The record-union., 1897-10-23


out jurisdiction, and, hence, would be
valid as against a collateral attack.
Indeed the record of the probate pro-
ceedings does not disclose the fact that
there ever was a declaration of home
stead. and, therefore, upon the face Of
the record, the Superior Court had jur-
| isdiction. 1t follows that if the ad-
ministrator, having failed to disclose
his interest in the property under the
declaration of homestead, had appealed
to this court, upon the record of the
case, assuming that all other proceed
ings were sufficient, the Jurisdiction of
| that court must have been affirmed;
and, if SO, he could not now question
it," Uons VS.. HARRISON, 112 Cal. 267.)
I frankly confess that / am unable
to reconcile the foregoing language
with the doctrine previously announced
by the same court. Morrison, C. J., in
passing upon the rights of a husband
to homestead which had been selected
in the life time of the parties, from
| community property. thus states the
rule: The fact that the Probate Court
| after the death of the wife set The
property apart as a homestead for the
benefit of the surviving husband and
| children does not affect the question
before u.s.
The Probate Court in setting apart
property which has been dedicated as a
| homestead, under the Homestead Act
does not change nor transmit the title,
nor does 1t adjudicate the title as be-
tween the parties who assert the
claim to it. The purpose and effect of
the order is merely that the property
be relieved from administration. The
question of title, as between the claim
ants, is to be determined in another
forum. (Rich VS.. Tubbs, Il Cal, 34)
'The law fixes therights of parties and
the title by which the property is held,
and when the statute declares that the
| title shall vest absolutely in the sur
vivor, no order of the Probate Court
could make it the joint property of the
husband and children etc. CWatson
VS.. His Creditors, 5S Cal, 556) n
Again, in Sheehy VS.. Miles, 90 Cal,
2SS, the Supreme Court of this State
has said Quoting from syllabus): up
on the death of spouse the commu-
nifty property upon which a homestead
exists, vests absolutely in the survivor,
and the Probate Court has no power
/ to make a decree setting apart the
property for the use of the family; and
the effect of such a decree no matter
how broad it's language, is simply to
| take the property out of administra-
tion. (Sheehy VS.. Miles, SO Cal, 2SS)
Justice Harrison in a concurring opin-
ion in the case last cited thus tersely
| lays down the rule: THE order of
the Probate Court setting this land
| apart as a homestead for the benefit of
the widow and minor children, although
made upon the application of the
widow, did not divest her of the title
that had already vested in her by vir-
tue of her suvivorship.
! THAT the court had no jurisdiction
| of the subject matter with which it
purported to deal, and it's order thereon
was without any effect upon the title
| thus held by the surviving widow The
| jurisdiction which is conferred upon
the Superior Court in all matters of
| probate, is separate and distinct from
the ordinary jurisdiction which it exer-
cises in civil matters, and is limited in
it's exercise to property of the estate of
decedent which is under its control
in course of administration: and as at
the instant of the husbands death his
widow became vested with the entire
estate in the land, the court had no
more jurisdiction over it than 1t had
over any other land in which the dece-
dent may have held a life estate, and
could make no order affecting it's title
or the right to it's possession" (Sheehy
VS. Miles, 90 Cal, 297.)
Neither of the two cases last cited
CWatson VS.. His Creditors, 5S Cal, 500,
and Sheehy VS.. Miles, 93 CAL, 2SS) were
mentioned or considered by the court,
! fnI tn
VS.. HARRISON, in the 112 Cal, 262, and
this court is, therefore, left at liberty
to choose between them
| In the Ions VS.. HARRISON case the
equities were all on the side of the de-
fense, as will appear from the follow
ing excerpt from that decision: He
the plaintiff) was not a purchaser in
good faith The price paid for the
omit claim. though sufficient as a con-
sideration between him and Bell, indi-
Gates very clearly that he was speculat-
ing in a small way upon the supposed
misfortunes of another. He understood
he was purchasing this law suit, which
he commenced two days thereafter, and
having had such enjoyment as it af-
forded. he cannot reasonably complain
if he gets no more" Qons VS.. HARRISON,
112 Cal, 272)
This fact may in some degree ac-
count for the conclusion reached in
that case, but it certainly is inappli-
cable to the case at bar when the equi-
ties are clearly on the side of the plain
tiff. who has paid the full purchase
price of the land in controversy, and
| the defendant instead of having parted
with anything of value, has for years
enioyed the rents and profits of land,
the title to which was vested in an
other.
But. for the sake of argument, we
will disregard the equities of the case,
and ascertain, if we can, which line of
! authorities has reason and common
sense on it's side. The effect of the de-
cision is to vest the title to the home
stead premises in the estate of a de-
| ceased spouse, in the face of a statute
which in express terms says that the
title shall vest in the surviving spouse.
In other words, that case clearly nulli-
fies and makes nugatory the plain and
unmistakable language and meaning of
/ the Homestead Act. While, on the
other hand, the other line of cases cit
ed sustain and give effect to the home
stead law, and as between the two the
| choice is easy.
The estate of Theo Wheadon, de-
| ceased, never had any title to, nor in
terest in, the land in controversy, and
the decree of distribution made by the
Probate Court in the matter of said