The record-union., 1897-10-23

The principal facts in the case are
undisputed by the parties and are as
follows:
On the 4th day of May, 1866, Theo-
uore Wheadon filed his declaratory pre-
emption statement for the above-de-
scribed lands, in the local United States
Land Office. Thereafter, and on jan
uary %, 1869. he executed and caused
TO be recorded as required by law,
declaration of homestead, and con-
tinued to reside thereon with his fam
lily until his death, which occurred
March ii, 1871. On the Sd day of
April, 1871, letters of administration
upon the estate of said Theodore Whea-
ton, deceased, were issued to his widow
Isabel Wheadon, by the Probate Court
of Sacramento County. An inventory
was filed in due course of the admins
tration of said estate, wherein the
aforesaid lands We're appraised at less
than five thousand (S5 000) dollars, and
described as being the property of said
estate. Thereafter and on November
D, 1886, a decree of distribution was
made by the Probate Court in the mat
ter of said estate, and said lands were
therein described as a part of the res
idue Of the estate of said Theodore
Wheadon, deceased, and which residue
was by said decree distributed, one
half G,2) to Isabel Wheadon, surviving
widow Of said deceased, and one-sixth
90 each to the defendant and his
brother and sister, children of said de-
ceased. No mention is anywhere made
in said probate proceedings of the
homestead character of said lands On
April 1, 1874, the United States patent
for said lands issued to said Isabel
Wheadon for the heirs of Theodore
Wheadon deceased, she having prior
thereto made the payments required by
the laws of the United States in such
cases, Isabel WheadOn and her son
George T. WheadOn, executed and de-
livered to the plaintiff their deed for
said premises, the consideration being
So 597 81, which the parties to the tran
saction considered the full value of the
fee simple title to all of said lands.
The defendant is in possession, claim
ing to own an undivided One-sixth DO
of said premises under the aforesaid de-
ere of distribution made in the mat
ter of the estate of Theodore Wheadon,
deceased.
The following questions are pre-
scented for solution by the foregoing
statement of facts:
First-Did the title to said lands vest
in Isabel Wheadon, surviving widow of
said Theodore Wheadon, deceased, on
his demise on March II. 1871, under the
provisions of the so-called Homestead
Act of 1862?
Second-If so, was the title Of said
Isabel Wheadon affected by the issu-
ance of the United States patent to her,
for the heirs of Theodore Wheadon,
deceased?"
Third-Was Isabel Wheadon di-
vested of her title to said land by the
decree of distribution in the matter of
the estate of Theodore Wheadon, de-
ceased and her relations thereto?
First-Taking up for consideration the
first of the foregoing propositions, to
wit: Did the title to said lands vest
in Isabel Wheadon, as the surviving
widow of said Theodore Wheadon, de-
ceased, under the aforesaid declara-
ton Of homestead?
1t is we'll settled in this State that
the homestead character may be I'M
pressed upon any kind of title to land,
either equitable or legal. On this sub
ject our Supreme Court has said:
W naIeNeT De KUe cudl OA 1iAC tANA~
or interest in the land held at the time
of the filing of the declaration (of
homestead). the claim viii attach to
that title or interest, and whatever may
5nure or grow out of that title Will be
impressed with the lien equally with
the original title" alexander VS.
jackson, 81 Cal, 514)
And in the more recent case Of Perry
VS.. Ross GOA Cal, 16) the same court
said: "One who has possession of land
is owner as to all the world except the
holder of the legal title, and is entitled
TO the benefit of the Homestead Act.
That which is covered by the exemption
of a homestead is the land, and not any
particular claim of title to it (Perry
VS.. Ross. 1e4 Cal. 161
Theodore Wheadon made his declara-
ton of homestead on January 26, 1869,
and died on March ii, 1871, and there
can be no dispute that the rights of
his surviving widow under said claim
of homestead are to be determined by
the provisions of the Act of the Legis-
lat1lre of California passed May u,
1862. (Statutes of California, 1862,
page 519) That Act provided that a
homestead which had been declared
upon community property vested, on
the death of one of the spouses, abso-
lutely in the surviving spouse. This
rule has been so often announced by
our Supreme Court that it is deemed