In re Estate of Carriger

The Court. Kate C. Carriger is the widow of William W. Carriger, deceased, and appeals from an order of the superior court, in probate, denying her petition for a homestead.

After the death of the husband, Solomon Carriger produced what purported to be the last will and testament of the deceased, in which he was named as executor, but the widow contested the probate thereof, and, pending these proceedings, said Solomon Carriger was appointed special administrator, and saffi contest not having been finally determined, he has ever since been, and still is, such special administrator; and, as such, by order of the court, made and returned an inventory of the estate. There was no community property, and the [619]only real estate consisted of an unoccupied and unimproved lot of the value of two hundred dollars, and a one-ninth interest, undivided, in a tract of land containing nine hundred and four and eighty-five one-hundredths acres, upon which there is a dwelling-house in which the husband and wife “ during their marriage had their residence and made and kept their home, . . . •. with the knowledge and consent of the cotenants of said William in said land”; and this undivided interest, her petition alleged, does not exceed in value the sum of five thousand dollars.

The foregoing are the facts stated in the petition, so far as material to be noticed, and upon which she prayed that said undivided interest be set apart to her by the court as a homestead.

At the hearing the special administrator appeared by counsel and admitted all the allegations of the petition to be true, and, upon these facts, the court made an order denying her petition, and from that order this appeal is taken.

Upon this record two questions are made: 1. Has the probate court jurisdiction to set off a homestead while the estate is in the' hands of the special administrator, no general administration having at any time been granted? 2. Can said undivided interest of the deceased in said larger tract be set apart to the widow as a probate homestead ?

If either of these questions should be decided against appellant the order appealed from must be affirmed; and, as it is well settled in this state that a homestead cannot be created by a cotenant in lands held by tenancy in common, it is not necessary to consider the first question above stated.

In Wolf v. Fleischacker, 5 Cal. 244, 63 Am. Dec. 121, it was held that a homestead could not be declared by a cotenant in lands held in cotenancy.