Estate of Hale

We believe that appellant's petition that a homestead be selected and set apart for her use, that the exempt personal property be set aside for her use and that she be granted an allowance for her support should have been acted upon favorably. Appellant is the widow of the decedent whose estate is being administered. An inventory of the estate had been returned, fixing the value of the exempt property as $166.50, and of the property sought as a homestead as $1750. The property which appellant wants awarded to her as a homestead is fit for such a purpose, for it was formerly the residence of herself and the decedent. Whether or not, on such a showing, a petition to have the three orders made as sought should be granted is not a matter of discretion with the court, but is a mandate of the statute. (Secs. 1465 and 1466, Code Civ. Proc. [now sections 660, 680, Probate Code]; Estate of Ballentine, (1873) 45 Cal. 693 ; In re Lux, (1893) 100 Cal. 593 [35 Pac. 341]; Estate of Barkley, (1928) 91 Cal. App. 388 [ 267 Pac. 148 ], and cases cited.)

Respondents resisted the petition, and now defend its denial, on the fact that for some time previous to the death of her husband appellant was…