This is an appeal by the Bank of Woodland, a creditor of the above-named estate, from an order setting apart a probate homestead to the widow and minor children. No person other than said appellant objects to the order. A great deal of immaterial matter is contained in the transcript and discussed in the briefs. There are really only two questions involved: 1. Had the court authority to set apart a homestead of greater value than five thousand dollars? and 2. Did the court abuse its discretion in making the order appealed from?
1. The value of the homestead, as found by the court, was eleven thousand one hundred and thirty-nine dollars and seventy cents, and appellant contends that the order was invalid *Page 386 because the premises set apart were of greater value than five thousand dollars; but this contention cannot be maintained. It has been definitely settled that a court may create a probate homestead exceeding five thousand dollars in value. (In reWalkerly, 81 Cal. 579; In re Schmidt, 94 Cal. 334; In re Smith,99 Cal. 449.)
2. Considering all the facts in the case, which need not here be given in detail, there is no ground for holding that the court abused its discretion in making the order appealed from. The decedent, D.Q. Adams, died in 1890, leaving an estate of the appraised value of about two hundred thousand dollars, and an indebtedness of about ninety thousand dollars. For some years after his death there was no doubt about the solvency of his estate. The property of the estate consisted mainly of land in Yolo and Fresno counties. There was one tract of land in Yolo county of three thousand nine hundred acres, on which was the family residence, and the homestead set apart by the court is on this tract and consists of two hundred and fifteen acres of arable land, on which were situated the dwelling-house, barn, outhouses, etc., together with about eighty-five acres adjoining, which consisted of gravelly creek bottom of very little, if any, value. The widow had four minor children to support; she had no means of her own; the homestead was set apart to her only for her life; and we think that the property thus set apart was no more than was reasonably sufficient for her own support and the maintenance and education of the four minor children. If the homestead had been applied for soon after the death of the decedent no plausible objection could have been offered; but, between that time and the date of the application, which was six years afterward, the business of farming became unprofitable, and the value of the lands greatly depreciated, so that when the order was made it was, at least, doubtful if the assets of the estate would be sufficient to pay all of appellant's demands which remained unsatisfied. Appellant was a large creditor of the estate, and a great part of the indebtedness of the estate to it was secured by mortgages which were foreclosed, the appellant being the purchaser at the foreclosure sales. The appellant complains that the court did not make a *Page 387 sufficiently definite finding as to the insolvency of the estate at the time of the homestead order — the finding being that the remaining property, which is described, "if sold at public auction under the order of this court would not pay in full the outstanding indebtedness of said estate and the charges and expenses of administration." If findings were necessary, and the question had arisen in a case where insolvency was a material ad vital issue, the finding might well be assailed for want of directness. The insolvency of an estate does not prevent a court from setting a part a probate homestead. Section 1465 of the Code of Civil Procedure, which deals with the subject, is part of a chapter devoted exclusively to "the provision for the support of the family and of the homestead," and provides that where no statutory homestead has been selected the court "must" set apart a homestead "for the use of the surviving husband or wife, and the minor children," and contains no limitation founded upon the insolvency of the estate. In Phelan v. Smith, 100 Cal. 165, this court said that among the objects of administration are: "1. To support the family for a period; 2. To set apart a homestead to the family," and that "setting apart a homestead is a part of the probate proceeding as much as is a family allowance"; and in Keysv. Cyrus, 100 Cal. 326, the court, speaking of section 1465, said: "The manifest object of this section is the support of the family, and to make provision for their support and maintenance. These demands of the family are deemed superior to those of heirs or creditors. Setting apart a homestead is a part of the probate proceedings as much as is a family allowance; `it is a right bestowed by the beneficence of the law of this state for the benefit of the family.' (Estate of Moore, 57 Cal. 442.) A homestead may be set apart to the widow even though the estate be insolvent and the property so set apart constitute the entire estate of the decedent." The question of solvency or insolvency is therefore immaterial, except only as it may go to the information of the court touching the condition of the estate; and the finding in question shows that the court was sufficiently informed on that subject.
The answer of the appellant to the petition for the homestead is quite lengthy, and contains some fourteen different paragraphs; and one of the main contentions of appellant is *Page 388 that the court did not find on all the issues claimed to have been raised by the answer. It has never been definitely determined by this court that findings are necessary on the decision of a motion for a probate order like the one here in question, and the intimations have rather been that they are not necessary (In re Arguello, 85 Cal. 152; Miller v. Lux, 100 Cal. 613; In re Sanderson, 74 Cal. 261); but, waiving that question, it is sufficient to say that the issues claimed to have been made by the answer, to which it is contended there are no findings, are of matters entirely immaterial to the determination of the petition for the homestead.
The finding of the value of the premises set apart for the homestead is fully supported by the evidence, for the opinion of certain witnesses as to value was to be considered in connection with certain facts which appeared in the testimony; and, at best, the value claimed by appellant to have been shown was only a few hundred dollars greater than that found by the court. We see no other material matters necessary to be specially noticed. The case was first tried and judgment entered setting apart the homestead, and afterward a new trial was granted on the one issue of the value of the premises, and a similar judgment was then again entered; and appellant appeals from both judgments, and from the order granting a new trial on the ground that it should have embraced all the issues. What we have said applies to all these appeals.
The judgments and orders appealed from are affirmed.