In re Estate of Headen

The query now is, “ Are the widow’s rights in the homestead governed by the laws in force when the homestead was created, or by the amended law passed thereafter, but previous to the death of deceased?” The amendment of 1874 does not show on its face that it was intended to operate retrospectively on homesteads already created. It should not, therefore, have a retrospective operation. (Cooley’s Const. Lim. 370, and 33 cases cited; Dewey v. Lambier, 7 Cal. 347 ; Greer v. Blancher, 40 Cal. 194; Gates v. Salmon, 28 Cal. 320; Thorne v. San Francisco, 4 Cal. 127.)

Our position is that it was the act of the party under the law in reference to his own property, and not the law itself, that vested the wife as joint tenant. QGohen v. Davis, 20 Cal. 195.) The wife was as much the owner of the land when the declaration of homestead was filed as she ever could have been upon the death of the husband, even had the law remained unchanged.

“The interest which a joint tenant has as a survivor is not a new one acquired by him from his cotenant upon the latter’s death, for his own interest is not changed in amount, but only his cotenant's is extinguished.” (1 Wash. Peal Prop. 557.)

The Legislature could not take away the rights of a joint tenant, even though it gave the rights of a tenant in common in return. (Dewey v. Lambier, 7 Cal. 347; Greer v. Blanchar, 40 Cal. 194.) .

D. W. Herrington, for "the Children.

The order is an attempt to create a freehold estate in the property of the heirs of the deceased, which is greater than any estate or interest created by law in favor of or authorized to be [296]set apart or assigned to petitioner in her several right for her sole use, or the use of the family of the deceased. (Civil Code, sec. 1265, as amended; Code Proc. 1474, as amended.) This right is a mere rule of descent. (Cooley’s Constitutional Lim. 3d ed. pp. 358 to 361, citing Mayor, etc. 8 N. Y. 110; 1 Kent’s Com. 455.) The powers of the Probate Court to dispose of the homestead carved from the separate estate of the deceased husband, dedicated as such before his death, extends under the Codes, as they have existed since 1874, only to setting the same apart to the heirs of the deceased permanently, with a discretionary authority to assign the same to the use of the family during the progress of the administration.

J. J. Burt, also for the Children.