Stiebel v. Roberts

SPENCEJ. This is an appeal by plaintiffs from a judg- ment in favor of the defendants and also in favor of the interveners.

Plaintiffs are some of the beneficiaries under the will of Charles H. Roberts, deceased. Defendant Elizabeth Clare Roberts is the widow of said deceased and a beneficiary under said will. Defendants Charles Sims and Earl J. Wherry are also beneficiaries under said will and were named as defendants because of their refusal to join with plaintiffs in prosecuting this action. Defendant C. S. Price is an attorney at law who acted as attorney for the executrices. executrices.

[436]Plaintiffs brought this action seeking to set aside an .order of the probate court setting apart absolutely to defendant Elizabeth Clare Roberts a certain lot of land as a probate homestead. After said order had been made, defendant Elizabeth Clare Roberts executed a deed of trust upon said lot to secure a note in the sum of $2,500. The interveners obtained leave to file their complaint in intervention in this action seeking to have said deed of trust declared to be a valid and subsisting lien upon said lot and prior to any interest of any of the parties to the action.

Said Charles H. Roberts, deceased, died testate in 1933. In the same year, letters testamentary were issued to defendant Elizabeth Clare Roberts, his widow, and to plaintiff Ethel E. Stiebel, his daughter by a former marriage. Defendant C. S. Price was the attorney for said executrices. Said executrices filed an inventory and appraisement and, in 1934, they filed a first account and a report. Thereafter and in the same year defendant Elizabeth Clare Roberts individually filed a petition and later an amended petition for an order setting apart a certain lot as a probate homestead. She alleged therein among other things that said property was community property; that it consisted of a bungalow court in which she was residing; and that it was impossible to give a description of that portion of said lot. upon which the bungalow was situated in which she was residing, and that she therefore selected and designated the entire lot and asked that it be set apart to her as a probate homestead. Said amended petition came on for hearing and was granted on October 10, 1934. The order recited that notice of the hearing of the amended petition had been given as .required by law; that the inventory and appraisement had been filed; that no homestead had been selected during the lifetime of the deceased; and that the lot described was community property. It was ordered that said lot be “set apart absolutely as a homestead for the use and benefit of Elizabeth Clare Roberts, the widow of the deceased. ’ ’ In 1936, a motion was made to vacate said order but said motion was denied. It does not appear that any appeal was ever attempted from either the order setting apart the homestead or from the order denying the motion to set aside said order.