Herrold v. Reen

Citations

• 58 Cal. 443
• 1881 Cal. LEXIS 252

Syllabus

<p>Homestead—Retroactive Act—Construction of Act—Succession—Mortgage.—Under the act of April 28th, 1860, amending the act of 1851, relating to homesteads, it seems that after the death of either spouse the power to mortgage was gone, as the children under that act took an interest on the occurrence of the death of either husband or wife; but by the act of 1862 the law in this respect is changed, and the homestead upon the death of the husband or wife vests absolutely in the survivor; and this provision applies to the case of a homestead declared under the former act, where the husband or wife has died since the passage of the latter. In such case the property vests absolutely in the survivor, and may be mortgaged by him or her.</p> <p>Id.—Id.—Id.—Id.—The former act was a statute of descent, and under it no rights vested in the children until the death of one of the spouses, and therefore no change was made in their estate or rights, nor were they destroyed by the act of 1862.</p> <p>Id.-—Id.—Id.—Id.—Estates of Deceased Persons.—The setting apart by the Probate Court of a homestead for the benefit of the widow and children of deceased does not change the nature or character of the title.</p> <p>Id.-—Id.—Id.—Id.—Id.—The homestead was declared by the defendant and her husband in August, I860; and the latter having died in April, 1865, the homestead was set apart by the Probate Court for the benefit of the defendant and her children, and afterwards the defendant executed a mortgage upon the premises.</p> <p>Held, That under the fourth section of the act of 1862, the homestead property vested absolutely in the defendant, and that her mortgage was valid; hdd, further, that it was a serious question whether, if the law were oth-</p> <p>e erwise, the defendant ought to be allowed to set up the defense offered in this case.</p> <p>Id.—Case Distinguished.—The Estate of Headen, 52 Cal. 247, does not change the rule in Rich v. Tubbs, 41 id. 34.</p>