Estate of Crowey v. Crowey
Before: McKinstry
Synopsis
Appeal from an order of the Superior Court 'of Napa County confirming a report of the appraisers admeasuring and setting apart a homestead out of the estate of a deceased person.
On the 24th of March, 1883, William H. Crowey and Mattie Crowey, his wife, filed a declaration of homestead on a tract of land in Napa County, containing 185.73 acres, including the 125 acres set apart to Mattie Crowey under the order appealed from. The land described in the declaration belonged to one G. W. Crowey, the father of W. H. Crowey, until the death of the former in October, 1882. By his will, G. W. Crowey devised the land to W. H. Crowey, but provided that no part of his estate should be distributed until five, years after his death, and that the income thereof during that period should be applied to the support of his wife, the appellant. On the 1st of October, 1882, G. W. Crowey leased the whole tract of 185.73 acres to one J. C. Meredith, excepting therefrom a house with five acres of land adjoining it, then occupied by W. H. Crowey. From the date of the lease until after the filing of the declaration of homestead, the lessee, Meredith, was in the sole occupation of the demised premises, farming it on his own account, and paying the rent as it accrued to the appellant. On the 7th of June, 1883, W. H. Crowey died intestate, leaving surviving as his widow Mattie Crowey, the respondent. In the proceedings for the settlement of his estate, the order appealed from was made, setting apart to her as a homestead about 125 acres of the land included in the declaration. The further facts are stated in the opinion of the court.
McKinstry, J. The appeal is from a judgment confirming the report of appraisers, setting apart a homestead, and was taken within sixty days. We can review the evidence. (Code Civ. Proc., sec. 939.)
W. H. and Mattie Crowey, when they filed their decía-; ration of homestead, did not reside in a dwelling-house “situated” on any other than the five-acre tract mentioned in the findings and evidence, within the meaning of section 1237 of the Civil Code. The adjoining 180-acre tract had been leased by the ancestor of W. H. Crowey for an unexpired term, and was in the exclusive possession of Meredith, the lessee, who resided in the dwelling-house on the demised premises.
It is urged by respondent that when land is occupied as a homestead, the fact that a part is rented out, or is used for business purposes, does not vitiate the homestead, nor limit the area of land protected by it. The 180-acre tract was never occupied by the homestead claimants, and it is not necessary here to decide what would be the effect of leasing a part of the actual homestead, after the homestead should be declared.
Two California cases are cited as supporting the judgment of the Court below. Of these Ackley v. Chamberlain, 16 Cal. 181, S. C., 76 Am. Dec. 516, was a case where the homestead claimant resided on a tract of 160 acres, [303]using the whole, with the barns and outhouses, for farming purposes. The principal occupation of the claimant being the working of the farm on which he resided with his family, it was held that the mere fact that he also kept a tavern at his residence did not deprive him of his right to claim as a homestead the property occupied by himself and family before he used it as a-hotel. Under the circumstances, the accommodation of travelers by a farmer was said not to be inconsistent with the main purpose of taking up the 160 acres and the erection of the dwelling-house. In Ornbaum v. His Creditors, 61 Cal. 457, it was held by a majority of the justices of this court that the claimant had sufficient possession and user of all the land described in his homestead declaration when he filed it.
Section 1237 of the Civil Code defines the homestead as consisting of “ the dwelling-house in which the claimant resides, and the land on which the same is situated, selected as in this title provided.” The homestead is selected by a declaration in which the claimant is required to state that he or she “ is residing on the premises [described], and claims them as a homestead.” (Civ. Code, sec. 1263.)
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