Whelan v. Brickell

Public Land.—In 1860 a, Married Man Went into Possession of part of the government land known as the “outside lands” of San Francisco. In 1863 he died, and his wife, with their children, continued in possession,, and was in possession at the passage of act of Congress of March 8, 1866 (14 Stat. 4), relinquishing and granting the right and title of the United States in said lands to the city of San Francisco, in trust to be “disposed of and conveyed by said city to parties in the bona fide actual possession thereof by themselves or tenants on the passage of this act,” on such terms as the legislature should prescribe. While the husband and wife were in possession, they executed a declaration of homestead on the land under the California homestead act of 1862, by which the homestead estate, on the death of either, vested absolutely in the survivor. Thereafter the city deeded the land to the widow, she having complied with the various ordinances and legislative acts relative thereto. Held, that as she had bona fide actual possession at the passage of the act, no trust arose under the conveyance to her in favor of said children. Baker v. Brickell, 87 Cal. 329, 25 Pac. 489, 1067, followed.

Estate of Decedent.—Where Land Belongs to a Wife, the fact that she, as administratrix of her husband, returned said land as assets of his estate is immaterial, and does not estop her to claim it as her own.1