In re Estate of Winslow
53 P. 362
Cal.
1898
Check Treatment
BRITT, C.

Rоbert B. Winslow and his wife Emily resided on a lot of land, which was community property, in the city of Sacramento; in the year 1890 the wife declared a homеstead on the land in manner conformable to the statute. - On May 28., 1895, said married parties jointly executed a written instrument reciting that differences had arisen between them, that *93they desired to adjust the same and also their property rights without resort to the courts, and that they had agreed upon a division of their property, particularly described, in accordance with the provisions of such instrument; the property described includеd the said lot of land, which was referred to as the residence of the parties, and was the only real estate mentioned; it was then declаred in said instrument that the said property “is hereby equally divided between the parties; and inasmuch as the said real estate is incapable оf partition, it is further agreed that the whole of the aforesaid property, both real and personal, is of the value of four thousand seven hundred dollars,” and in consideration of the premises and of the sum of two thousand three hundred and fifty dollars, one-half the said value, to her paid, thе wife renounced and relinquished all claims of every kind against the husband, and granted and conveyed to him all her right, title, and interest in and to ‍‌‌​​‌‌‌​‌‌​‌​​​​‌​​​‌​​‌‌​‌​‌​‌​‌​‌​‌‌​‌​​​‌‌​​‌‍all the said рroperty, and released him from all obligation for alimony, etc., and agreed never to make any claim on him in any manner whatsoever; and the husband on his part released the wife from all claims he might have or assert against her; it was further agreed that “henceforth the parties shаll live separate and apart from each other, it being understood that this agreement is and shall operate as a complete settlement and adjustment of all their property rights and relations and affairs.” Said instrument was duly acknowledged by both parties and recorded in the office where the previous declaration of homestead was recorded. Said Emily further executed to said Robert a formal deed of grant purporting to convey to him the said lot of land “as and for his sole and separate property,” which was recorded in the same office. He paid to his wife the sum of two thousand three hundred and fifty dollars, mentioned in their contract, mortgaging the land to raise a portion therеof.

The parties separated; and in January, 1896, the husband died, leaving no children. In course of administration of his estate, his widow, the said Emily, petitioned the superior court to set over the said land to her, claiming that the homestead thereon was never abandoned, and that she was entitled to the same as survivor of the marital community. It was valued at three thousand two hundred dollars. Her petition was con*94tested by the mother of the deceased; the court, however, ‍‌‌​​‌‌‌​‌‌​‌​​​​‌​​​‌​​‌‌​‌​‌​‌​‌​‌​‌‌​‌​​​‌‌​​‌‍granted the same, and the contestant has appealéd.

Under sections 158 and 159 of the Civil Code, Winslow and wifе had contractual power to deal between themselves with the homestead as property in any manner not forbidden by law; but it is provided in sections 1243 and 1244 of the same code that a homestead of a married claimant can be abandoned only by a declaration of abandonment, or a grant thereof, executed and acknowledged by both husband and wife, and recorded in the proper office; and resрondent contends that the said contract between herself and her husband constituted no abandonment of the homestead within this requirement of thе statute. It is urged that admitting the language of the instrument to be expressivé of the purpose of the wife to abandon her rights of homestead in the land, yet the husband did not abandon, and hence, under the statute, the abandonment by the wife alone was ineffectual.

The law has prescribed no form оf words for the abandonment of g homestead, and the meaning of the said instrument of Hay 28, 1895, is to be determined by the samé rules which control the interpretation of other contracts; among those rules are that the mutual intention of the parties will be given effect so far as the same is lawful and аscertainable from the language employed and the attendant circumstances; that each clause of the contract is to be looked to for light in interpreting the others; and that those things which are necessary to give the contract effect are implied therefrоm, unless its terms repel the implication. Now, throughout the instrument before us the manifest paramount object of the contract is a division ‍‌‌​​‌‌‌​‌‌​‌​​​​‌​​​‌​​‌‌​‌​‌​‌​‌​‌​‌‌​‌​​​‌‌​​‌‍of property, to be final and complete; the parties covenanted that the agreement should operate “as a completе settlement and adjustment of all their property rights and relations and affairs.” If the homestead right persisted notwithstanding the contract, then, instead of evidencing a complete settlement of rights in the property described and a division thereof, the instrument effected an adjustment extremеly imperfect and incomplete, even during the joint lives of the parties; for in that case neither party could convey or encumber the property without the concurrence of the other, and in case of an action for divorce it would still have been within the power оf thé court to assign as a homestead under section *95146 of the Civil Code. It is clear that the parties meant to deal with the unfettered fee in the land, not a mere life estate of either party. The hоmestead of married persons in this state has been so often likened to an estate in joint tenancy that we need not cite the cases which note the resemblance; what would be thought of a contract between joint tenants, in terms designed to effect a division, completе and final, of the property held by them, which should yet leave intact the right of survivorship? Certainly, all intendments would be indulged against that construction. We hold, therefore, that the contract between Winslow and wife—the same having been acknowledged by both and duly recorded—was an abandonment of the homestead by both spouses; such abandonment follows from the provisions of the instrument, for they cannot have their natural and obviously intended effect without it.

Respondent has cited several cases claimed ‍‌‌​​‌‌‌​‌‌​‌​​​​‌​​​‌​​‌‌​‌​‌​‌​‌​‌​‌‌​‌​​​‌‌​​‌‍to be illustrative of the one at bar. (Burkett v. Burkett, 78 Cal. 310; 12 Am. St. Rep. 58; Oaks v. Oaks, 94 Cal. 66; In re Lamb, 95 Cal. 397, and others.) It seems unnecеssary to review those cases; our conclusion in no wise conflicts with them. In re Davis, 106 Cal. 453, has some similarity to the present case; there an agreemеnt much like that of Winslow and wife—though apparently not involving a homestead—was enforced according to its terms; the court said that the ‍‌‌​​‌‌‌​‌‌​‌​​​​‌​​​‌​​‌‌​‌​‌​‌​‌​‌​‌‌​‌​​​‌‌​​‌‍obvious purpose thereof was “not only to definitely sever the property rights of the parties, but mutually to relinquish all inheritable interest of each in the property and estate of the other.”

The point that the homestead was not abandoned because the contract in question did nоt expressly refer to the property as a homestead is not well taken. (See Head v. Auberry (Ky., Jan. 23, 1897), 38 S. W. Rep. 863; Withers v. Pugh, 91 Ky. 522.) The order appealed from should be reversed.

Searls, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the order appealed from is reversed.

McFarland, J., Temple, J., Henshaw, J.