property to be sold in one parcel subject to the mortgage, and that out of the proceeds, $5,000, if so much should result, be set apart and designated as a homestead for the said widow, and that she retain the same for that purpose as her own property. A sale was made for $5,444.20, cash, subject to the mortgage; and the sale Avas confirmed and a conveyance made. The administratrix filed her account, in which she charged herself Avith $444.20 of the proceeds of said sale, and omitted to charge herself with the $5,000. The appellant contested the settlement of the account; and her objections being overruled, this appeal was prosecuted.