Robinson

This is an appeal from an order made after final judgment, and arises upon the following facts: Edward Dougherty, the defendant, was the head of’ a family consisting of himself and his wife. While thus the head of a family he declared a homestead upon community property. This homestead continued, and upon the death of his wife in 1893 it vested in him. (Civ. Code, sec. 1265; Code Civ. Proc., sec. 1474.) Defendant upon the death of his wife was left a childless widower. Plaintiff and appellant is a judgment creditor of respondent, the judgment being a personal judgment for a deficiency remaining after sale of mortgaged premises. The debt was contracted by the husband after the declaration of homestead, and the mortgage did not affect the homestead property. Appellant, by proceedings had under title Y, chapter I, of the Civil Code, asked for an appraisement of the homestead, and sought to subject, the excess in value of the homestead over one thousand dollars to the payment of her judgment, upon the theory that the husband by the death of his wife, leaving him childless, ceased to be the head of a family, and that, while the homestead propert}!- vested in him, the exemption to such…