122 Cal. 111 | Cal. | 1898
The plaintiff seeks by this action to quiet his title to an undivided half of a certain tract of land against the claim of the defendant. Judgment was rendered in his favor, and the defendant has appealed therefrom and from an order denying a ne,w trial. The land in question is a part of the Mil-pitas rancho, and was conveyed in 1855 and 1856 to Michael Hughes, the father of the defendant and husband of Ellen
As the surviving widow took her share of the community property by “succession” from her husband (Estate of Burdick, 112 Cal. 387), whatever right she may have in the estate of which he died seised is to be ascertained by the same means as is the right of any claimant to his estate, whether by succession or by will. Upon an application for the distribution of an estate, the entire world is notified to be present at the hearing, and to make known their claims, if any they have, to the estate of the decedent or any portion thereof, and the decree of distribution becomes a judicial determination of their claim, which, unless reversed, set aside, or modified upon appeal, is conclusive of their rights, the same as is a final judgment in any other action or proceeding. By giving the notice in the manner prescribed by the statute, the court acquires jurisdiction over all persons entitled to assert any claim to the estate, and, whether they appear and present their claim for adjudication, or fail to appear and suffer default, the judgment is 'conclusive upon them. The decrée of distribution becomes the measure of the rights of all claimants to the es
The community character of the property was not changed by reason of the decree in the suit in partition brought after its purchase by the husband, wherein the land in question was allotted to Michael Hughes and Ellen Hughes jointly. That judgment conferred no new or additional title, but merely ascertained and allotted to the parties to the suit their respective interests in the land. (Wade v. Deray, 50 Cal. 376; McBrown v. Dalton, 70 Cal. 89.)
August 31, 1874, while Michael and his wife Ellen were residing upon the land, she filed in the recorder’s office a declaration of homestead thereon, in which she stated that she was married to and the wife of Michael Hughes, and at the time of making the declaration resided with her family upon the land (describing it), and also stated its cash value, and that she selected and claimed the same as a homestead. Section 1263 of the Civil Code, which was in force at that time, declares that when the declaration of homestead is made by the wife it must contain a statement “showing that her husband has not made such declaration, and that she therefore makes the declaration for their joint benefit.” The declaration of Mrs. Hughes did not contain this statement, and it was therefore ineffective to impress
The judgment and order are affirmed.
Garoutte, J., and Van. Fleet, J., concurred.
Hearing in Bank denied.