Moore v. Moore

VANCLIEF, C. Action in the nature of ejectment to recover possession of an undivided half of a parcel of land situate in the county of Santa Cruz, and containing about thirty-five acres, which plaintiff claims as a probate homestead. It is alleged in the complaint that the plaintiff is the owner, and entitled to the possession, of the demanded premises; that defendants are in possession, and wrongfully withhold the possession from the plaintiff; that the rents and profits of the land have been and are of the value of $480 per year; and that the plaintiff has sustained damages in the sum of $2,300 by reason of the detention and withholding of the possession. Prayer that plaintiff may recover the land, with rents, profits, and damages. The separate answers of the defendants each ‘‘ denies that plaintiff is, or ever was, j¡¿ie owner, or entitled to the possession, of an undivided one-half of the real estate described in said complaint, or any part thereof,” and specifically denies every other allegation of the complaint, except.that it is admitted that the value of the rents and profits have been one dollar per year. The jury returned a general verdict for the plaintiff, and assessed the damages at $847, upon which judgment was rendered in favor of the plaintiff. Defendants appeal from the judgment, and from an order denying their motion for a new trial.

• The plaintiff is the widow of William H. Moore, deceased, who left surviving him four minor children by a former marriage, and a son by his marriage with plaintiff was born after his death, and named William H. Moore. The defendant Thomas W. Moore is a brother of the deceased, and administered upon his estate. On the petition of the plaintiff, filed after the birth of her son, William H. Moore, the demanded premises were set apart from the separate estate of her deceased husband by the probate court, as a homestead for the use of the widow and three of said minor children, namely, Charles Moore and Stella Moore, children of the former marriage, and William H. Moore, the son of plaintiff. The order setting apart the homestead was made April 26, 1881, and apportions the homestead as follows: “The undivided one-half part thereof to said widow, Helen M. Moore, and the un[192]divided one-sixth thereof to each of the said minor children of the deceased, to wit, Charles Moore, Stella Moore, and William H. Moore.” The effect of this order was determined in the case, Estate of Moore, 96 Cal. 522, 31 Pac. 584, in which it was held that conceding the order to have been erroneous, in that it did not limit the duration of the homestead as.required by section 1468 of the Code of Civil Procedure, yet, as there had been no appeal from it within the time limited by law, it was not void, and passed absolute title to the widow and the children named, so that the homestead was not subject to distribution on the settlement of the estate. The defendant Thomas W. Moore was a party to that appeal. It appears that Charles Moore was fourteen years of age at the time the petition for homestead was filed (August 2, 1877), and consequently became of age sometime in 1884. The homestead has upon it a large and a small dwelling-house, a barn and other outhouses, and an orchard, besides a field of about twenty acres.