
    ESTATE OF HENRY RECK.
    No. 4706
    Dec. 22, 1873.
    Homestead.—Property used for other purposes included in declaration, CANNOT BE SET APART BY DECREE.
    Where the lot described in homestead declaration is not entirely devoted to family residence, but a portion is covered by a dwelling rented to other parties, the decree can be granted only for part used for actual residence.
    Commissions of Executor not allowed on Homestead.—The homestead cannot be included in the estimate of estate’s value as a basis for commissions.
    Construing sections, C. C., 1263; O. C. P., 1618,
    
      George & Loughborough, for executors.
    
      F. G. Newlands, for widow.
   Testator left a widow. In his life time there was a declaration of homestead covering three dwellings and the land on which they are situated. The houses were joined together, but were occupied separately by families. Deceased and his family occupied one of the houses and tenants occupied the cithers. The yard in the rear of the houses was not divided by fences; there was a well in the yard which was used in common. The widow petitions that the whole be set apart as a homestead, which petition the executors resist.

The Court made a decree setting apart one of the houses, with a strip of land of the width of the house from front to rear, with the right of way to and from the well and the use of the well in common.

May 15, 1874.

The executors claim commissions on the value of the homestead set apart.

Held : The executors are not entitled to commissions on the value of the property set apart. On the death of the husband the title vested absolutely in the wife, and the action of the Probate Court was only for the purpose of ascertaining whether there was a homestead right, and to what it attached. When the premises were set apart by the Court, that action related back to the death, and the widow held the premises relieved of all burdens by reason of administration.

The executors claim that though they may not have commissions out of the homestead property, yet they should be paid out of the remainder of the estate.

Held : This must also be denied. Where there is a declaration before death, the property set apart under that declaration forms no basis for computation of commissions; it never formed any part of the estate of the deceased as a decedent.  