Smith v. Smith

McFarland, J. This is an appeal by certain heirs-at-law of E» O. Smith, deceased, from a probate order setting aside certain premises as a homestead to the respondent, who is the widow of the deceased.

The facts necessary to be stated are these s The said premises consist of an ordinary city lot in the city of San Jose. It has a dwelling-house on it which covers nearly the entire lot | and in this house the deceased and the respondent resided for several years next before the death of the former. The said premises were community property, and there was never any declaration of homestead upon the same made by either of the spouses. The deceased purchased the lot for four thousand five hundred dollars, paying two thousand dollars in cash and giving his note for two thousand five hundred dollars —the deed remaining in escrow, to be delivered upon payment of the note. The note was not paid nor the deed delivered during the lifetime of [450]the deceased; but afterwards the respondent procured a third person to take an assignment of the note, and thereupon the deed was delivered and recorded, said third person now holding the note. There are no minor heirs of the deceased. The premises are now of the value of ten thousand dollars, and the balance of the estate, above all debts and expenses of administration, is worth seventy-five thousand dollars, with a rental of five thousand one hundred dollars per annum. The lot could not be divided without destroying its character and use as a home, and is, as the court finds, “indivisible.” There is no other land of the estate suitable for a homestead. The contest is entirely between the respondent and certain lieirs-at-law of the deceased—the rights of creditors not being in any way involved.

Appellants contend that, upon the foregoing facts, the court had no power to set aside said premises to the widow as a homestead because their value exceeds five thousand dollars, and contend that the court should have directed that the said premises be sold, and that out of the proceeds respondent be given five thousand dollars, and no more, in “lieu of a homestead.” The position of appellants is not tenable.

Section 1465 of the Code of Civil Procedure provides that in a case like the one at bar the court “ must select, designate, and set apart, and cause to be recorded, a homestead for the use ” of the surviving wife. This “homestead” which is to be selected, recorded, etc., is not five thousand dollars, nor any other sum of money. It is a place of residence; it is land—real property. When a homestead has been selected by the parties, under the provisions of the Civil Code, circumstances may arise under which they will not be able to continue to hold it. Notably is this so when the rights of a creditor are involved; and the code provides the machinery by which, in such a case, the creditor may have the homestead sold and the proceeds in excess of five thousand dollars applied to his debt; but this provision has nothing to do with the creation of a homestead—even when it is established by the parties under the Civil Code. In case of a probate homestead under the Code of Civil Procedure, the court, in the first instance, creates the homestead; and the question there is, not what shall be done with an existing homestead, but how shall