In re Estate of Delaney

California Supreme Court Jul 1, 1869Published

Before: Rhodes

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Holding. The court held that a surviving spouse seeking to have a homestead set off to them must prove the existence and extent of the homestead at the time of the decedent's death, including its value, as the homestead is limited to a statutory value.

Issues

What constitutes a statutory homestead and how is its extent determined?
Does a declaration of homestead automatically entitle a survivor to all lands described therein regardless of value?
Upon whom does the burden of proof lie to establish the existence and extent of a homestead at the time of a spouse's death?

Disposition. affirmed

Quotations verified verbatim against the opinion

“The only tests are use and value.”

“In absence of proof of what constituted the homestead at the death of the testator, the Court was unable to set off the homestead to the petitioner.”

“She alleged that she was entitled to the homestead, and upon her was the burden of proof, both of its existence and extent.”

Synopsis

Homestead.—The homestead represents the dwelling house of the family and necessary outhouses of every kind, and need not be in a compact form, and may be intersected by highways. It is not limited as to quantity, the only limitations being as to its use and value. The homestead dwelling house may also be used as a place of business by the family.

Tests op Homestead.—The homestead and the tests by which it is ascertained are the same whether the question arises between a husband and wife, or one of them and a vendee, a mortgagee, a creditor, or the heirs of the deceased husband or wife.

Value op Homestead.—If the homestead land increases in value after the filing' of the_declaration, so as to be worth more than five thousand dollars, the same “ will be decreased in quantity pro tanto.

Idem.—The declaration of homestead is not evidence of the value of the homestead, even if it states the value; and if the declaration describes a tract of land worth more than five thousand dollars, the actual homestead will be enough of the tract described, including the dwelling house, to come within said value.

Setting off Homestead to Surviving Wife.—The surviving wife inherits the actual homestead, that is, the dwelling house and sufficient land to be worth five-thousand dollars. This value is that which the land bore at the time of the husband's death, and not what it bore at the time the declaration was filed, or at any previous time.

Idem.—When the surviving wife petitions to have the homestead set off to her, she must show to the Probate Court what was the homestead at the time of the husband's death, and what was its value at that time, and the Court should restrict the quantity of land set off to her to an amount worth five thousand dollars, or less, regardless of the quantity described in the declaration of homestead.

Idem.—In such proceeding, it is not sufficient for the wife to prove that at the • time the declaration was filed, several years before the husband's death, the homestead described in the declaration was worth less than five thousand dollars'^

By the Court, Rhodes, J.: We had occasion, in Gregg v. Bostwick, 33 Cal. 220, to consider the principal qualities of a statutory homestead. In defining a homestead we said: “Both in the Constitution and in the statute the'word 'homestead’ is used in the ordinary or popular sense, or, in other words, its legal sense is its popular sense. It represents the dwelling house at which the family reside, with the usual and customary appurtenances, including outbuildings of every kind necessary or convenient for family use, and lands used for the purpose thereof. If situated in the country, it may include a garden or farm. If situated in a city or town, it may include one or more lots, or one or more blocks. In either case, it is unlimited by extent merely. It need not be in a compact body; on the contrary, it may be intersected by highways, streets, or alleys. Feither is it circumscribed by fences merely. In respect to quantity, by itself considered, it is unlimited, whether in town or country. In short, the only tests are use and value. The former is both abstract and statutory, the latter statutory only. Whatever is used—being either necessary or convenient—as a place of residence for the family, [180]as contradistinguished from a place of business, constitutes the homestead, subject to the statutory limit as to value. If, however, it is also used as a place of business by the family, which frequently happens, it may not, therefore, cease to be a homestead, if it would be necessary or convenient for family use, independent of the business. If what is actually used as a homestead' is of greater value than five thousand dollars, the excess is not homestead under the statute, though so in fact. In such a case the statute prescribes the course to be pursued. (Sec. 3.) Further than this, in the way of general definition, it is difficult to go, if not impossible.”

This definition is applicable, not only when the declaration is made and filed, but during the whole period of its existence, and up to the time when, upon the death of the husband or the wife it ceases to be a homestead, and the property vests in the survivor. The homestead, and the tests by which it is ascertained, are the same, whether the question arises between those claiming the homestead, or one of them and a vendee, a mortgagee, a creditor, or the heirs of the deceased husband or wife. There is not one homestead as against a creditor, and a different one when the survivor asserts his or her claims as against the heirs of the deceased. At its inception it is limited to five thousand dollars in value, and when the property is enhanced in value- so that it exceeds the statutory limit, the excess does not constitute a part of the statutory homestead. After the premises are worth five thousand dollars, every increase of value works a reduction in the area of the homestead, until a point is reached when it cannot be further cut down and leave a homestead of the value of five thousand dollars without material injury, and, after that point is reached, no part of the premises constitutes a statutory homestead, but the value or proceeds of the premises, to the extent of five thousand dollars, has the benefit of the exemption from forced sale, etc.

In re Estate of Delaney

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