Cameto v. Dupuy
Synopsis
Homestead Decdaration.—A declaration claiming a homestead on premises held in joint tenancy, or tenancy in common, made prior to 1868, was not valid.
Idem.—The act of 1868 does not allow a homestead to be carved out of lands held in joint tenancy, or tenancy in common, except when the person filing the declaration is in the exclusive occupation of the tract sought to he dedicated as a homestead.
Homestead to Subviving Wire.—The Probate Court does not acquire jurisdiction to set apart a homestead for the surviving wife, where no homestead had been selected before the death of the husband, unless a peti ■ tion therefor is filed.
By the Court: The declaration of homestead filed by the petitioner in 1864 was not valid, for the reason that the premises were then held in joint tenancy. (Elias v. Verdugo, 27 Cal. 418; Seaton v. Son, 32 Cal. 481, and cases cited.)
That defect was not cured by the homestead act of 1868 (Stats. 1867-8, p. 116), for that act provides only for the acquisition of such right, in lands held in joint tenancy, or tenancy in common, where the person filing the declaration is in the exclusive occupation of the tract sought to be dedicated as a homestead. The Court, therefore, did not err in refusing to set apart such premises as a homestead. Nor did the Court err in refusing to set apart a homestead to the petitioner from other real estate of the decedent, for no petition was filed therefor, as provided by Sections 1,465 and 1,481, Code of Civil Procedure.
Order affirmed.
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