In re Estate of Herbert

John B. Herbert, an insolvent debtor, applied to the court for an order setting apart a homestead, a declaration of homestead upon the property sought to be set apart having been duly made and recorded prior to the insolvency proceedings. Hpon the hearing, the court found the value of the homestead property, both at the time that the declaration of homestead was filed and at the date of the hearing, to be ten thousand dollars, and that mortgage liens rested upon the property to the extent of five thousand five hundred dollars. Based upon these facts the court made an order setting apart the premises as a homestead. The assignee of the insolvent’s estate now attacks the validity of this order upon the ground that the court had no power to set apart a homestead of the value of ten thousand dollars.

Section 64 of the Insolvent Act of 1890 provides; “It shall be the duty of the court .... to exempt and set apart for the use and benefit of said insolvent such real and personal property as is by law exempt from execution; and also a homestead in the manner as provided in section 1465 of the Code of Civil Procedure.” Section 1465 authorizes the homestead selected, designated, and…