Estate of McCarthy

Appeal from order setting apart a homestead.

The facts necessary to a decision of the question in this ease are as follows: In November, 1883, Charles Patrick McCarthy duly executed and recorded a declaration of homestead upon the premises described in the petition. At the time of such recording the premises were community property of the said McCarthy and his wife, Ellen, and they resided thereon with their children. The value at that time was $2,000. The premises continued to be the home of McCarthy and his family until his death in January, 1903. In February, 1903, Ellen McCarthy, the widow, was duly appointed administratrix, took the oath, qualified, and ever since has been such administratrix. The estate is insolvent, and certain creditors have proven their claims, which have been duly allowed by the superior court, and are on file. An inventory and appraisement has been duly made and filed, in. which the said premises are appraised at the sum of $5,000. In Juné, 1903, the administratrix, duly filed her petition, praying for an order setting apart the premises to her as the surviving widow of deceased. . This petition was opposed by Mary Burke, a creditor of the estate,…