Estate of Simonini

This is an appeal from an order setting apart a probate homestead.

The appellant, as the surviving husband of decedent, petitioned for an order setting apart as a probate homestead certain property alleged by petitioner to be community property of petitioner and decedent. The court found that said property was not community property, but that petitioner and decedent were the owners of said property as tenants in common. It was ordered that the property be set aside to the petitioner as a homestead “for a limited period, to wit: the period of ten (10) years from the date of this order, and that said property so set apart shall belong one-half thereof to said Ottavio Simonini, the surviving husband of said decedent, and one-half thereof to the estate of Antoinetta Simonini, the said decedent, in equal shares”.

Appellant contends that the court erred in setting apart the homestead for a limited period only. He claims that the uncontroverted evidence shows that the property was community property and not separate property and that it should have been set apart to him absolutely. We find no merit in this contention. On the hearing the only testimony offered by petitioner on this…