In re Estate of Kimberly

32 P. 234, 97 Cal. 281, 1893 Cal. LEXIS 531

Opinion

De Haven, J.

Appeal from an order refusing to set aside a homestead for the widow and minor children of deceased out of property claimed to belong to the estate of the deceased, and inventoried as such.

In refusing to set aside a homestead for the widow and minor children of deceased, the court erred. The question of the validity of the adverse title claimed by the contestants to an undivided interest in the property sought to be set apart as a homestead is one not proper to be litigated in this proceeding. (In re Groome, 94 Cal. 69; Estate of Burton, 63 Cal. 36.) Whether the contestants acquired, by virtue of the foreclosure proceedings referred to in the findings of the court, any interest in the land described in the petition for homestead must be determined in some appropriate action brought for the purpose of settling that question. The question is not involved here, and we express no opinion in relation to it.

Order reversed.

Fitzgerald, J., and McFarland, J., concurred.