121 Cal. 92 | Cal. | 1898
Robert 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 homestead 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
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
Under sections 158 and 159 of the Civil Code, Winslow and wife 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 respondent contends that the said contract between herself and her husband constituted no abandonment of the homestead within this requirement of the 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 of 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 ascertainable 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 therefrom, 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 complete 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 extremely 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 of thé court to assign as a homestead under section
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 unnecessary 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 agreement 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 not 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.