The record-union., 1891-02-08

without expressing my dissent from the
conclusion of the department upon the
point principally considered in the opin-
ion of Justice Thornton.
If the decision of the court had been
rested upon the proposition that under
the homestead laws of California Mrs.
Baker, on the death Of her husband, be-
came by right of survirorship the sole
and exclusive owner, as against her
children, of the entire estate in the lands
covered by their joint declaration of
omestead-irrespectiv of its value at
the time of such declaration or of her hus-
bands death-I might not have dissented
from that view.
But the Judgment and order of the SUI
perior Court are reversed and the cause
is remanded for new trial to be had in
accordance with the views expressed in
the opinion which thereby become, and
must remain, the law of the case.
Amongst the views so expressed is one
from which feel constrained to express
my dissent.
1t is held-as understand the opinion
that Mrs. Baker, by mere force of the
Act of Congress of 1866, granting tie the
city,of San Francisco the outside lands,
and independent of any right accruing to
her under our homestead laws, became
entitled to conveyance from the city of
all the lands left in her possession by the
death of her husband to be held by her in
her own right to the exclusion of her
children. This conclusion is based upon
g narrow and literal construction of the
clause of the Act requiring the city to
convey the lands granted to the parties in
BONA .tfde actual possession thereof by
themselves or tenants at the date of the
passage OF the Act. 1t assumes either
that the person lawfully in possession by
himself or tenant at the date of the pas
sage of the Act was the sole object OF the
bounty OF the Government, without re-
gard TO the character or capacity III which
he had obtained or held the possession, or
it assumes that when John II. Baker died
in 1863, leaving his widow and minor
children in possession of the land i'll con-
tfoversy, he had no estate in the land to
which they could succeed and that the
possession so devolveG upon her as head
of the family was held by her absolutely
| III her own right, and not in any repre-
sentative capacity.
If this is true-if the children of John
II. Baker inherited no interest in this
land from him when he died-it must be
equally true that if their mother also had
died before the passage of the Act of
/ 1866, they would have Inherited nothing
from her. What then would have hap
pened? Icing minors aud orphans, they
and the land would naturally have passed
into the charge and custody Ola guardian
vino would have been found in the bona
.t5t,e actual possession Of the land, as head
of the family, at the passage Of the Act of
1856. Such guardian would have been
just as clearly within the literal terms of
the Act in the case supposed, as Mrs.
Baker actually was in the case as it is:
and II the representative character in
which she held the possession, and her
trast relation TO her children must be ig-
nored, so must the representative charac-
ter and trust relation of the guardian
have been ignored; and on precisely the
same reasoning which sustains the ex-
elusive right OF Mrs. Baker to receive q
conveyance OF the land, it must have
been held that the guardian was entitled
to conveyance of the land to the eXclu-
SION of his wards. But venture to say
that no court would have carried the
! principle here decided to this, its logical
and necessary consequence. IN my
/ opinionit would have been held in the
case supposed that it was the duty of the
guardian to obtain a conveyance of the
lands from the city, and that he would
.lold them when SO conveyed in trust for
fiS wards, according to their several and
respective rights as heirs and successors
Of their deceased parents. And, upon
the same grounds, am of the opinion
that Mrs. Baker, wbeptl she, obtained, a
conveyance of these lands considering
the matter without reference to her rights
under the homestead law held them in
trust for her children according to their
respective rights as heirs of her deceased
husband. BEATTY, G. j.