Opinion
Appeal from a judgment of the Superior Court of Los Angeles County.
COUNSEL:
The proceedings under which the order of the probate court was made setting off the land in controversy to the plaintiff as a homestead were taken in pursuance of section 1465 of the Code of Civil Procedure. Upon the death of McKinnie, the property descended, one half to the widow (the same being community property), and the other half to the defendants in this action, and the action of the probate court taken in this matter was but the exercise of its jurisdiction over the property of the estate, and the effect of the order was simply to withdraw the land as an asset of the estate, and exempt it from the claims of creditors. It did not change the title to the land as vested upon the death of McKinnie. It was not within the power of the court in that proceeding to divest the defendants in this action of the title vested in them as heirs at law upon the death of their father. (Estate of Burton , 63 Cal. 36; Estate of Moore , 57 Cal. 442.)
Bicknell & White, for Appellants.
P. W. Dooner, for Respondent.
Under section 1468 of the Code of Civil Procedure, as it existed prior to the amendment of April 16, 1880, the homestead being set apart to the widow out of the community property, there being no minor children, became her property. (Estate of Boland , 43 Cal. 642; Rich v. Tubbs , 41 Cal. 34.)
JUDGES: In Bank. Thornton, J. Temple, J., Searls, C. J., McFarland, J., Paterson, J., Sharpstein, J., and McKinstry, J., concurred.
OPINION
THORNTON, Judge
The demurrer to the complaint was properly overruled. We see no reason why a party owning a homestead is not entitled to have his or her title to it quieted against the claims of others. Whatever interest the plaintiff has may be quieted. If a title in fee, such interest may be quieted; if a less interest, the less interest may be likewise quieted. Such we understand to be the rulings of this court. (Stoddard v. Burge , 53 Cal. 394; Pierce v. Felter , 53 Cal. 18.)
We will say further that under the statute as it stood in 1879, when the order setting apart the homestead was made, the decedent having left a widow and no minor child, and the property of which the homestead was set apart being community property, the homestead so set apart became the property of the widow, A. K. McKinnie. In other words, she became the owner in fee of the property thus set apart. (Code Civ. Proc., sec. 1468.) It having thus become her property, there was no necessity for calling in aid an adverse possession under the statute of limitations. We cannot see how a widow can acquire title to such property by adverse possession as against an heir. Conceding that an adverse possession by the widow is averred, if we reject such portion, the complaint still states facts constituting a cause of action.
Judgment affirmed.