Smith v. Smith

This is an appeal by certain heirs-at-law of E» O. Smith, deceased, from a probate order setting aside certain premises as a homestead to the respondent, who is the widow of the deceased.

The facts necessary to be stated are these s The said premises consist of an ordinary city lot in the city of San Jose. It has a dwelling-house on it which covers nearly the entire lot | and in this house the deceased and the respondent resided for several years next before the death of the former. The said premises were community property, and there was never any declaration of homestead upon the same made by either of the spouses. The deceased purchased the lot for four thousand five hundred dollars, paying two thousand dollars in cash and giving his note for two thousand five hundred dollars —the deed remaining in escrow, to be delivered upon payment of the note. The note was not paid nor the deed delivered during the lifetime of *450 the deceased; but afterwards the respondent procured a third person to take an assignment of the note, and thereupon the deed was delivered and recorded, said third person now holding the note. There are no minor heirs of the deceased. The premises are now of…