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Supreme Court of California.

DEPARTMENT No. 2.

[Filed October 7, 1880.]
No. 6459.

IN THE MATTER OF THE ESTATE OF W. H. MOORE, DECEASED, APPELLANT,

VS.

THOS. W. MOORE, ADMINISTRATOR, RESPONDENT.

ESTATES OF DECEASED PERSONS. When a widow conveys all of the interest in the property of her deceased husband which she received upon his death by succession, she is not estopped thereby to have a homestead set aside to her out of the property of her late husband.

Appeal from the Probate Court of Santa Cruz County.
C. B. Younger and F. J. McCann, for appellant.
MYRICK, J., delivered the opinion of the Court:

This is an appeal from an order denying the application of the widow of deceased that a homestead be set aside to her out of the separate property of her late husband. The deceased died October 30, 1871, leaving the petitioners, his widow and four minor children by a former marriage-to-wit, Fred. W., Alice, Charles, and Stella. A son, Wm. H., was born after the death of the intestate. On the 4th of March, 1872, letters of administration were issued to Thomas W. Moore, a brother of deceased, and the estate is still in process of administration. Since the death of intestate the widow continued to reside on the premises described in her petition until the commencement of these homestead proceedings, when she voluntarily left the same. The children of the former marriage have not continued to reside with her. During nearly all the time Fred W. has resided elsewhere, at school and other places. About a year before filing the petition Charles and Alice went away to school, and Stella remained with her only for a time. Her own son has continued to reside with her. On the 20th of October, 1877, Thomas W. Moore was by the Probate Court appointed guardian of the persons and estates of Fred. W., Charles, Alice, and Stella; and they have ever since been members of his family, and are under his control. No homestead had been declared during the lifetime of deceased.

The petition of the widow for a homestead was filed August

2, 1877. Thomas W. Moore as administrator, and the said Fred. W., Charles, Alice, and Stella, by their said guardian, filed their objections to the granting of the prayer of the petitioner. The substantial point of objection is, that on the 2d day of November, 1871, the petitioner executed a deed to said Frederick W. and Charles Moore of her right, title, and interest in the real estate left by her said husband; and that although the deed was a quit-claim deed, executed before the commencement of administration, yet by it, in effect, she sold and conveyed all her interest of every description, at law and in equity, in and to all said real estate, including any right to have a homestead admeasured therefrom; and she is now estopped from asserting any claim of any description to said real estate or any part thereof, and ought not to be permitted to assert a claim of homestead. It was upon this point that the Court below denied her petition.

We are of opinion that the Court below erred in refusing to admeasure and set apart a homestead. The deed of Mrs. Moore is silent upon the subject of homestead. Whatever its effect as a conveyance, it was no more than to convey the interest in the property of the deceased, which she received upon his death by succession. A homestead right, or a right to have a homestead, is not a right which vests under the law by succession; it is a right bestowed by the beneficence of the law of this State for the benefit of the family. Upon the death of an intestate his property goes by succession to his heirs, subject to administration. The objects of administration are: First, to support the family for a period; second, to set apart a homestead to the family; third, to pay the expenses of administration; fourth, to pay the debts of the deceased; fifth, to distribute the balance of the estate to those who take it by law. If an heir convey his interest in the estate, or any part thereof, he conveys such interest only as will remain to him after satisfying the first four objects above named, unless the deed should in terms expressly cover more. Setting apart a homestead is a part of the probate proceeding, as much as is a family allowance. Suppose there had been a guardian's sale of the interest of any one of the minor children (not yielding enough for his or her support), could it be said that such sale would prevent the child from having a proper allowance? By no means. The sale would pass simply the right of the child by succession. In the case at bar the deed did not estop the widow from applying for an allowance, nor from applying for a homestead. The homestead, when set apart, is to be set apart for the benefit of the widow and children. Every

minor child has an interest, and has a right to be named in the decree; the property set apart is to be for a home for them all-she, the widow, taking her place as the head of the family. It certainly could not be said that her deed, conveying her interest as successor would interfere with and defeat the purpose of the law in giving the family an abiding place.

We have carefully examined the authorities cited by respondent, and do not find any reason to doubt the correctness of these views. The case of Bates vs. Bates, 97 Mass. 392, is not parallel with this case as to its facts. There the widow had applied for and had obtained from the Probate Court admeasurement of her dower, which she conveyed, and then she applied to have a homestead set apart out of the same property. This the Court denied. That case would have been parallel with the case at bar if Mrs. Moore had first obtained partial distribution under our statute, had conveyed the property so distributed to her, and had then petitioned for a homestead out of the same property.

We do not see that Section 1485, C. C. P., applies to a homestead not declared during the life of both spouses. The right to a probate homestead, so called, is not the subject of sale. This Court has already held that the status of the widow at the time of the application must be considered; and if she by subsequent marriage has ceased to be the widow of the deceased, she cannot have a probate homestead set apart to her. If a testator devised his entire estate (his separate property), his widow would still be entitled to a homestead; but if she were to execute a deed of all her interest in the estate, her grantee could not have a homestead set apart to him. If she should, after the conveyance, die or marry again, there would be no right of homestead to survive her or her widowhood. Before the action of the Probate Court no estate has vested in the family, so far as homestead is concerned; it is merely a right to have the Court, as a part of the administration, set apart property; and not until such action can it be said that any estate has become vested either at law or in equity. The right to have a homestead set apart is no estate, either in law or in equity. As the Court said in Bates vs. Bates, 97 Mass. 395: "The estate of homestead is one of a peculiar nature. It is a provision by the humanity of the law for a residence for the owner and his family."

Judgment and order reversed, and cause remanded for further procceedings.

We concur: Sharpstein, J., Morrison, C. J.

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DEPARTMENT No. 1.

[Filed October 8, 1880.]
No. 6238.

THE CITY OF SANTA CRUZ, APPELLANT,

VS.

THE SANTA CRUZ RAILROAD CO., RESPONDENT. JURISDICTION-PRACTICE. Where an action has been removed from a Justice's Court to the District Court, upon a showing in a verified answer to the effect that the legality of the license tax or impost would be necessarily involved in the determination of the action, the action should be tried or determined in the District Court upon the pleadings in the Justice's Court.

Appeal from the District Court of the Twentieth Judicial District, Santa Cruz County.

W. D. Storey, for appellant.
C. B. Younger, for respondent.

MCKINSTRY, J., delivered the opinion of the Court:

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The complaint alleges that defendant is a corporation, etc., carrying on the "business of railroading and operating railroad passenger cars in said State," and that plaintiff is a municipal corporation created by and acting under an Act entitled "An Act to re-incorporate," etc., approved March 11, 1876. "That on, etc., the Mayor and Common Council of said city of Santa Cruz (this plaintiff), did, in pursuance of the power vested in them by law, pass an ordinance of said city entitled Ordinance No. 4.' That chapter first of said ordinance is therein designated 'Relating to City Licenses.' That Section 1 of said Chapter I of said ordinance is in the words and figures following, to-wit: 'Section 1. It shall be unlawful for any person to engage in or carry on any business, trade, profession, or calling, for the transaction or carrying on of which a license is required, without first taking out or procuring the license required for such business, trade, profession, or calling.' That Section 8 of Chapter I of said ordinance provides and states that for each railroad passenger car moved by steam in said city, a license tax of twenty-five dollars per annum shall be paid to said city by those carrying on the business of conveying passengers in such cars in said city. And said ordinance provides that persons carrying on such business in said city shall be required to take out or procure a city license therefor before it shall be lawful to carry on said business in said city. That Section 6 of said Chapter I of said ordinance reads and

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provides as follows: All licenses shall be paid for in advance in the gold and silver coin of the United States of America.' That on the 1st day of June, 1876, said ordinance was duly signed and approved by the Mayor of said city, and duly attested by the Clerk of said city; and said ordinance now is, and ever since June 1, 1876, has been in full force." The complaint further charges that after said ordinance was passed and approved, and at divers times before the commencement of this suit, the defendant has carried on and now carries on in said city the business of conveying passengers in passenger railroad cars moved by steam, and within the corporate limits of said city; and ever since June 1, 1876, and from that date to commencement of this action, defendant ran, used, and operated in said business, etc. That defendant has not taken out a license, nor paid said license tax or fee, etc. That before the commencement of this action, plaintiff, by its collector duly authorized, duly demanded payment, etc. But defendant refused, etc. That there was, at the commencement of this action, and now is, due and owing from said defendant to plaintiff, by reason of the premises, the sum of $225 in gold and silver coin of the United States." The complaint concludes with a demand for "judgment against the defendant for the sum of $225 in gold and silver coin of the United States, with costs of this action.'

To the complaint the defendant demurred on the grounds: "1. That said Court has no jurisdiction of the subject of the action. 2. That said plaintiff has no legal capacity to sue or bring this action. 3. That there is a defect of parties plaintiff, in that the City Treasurer and Collector of said plaintiff should have been named the party plaintiff. 4. That it is not alleged therein that the City Clerk of said plaintiff issued to the Collector of said plaintiff a license certificate for the business of which a license was required of said defendant. 5. That it is not therein alleged that a list was made of the persons or corporations doing business in said city of Santa Cruz, subject to a license or subject to pay a license. 6. That said amended complaint did not state facts sufficient to constitute a cause of action."

The Court below sustained the demurrer, with leave to plaintiff to file an amended complaint in sixty days. The plaintiff declining to amend, final judgment was entered that plaintiff take nothing by the action, and that defendant recover its costs, etc.

The complaint, the substance of which is given above, and which is the only complaint in the transcript, is headed:

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