Estate of Millington

The trial court made an order setting apart to the surviving husband of decedent certain articles as property of the estate exempt from execution. From this order the other beneficiaries under the will have appealed. Appellants contend that the court was without authority so to set apart the following: Two diamond rings of the value of $250; one set of diamond earrings, $200; and one gold watch and chain, $5. The estate of decedent was appraised at $25,513. She left no surviving children. By her will she gave her husband $5,000 and appellants, who are a niece and the letter’s son, all the remainder of the estate.

Section 1465 of the Code of Civil Procedure provides that “the court may on petition therefor, set apart for the use of the surviving husband or wife ... all the property exempt from execution.” The provisions of this section have always been held to be mandatory. Subdivision 2 of section 690 exempts from execution or attachment “necessary household, table, and kitchen furniture belonging to the judgment debtor, including one sewing-machine, stove, stovepipes and furniture, wearing-apparel, beds, bedding and bedsteads, hanging pictures, oil-paintings and drawings drawn…