Estate of Edith E. Dalton v. Dalton

WARD, J. Joseph H. Syverson, herein called appellant, appeals from an order designating and setting apart a probate homestead on certain real property which had been returned in an inventory as property of the estate of Edith E. Dalton, deceased, Syverson’s mother. The order was made in response to a petition filed by Frank A. Dalton, the surviving spouse and administrator of the decedent’s estate. The homestead was limited to a term of 10 years from January 19, 1948.

The first petition to set apart the probate homestead was presented prior to the filing of the inventory. Syverson filed objections. The petition was denied upon the ground that “petitioner’s application for an order setting apart a homestead is premature.” Subsequently, after the inventory was filed, there was a rehearing.

The probate court received evidence on the disputed petition. It developed that the deceased had been married to objector Syverson’s father from whom she obtained a divorce. Later she married one Benson; and subsequently she married Dalton. During the period between the date when Dalton applied to set aside the property as a homestead and the date the order was made thereon, it developed, as appears from the record, that Dalton had remarried and was occupying the designated premises. This status of the administrator husband is mentioned in the closing brief. There was also con[335]flieting evidence on the intent of the decedent—whether she desired Dalton to retain the premises after her death.

The objections filed by Syverson are based entirely upon the claims that he is the owner of the property in question, which is described in the inventory; that Dalton “never had any right or title in or to said real property”; that a separate action is pending to quiet title wherein Syverson is plaintiff and Dalton as administrator is defendant, and that a homestead appraisement was not made in accordance with Probate Code, section 664. The last point is not urged in the briefs.

The objections presented before the probate court, and advanced in appellant’s opening brief in this court, are based upon the claim that the probate court erred in attempting to set aside a probate homestead to the surviving spouse since the homestead property had been conveyed to Syverson by the decedent before her death. In brief, Syverson did not contend that he was an heir or legatee but based his objection upon a claim that the title to the particular piece of property was not held by the estate.