This is an appeal from an order setting apart to George W. Lamb, the surviving husband of deceased, upon his petition therefor,, a homestead upon 160 acres of land described therein. The appeal is taken by the father of deceased. The facts, as disclosed by the record, are these: The petitioner and deceased were married September 15, 1884. Prior to this time-the petitioner had filed in the proper United States- land-office his application to enter the land in controversy as a homestead, under the laws of the United States, and had resided thereon for four years, and one year after such
The petitioner further testified, in reference to the agreement for a separation and division of the property, that it was subsequently understood between them that it was to be of no effect; “ we did not count that instrument worth anything; w.e never ..calculated to have it recorded.”
1. The claim of respondent is, that the decree of the court is justified by section 1474 of the Code of Civil Procedure. That section, so far as material to the question under consideration, is as follows: “If the homestead selected by the husband and wife, or either of them, during their coverture, and recorded while both were living, was selected from the community property, or from the separate property of the person selecting or joining in the selection of the same, it vests on the death of the husband or wife absolutely in the survivor. If the homestead was selected from the separate property of either the husband or the wife, without his or her consent, it vests, on the death of the person from whose property it was selected, in his or her heirs, subject to the power of the superior court to assign it for a limited period to the family of the decedent.”
It will be observed that in order to bring a homestead within the provisions of this section, so that upon the death of one of the spouses it “ vests absolutely in the survivor,” it must be made to appear that it was selected from the community property in the first instance, “or from the separate property of the person selecting or joining in the selection of the same,” and we are of opinion that upon the facts as above stated the homestead in this case did not vest absolutely in the petitioner upon the death of his wife.
The land in controversy was not community property at the date when the deceased made and recorded her declaration claiming the same as a homestead, but it was the separate property of the petitioner. The petitioner had, before his marriage, made application to enter the land as a homestead under the laws of the United States; and although he had not, at the time of such marriage, fully completed the term for which he was to reside upon and cultivate it, so as to entitle him to receive
This was in effect so held by this court in the case of' Harris v. Harris, 71 Cal. 314. In that case, it appears that the defendant, while a widow and in the occupation of certain land, filed in the United States land-office a declaratory statement of her intention to pre-empt the same. She afterwards married the plaintiff in that action, and thereafter they both jointly occupied and farmed the premises until she made final proof of her pre-emption claim in the new name, she had acquired by the marriage, and was allowed to make a final entry of the same. The court held that the property was the separate property of the wife, no matter whether the same was paid for with community funds or with money borrowed upon her own credit, and on this point the court, in its opinion by McKinstry, J., said: “ In this action for divorce, the plaintiff claims a moiety of the land patented to the defendant, on the ground that the money paid for the government title belonged to the community: 1. Even if it appeared that the money was paid out of community funds, the land would be the separate property of the wife. With full knowledge and consent of the plaintiff, the land was proved up and paid for in her name, and the proof of her occupation and ‘declaration ’ or affidavit was as necessary a prerequisite to the acquisition of the government title as was the payment of the price. The patent is a record which proves the facts which preceded its issue, on proof of which the proper officers of the United States were authorized
What was there said with reference to the effect of the prior settlement and declaration of the pre-emption claimant, as the basis of his right to obtain the subsequent title, applies with equal force to this case; and with much greater reason can it be said that the subsequent acquisition of the legal title was not one of purchase, made with Community funds, as the title thus received was more in the nature of a gift from the government, because of the performance by petitioner of the conditions prescribed by the homestead laws in relation to residence upon and cultivation of the land. The fact that during a small portion of the time he was thus required to reside upon it the deceased was also living there with him as his wife would not deprive him of the equitable right which he had acquired to such land before marriage by reason of his previous entry and settlement, and convert it into community property. The cases of Lake v. Lake, 52 Cal. 428, and Barbet v. Langlois, 5 La. Ann. 212, also sustain this conclusion.
2. The homestead selected by the deceased under the laws of this state was not abandoned by the subsequent agreement between petitioner and deceased for its division between them. This agreement was not recorded by either of the parties, and if it should be conceded that it was otherwise sufficient as a declaration of abandonment, the failure to record it rendered it ineffectual •for that purpose. (Civ. Code, sec. 1244.) The deed of
This being so, it only remains to consider the nature of this homestead, so far as it affects the fifty acres of which the deceased was the owner. Can it be said, in view of the facts as we have stated them, that this homestead was selected by her from her separate property, within the meaning of section 1474 of the Code of Civil Procedure? It is clear to us that this question must be answered in the negative. It is true, the declaration of homestead was made and recorded by her, but this was at a time when all of the land in controversy was the separate property of her husband, the petitioner, and the subsequent acquisition by her of the title to fifty acres thereof as her separate property did not have the effect to change the prior declaration into a selection by her of a homestead from her separate property. When the statute speaks of the
It follows from these views, that the court erred in setting apart to petitioner absolutely, and as his property, the fifty acres which he conveyed to his wife in her lifetime. Such property is to be treated as if the homestead thereon had been selected without her consent, and as vesting in her heirs, “subject to the power of the superior court to assign it, for a limited period, to the family of the deceased.” (Code Civ. Proc., sec. 1474.)
The deceased left no children, and it is not shown that the father made his home with her, and that his circumstances were such that she was, at the time of her death, under any moral or legal duty to support him. This being so, the petitioner himself may be regarded as constituting the family of deceased, within the meaning of section 1474 of the Code of Civil Procedure. It is true that the word “family,” in its ordinary signification, refers to two or more persons, and as used in the section just referred to, will include those living under the same roof as kindred or dependents, and under one head, thus constituting a family, as that term is generally understood; but this word, as used in the statute concerning probate homesteads/ is not to be so restricted in its meaning as
Upon the evidence, the petitioner was entitled to a decree setting apart to him as his own property the 110 acres referred to, and it was within the discretion of the court to assign to him, for such limited period as it might deem proper, the 50 acres of which deceased was the owner. The right to the order assigning to him for a limited period this fifty acres is not absolute, but rests in the sound discretion of the court, to be exercised in view of all the facts appearing before it.
4. In the bill of exceptions, as originally settled, there was no specification of the particulars in which it was claimed that the findings and decree of the court are not sustained by the evidence. After the appeal herein was taken, the judge of the superior court allowed the bill of exceptions to be amended by inserting such specifications. This action of the judge was proper in this case, as the appeal here' is from a decision which was made before the bill of exceptions was settled, and the effect of the amendment is simply to enable this court to review the decision of the lower court, in view of all the facts which that court had before it when it made such decision. (Hayne on New Trial and Appeal, sec. 160; Valentine v. Stewart, 15 Cal. 396; Loucks v. Edmondson, 18 Cal. 204.)
The order appealed from is reversed.
McFarland, J., and Sharpstein, J., concurred.