The record-union., 1897-12-04
ONLY A LIMITED HOMESTEAD
EXECUTORS MUST DISCHARGE
THE MORTGAGE ON 1T.
Oecisdon Rendered Yesterday by
Judge johnson in the Matter
Of the Huelsman Estate.

Judge Johnson yesterday rendered
Judgment in the case of the Huelsman
estate as follows:
In the Superior Court, County OF sac
ramento, State of California In the
matter of the estate of Charles H.
Huelsman, deceased:
The deceased died testate, leaving
wife and three children, all OF Whom
at the time were adults. By the terms
OF his will s. is left to one of the chill
dren, an undivided one-half of certain
tract of land, consisting OF about IJO
acres and where he resided, together
with half Of the personal property on
the farm, was given to the wire, ana
the residue of the estate, consisting OF
another tract of land, certain city prop
erty and considerable personal prop
erty, was given to the two remaining
children / may here remark that these
children are by a. former wife; also
that all of the property was the sep
arate property of the husband.
During the progress Of the proceed
6ngs the widow made application to
have a homestead set apart to her out
of the property of the deceased. An
order was made setting apart as the
homestead the tract of land where they
resided. 1t was intended at the time
that the homestead should be for the
life of the applicant, but by some in
advertance it appears that the order
as entered by the clerk gives the prop
erty to her without limit as home
stead.
The attorney for the executors claims
that the effect of this order is to set
apart the premises to the widow abso-
lutely and that the time for appealing
having passed, that she is entitled to
hold it as such while the claimant her
self contends that she has no such in
terest. that she can only hold it for
life.
1t appears that the decedent at the
time of his death was indebted to one
- SwartZ upon a promissory note
for the sum of one thousand dollars,
and that to secure the same he had
executed a mortgage upon this particu-
lar tract That the time to present
claims has long since expired and that
the creditor did not present any claim
against the executor of the estate for
this note. However, the executors were
aware of it's existence for they report
ed in their first annual account its ex-
istence and that they had paid the
accruing interest thereon, but in their
final account it does not figure as a
claim. However, it has been made to
appear to the court that said mort
gage is unsatisfied, and exists as lien
upon the property in question.
The claimant asks that before the
estate is finally closed that the execu-
tors be required to discharge said lien.
The executors have declined to do SO,
for the reason that the note has not
been presented as a claim against the
estate and they are Inot required to
pay K, and that the property having
been set apart absolutely, as it is al
legged, to the widow that she takes it
subject to all existing liens, that the
estate is not bound to discharge them
because they ceased to be assets of
the estate upon the entry Of the order
sitting apart a homestead.
We must determine what was the
effect of the order setting apart the
homestead.
The order was made pursuant to Sec
tfons 1865 and 146S of the Code of
Civil Procedure. The first provides
tion OF by petition, set apart home
stead to the widow where there are
10 minor children, while the second
section provides that if the homestead
is selected from the separate property
of deceased it can be set apart only
for a limited period of time, and that
the title vest in the heirs subject to
such order. 1t is clear then that the
~ not 1lr<. in Ia.
case setting apart the homestead alb
solutelv to the widow. There being an
absence of apt words in that respect,
the presumption is that she takes it
for limited period, which, in this
case, would be for life. Our Supreme
Court has settled this question in two
or three decisions. Perhaps one that
comes nearest to being on all fours with
this is found in the S5th Cal, 621.
Huchingson VS.. McNally. There the
widow, without the consent of the hus-
band, filed a declaration of homestead
upon his separate property. The court
below made an order setting apart the
same to the widow without any limit
as to tire. Upon her death the plain
tiff, who was the devisee under the
will of the husband. commenced suit
l.
court sustained the contention of plain
tiff and say that the homestead could
not be set apart except for a limited
period Of time. This case is cited with
approval by the court in the case OF
Neary VS.. Godfrey, 102 Cal, 3SS. In
that case in an action for divorce be-
tween the wife of one George Godfrey
and himself a decree was entered Civ
ing him divorce, and setting apart
certain property as a homestead to
him fer ten years, thereafter to go
10 plaintiff from the separate property
of the wife; he married again, and at
the end of three years died. The first
wife commenced an action for the prop
erty Immediately thereafter She re-
covered. the court said that the lower
court could not award this property
for a longer period than life, and if