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on by respondents were made under statutory provisions materially different from those now in force.

The judgment and order of the court below are reversed, with instructions to set aside the homestead to petitioner as prayed for in her petition.

McKINSTRY, J., SHARPSTEIN, J., and PATERSON, J., concurred.

SEARLS, C. J., dissented.

THORNTON, J., dissenting.-! dissent. In the lifetime of Horace Burdick, deceased, and during his intermarriage with the petitioner, Kate Burdick, he selected as a homestead the parcel of land involved herein. A proper declaration of homestead as to the parcel of land was duly made and filed by the decedent on the seventh day of October, 1870. At the time of making and filing this declaration, the decedent, with his family, consisting of his wife, above mentioned, and his minor children, resided on the premises. The parcel of land so selected as a homestead was at the time of such selection community property.

The decedent died on the 7th of May, 1887, and on the sixteenth day of June, in the same year, letters of administration on the estate of decedent were issued to Frederick Eaton.

On the 6th of October, 1887, Kate Burdick, widow of deceased, filed in the superior court a petition asking that the premises above mentioned be set apart to her.

On the filing of this petition, the court made an order appointing appraisers of the estate of decedent, and by said order directed that if the homestead premises above mentioned be returned in the inventory appraised at more than five thousand dollars, the appraisers, before they make their return, ascertain and appraise the value of said homestead, at the time it was selected, on the 7th of October, 1870, etc.

On the 29th of October, 1887, the appraisers filed an inventory, in which the said premises were appraised at the sum of forty-five thousand dollars, and reported the appraised value of the same at the time of the selection as a homestead at the sum of four thousand dollars.

The court below denied the petition of the widow, who reserved an exception to the ruling of the court, and brings the case to this court on appeal.

Whether the estate of decedent is indebted does not appear. But it is so rare that persons die without being indebted that we may properly assume in our reasoning on the question presented that there are creditors of the estate whose claims are to be paid.

It is pertinent here to remark that the inventory and appraisement, which are inserted in the bill of

exceptions, make the whole estate $51,096.18, and this on a request that the court declare that property amounting to $45,000 be withdrawn from the payment of the claims of creditors.

Of such a proposition it may be justly said that the law must be very clear which would justify a court in coming to such a conclusion. It would be a most extraordinary exemption law which would require such a thing to be done.

It would be almost as extraordinary to withdraw from the participation of the heirs, even to the extent allowed of the homestead of the value of five thousand dollars, so large a portion of the estate as is here required.

While the constitution allows, and in fact enjoins, legislation to protect from forced sale a certain portion of the homestead, it certainly was not intended to authorize an exemption so unreasonable as to include four fifths of the property of an estate.

“The homestead [we give here the definition of the Civil Code] consists of the dwelling-house in which the claimant resides, and the land on which the same is situated, selected as in this title provided.” (Civ. Code, sec. 1237.)

The mode of selection is pointed out in sections 1262 and 1263 of the Civil Code. The declaration required by section 1262 must contain "an estimate of” the “actual cash value” of the premises. Now, while it is not declared in the foregoing sections that the homestead shall not exceed five thousand dollars in value, still, it is evident that the law was passed in pursuance of the provision of the constitution above quoted, and that it was intended as a law of exemption from forced sale to an amount to be fixed by the legislature. The amount of exemption is fixed in section 1260, in the case of any head of a family who is married, at five thousand dollars. This sum cannot be exceeded. This, then, in the case of a married head of a family, is the home stead spoken of in all the laws on the subject; that is, the residence of the family, not exceeding in value the aforementioned sum of five thousand dollars.

We think the above is the homestead spoken of in section 1265 of the Civil Code, and in the various sections of the Code of Civil Procedure. It is clear from the last clause in section 1265, that the excess above five thousand dollars is in all cases subject to the debts of the deceased.

Now, it is said that where the premises when selected are less in value than five thousand dollars, that no provision is made by law, on the death of the husband or wife, for cutting down or limiting the homestead to that sum, and section 1476 is cited to that effect. This seems to be correct of that section, and from this it is argued that, as no provision is made for thus limiting the homestead in the case just mentioned, therefore the whole property used as a homestead during the life of one of the spouses passes to the survivor, although at the time of such death it may be of a value greatly exceeding five thousand dollars. Section 1476 clearly provides for the case of limiting the homestead on the decease of one of the spouses to five thousand dollars in value, where the

premises at the date of their selection exceeded five thousand dollars.

The construction urged leads to this re sult: That when one of the spouses departs this life, and the homestead at the date of its selection was of a value exceeding five thousand dollars, it may be cut down to five thousand dollars; but where it was at the date of its selection of a value less than five thousand dollars, it cannot be limited or cut down, but passes to the survivor of the married pair, irrespective of value.

In the case last supposed, the survivor must have the homestead, though it be of a value exceeding one hundred thousand dollars, and constitute the entire estate, thus leaving the creditors unpaid, and depriving the heirs of all share in the estate of their ancestor. Such a result savors of a solecism.

If there is no method provided by statute for cutting down and limiting the homestead to five thousand dollars in the case such as is presented herein, we think that the superior court, under section 187 of the Code of Civil Procedure, may adopt a method. We think the court below has the power and jurisdiction to limit the homestead as above; and, having such power and jurisdiction, it is vested by section 187 of the Code of Civil Procedure with all necessary and appropriate means to carry out and execute such power. Such is the doctrine laid down in Mawson v. Mawson, 50 Cal. 539, which is applicable herein.

I think the order should be afirmed

[No. 12432. In Bank.—June 21, 1888.) G. N. FURNISH, APPELLANT, V. JOHN MULLAN ET

AL., RESPONDENTS.

SUMMONS-AFFIDAVIT FOR PUBLICATION.-An affidavit for publication of

summons which shows that the person on whom the service is to be made resides out of the state is sufficient under section 412 of the Code of Civil Procedure, and it is not necessary that it should show acts constituting due diligence. Any statement in regard to diligence in such affidavit is immaterial.

APPEAL from an order of the Superior Court of the county of Tulare refusing to set aside a judgment rendered upon service of summons by publication.

The judgment was rendered April 4, 1885. The motion to set aside the judgment was made September 30, 1887, upon the ground that the court never acquired jurisdiction of the defendant, for the reasons specified in the opinion of the court.

Frederick S. Stratton, for Appellant.

Charles E. Lamberson, for Respondents.

summons

PATERSON, J.—The affidavit upon which the order of publication of

was made states that "said defendant John Mullan is a proper and necessary party to the action; .. .. that the person on whom the service is to be made formerly resided at the city and county of San Francisco, in this state, but has departed from the state, and now resides in the city of Washington, District of Columbia." The order for publication of summons states: "And it further appearing that the residence of said defendant John Mullan is at the city of Washington, in the District of Columbia, it is ordered and directed that a copy of the summons and complaint in this suit be forthwith deposited in the United States post-office, postpaid, directed to said defendant at his said place of residence."

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