County of San Mateo v. O'Donnell

COAKLEY, J. pro tem.* The county of San Mateo appeals from an order of the superior court of that county, sitting in probate. The order directs that the proceeds of the sale of a recorded homestead be set apart to legatees described below, after payment of costs of administration and funeral expenses. Such an order is appealable. (Prob. Code, § 1240.) The appeal is presented upon an agreed statement. (Rule 6, Rules on Appeal.) The respondent is the executor. The will is holographic.

The will directs that all property both real and personal be sold and the proceeds distributed as follows: (1) $1,000 to the Redwood City Junior Chamber of Commerce, to be used for charitable purposes, and (2) the remainder to three named legatees in equal shares. The executor is one of the legatees. None of the legatees appears to be related to the testatrix. The estate consisted of approximately $500 in cash and the decedent’s home. A homestead had been declared on the real property by the decedent and her husband in 1951, as provided in division 2, part 4, title 5 of the Civil Code. The parties treat the testatrix as the surviving spouse and owner of the homestead. The executor sold the real property pursuant to the instructions in the will. The sale was confirmed for a net price of approximately $6,700. Costs of administration and other preferred claims (Prob. Code, § 950) were ordered paid, first out of the cash on hand at death, and the balance from the proceeds of the sale of the real property. Without the [500]proceeds of the sale there were insufficient funds with which to pay costs of administration and preferred claims. The balance on hand is sufficient to pay the three general creditors whose claims were approved in the amount of approximately $1,100, to pay the $1,000 specific bequest and to pay approximately $1,000 each to the three residuary legatees. The appellant is one of the three general creditors whose claims will not be paid if the order is affirmed. Appellant’s claim is for hospitalization and drugs furnished the decedent in 1958, but is not an expense of last illness.

The parties are agreed as to the facts but are in disagreement as to the correct statement of the issue. We hold the issue to be: Are the proceeds of a' testamentárily directed sale of a homestead exempt from the payment of claims of general creditors whose claims have been allowed and approved í We hold that the proceeds are not exempt.

Respondent rests his case squarely upon Civil Code, section 1265, and on Estate of Fath (1901), 132 Cal. 609 [64 P. 995] ; Estate of Muntz (1924), 69 Cal.App. 404 [231 P. 371] ; and Estate of Izedorio (1929), 100 Cal.App. 469 [280 P. 171], which construe Civil Code, section 1265.