In re Estate of Leahy

The application to set apart 'a homestead in this proceeding is based on section 1465 of the Code of Civil Procedure of this state, which provides, among other things, as follows: “If none [referring to a homestead] has been selected, designated and recorded .... the court must select, designate and set apart, and cause to be recorded, a homestead for the use of the surviving husband or wife and the minor children, out of the common property,” etc.

The petition filed herein alleges that the real estate described therein is the community property of the widow and her deceased husband; that it was purchased on the seventeenth day of May, 1888; that no homestead was recorded during the lifetime of the deceased, and that there is one minor child.

The answer filed to the petition of the applicant admits all the facts except that the property is the community property of the applicant and her deceased husband, but alleges that it was purchased in part with the earnings and dividends of the separate estate of the deceased, and that thirty shares of stock, separate property, were hypothecated as part of the purchase price.

It is admitted that the piece of property is appraised at…