In re Estate of Winslow

BRITT, C. Robert B. Winslow and his wife Emily resided on a lot of land, which was community property, in the city of Sacramento; in the year 1890 the wife declared a homestead on the land in manner conformable to the statute. - On May 28., 1895, said married parties jointly executed a written instrument reciting that differences had arisen between them, that [93]they desired to adjust the same and also their property rights without resort to the courts, and that they had agreed upon a division of their property, particularly described, in accordance with the provisions of such instrument; the property described included the said lot of land, which was referred to as the residence of the parties, and was the only real estate mentioned; it was then declared in said instrument that the said property “is hereby equally divided between the parties; and inasmuch as the said real estate is incapable of partition, it is further agreed that the whole of the aforesaid property, both real and personal, is of the value of four thousand seven hundred dollars,” and in consideration of the premises and of the sum of two thousand three hundred and fifty dollars, one-half the said value, to her paid, the wife renounced and relinquished all claims of every kind against the husband, and granted and conveyed to him all her right, title, and interest in and to all the said property, and released him from all obligation for alimony, etc., and agreed never to make any claim on him in any manner whatsoever; and the husband on his part released the wife from all claims he might have or assert against her; it was further agreed that “henceforth the parties shall live separate and apart from each other, it being understood that this agreement is and shall operate as a complete settlement and adjustment of all their property rights and relations and affairs.” Said instrument was duly acknowledged by both parties and recorded in the office where the previous declaration of homestead was recorded. Said Emily further executed to said Robert a formal deed of grant purporting to convey to him the said lot of land “as and for his sole and separate property,” which was recorded in the same office. He paid to his wife the sum of two thousand three hundred and fifty dollars, mentioned in their contract, mortgaging the land to raise a portion thereof.

The parties separated; and in January, 1896, the husband died, leaving no children. In course of administration of his estate, his widow, the said Emily, petitioned the superior court to set over the said land to her, claiming that the homestead thereon was never abandoned, and that she was entitled to the same as survivor of the marital community. It was valued at three thousand two hundred dollars. Her petition was con