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In re the Estate of Boland

IN THE MATTER OF THE ESTATE OF JOHN BOLAND

In re the Estate of Boland, 43 Cal. 640 (1872)
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Court
California Supreme Court · State Highest Courts
Decided
April 15, 1872
Docket
No. 2,474
Judges
Niles
Citations
43 Cal. 640
Cited by 21
Headnotes
Homestead Undeb Pbobate Act.—If there has heen no homestead created during the existence of the community, by a compliance with the Homestead Act, the widow can acquire no homestead interest in the property, under sections one hundred and twenty-one, one hundred and twenty-four, and one hundred and twenty-five of the Probate Act, until an order of the Probate Court, or Judge, has heen made setting it apart to her. Idem.'—If a widow, who is entitled to a homestead, under sections one hundred and twenty-one, one hundred and twenty-four, and one hundred and twenty-five of the Probate Act, again marries before an order of the Probate Court is made setting apart such homestead, she loses, by her marriage, the right to such homestead.
Summary
Appeal from the Probate Court of the City and County of San Francisco. On the 24th day of October, 1860, John Boland purchased a lot in San Francisco, with money, his separate property. He resided on- the same with his wife and daughter, Margaret Boland, and died on the 3d day of February, 1861. Ho homestead was claimed under the provisions of the Homestead Act. Boland left a will, which was probated, by which he devised all his property to his daughter, and nominated John McEamara the executor of his estate. The daughter was born in 1851. After Boland’s death the widow and daughter continued to reside on the lot until November, 1868, when the daughter married one Brackett, and left to reside elsewhere with her husband. In 1862 the widow married Charles W. Lane, and she and said Lane have continued to reside on the premises. In 1869 Boland’s former wife, Mrs. Lane, applied to the Probate Court for an order setting apart the premises as a homestead, under the one hundred and twenty-first, one hundred and twenty-fourth, and one hundred and twenty-fifth sections of the Probate Act. The executor and the daughter opposed the application, and asked that the property be distributed to the daughter under the will. The Court granted the application, and the executor appealed.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Niles

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*642 By the Court, Niles, J.:

Conceding, for the purpose of this case, that the property in question could be set apart to the widow, under the provisions of the Probate Act, notwithstanding the will of John Boland, it is evident that the widow could acquire no homestead interest in the property until an order of the Probate Court, or Judge, was made, setting it ajiart to her. It difiera from the case of a homestead created during the existence of the community, by a compliance with the provisions of the Homestead Act, the title to which vests in the wife upon the death of the husband, by right of survivorship. In the latter case the property becomes the property of the widow by operation of law. In the case presented it could only become hers by the decree of the Court or Judge. If there could be any doubt at what time the right of the widow attaches to the land, and withdraws it from administration, it is settled by the provisions of section one hundred and twenty-five of the Probate Act: “When property shall have been set apart for the use of the family, in accordance with the provisions of this chapter, if the deceased shall have left a widow and no minor child, such •property shall be the properly of the widow. H he shall have also a minor child or children, the one half of such property shall belong to the widow, and the remainder to the child,” etc.

The right of Margaret Lane to have a homestead set apart to her from the estate of her former husband, John Boland, must, therefore, be determined from the facts as they existed on the 3d of January, 1870, when the order of the Probate Court was made. This was nearly nine years after the death of John Boland. Margaret, his former widow, had been for over seven years married to her present husband, Lane. The only child of John and Margaret Boland had married, and was no longer under her mother’s charge or control.

Sections one hundred and twenty-one, one hundred and *643 twenty-four, and one hundred and twenty-five of the Probate Act, under which the order was made, make provision for but two classes—the widow and the family of the deceased.

Margaret Lane occupied neither of these positions. Her widowhood terminated by her marriage with Charles Lane, and she then became a member of his family. Whatever right she may have once had to have the property set apart for her use, she lost when she lost the status upon which the right depended.

Order and judgment reversed, and cause remanded.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 21 cases

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1875–1876: 11887–1888: 11891–1892: 21893–1894: 11895–1896: 11897–1898: 11905–1906: 11913–1914: 11917–1918: 21919–1920: 11921–1922: 11923–1924: 11947–1948: 11953–1954: 21957–1958: 21963–1964: 218752026peak 1891 · 2

Relies on it most ⓘ

  1. California Bank v. Schlesinger324 P.2d 119 (Cal. Ct. App. 1958)
  2. California Bank v. Schlesinger159 Cal. App. 2d 854 (1958)
  3. Estate of Blair269 P.2d 612 (Cal. 1954)
  4. Estate of Edith E. Dalton v. Dalton197 P.2d 62 (Cal. Ct. App. 1948)
  5. Bonnen v. Ruoff269 P.2d 612 (Cal. 1954)
  6. Estate of Hayes1 Coffey 551 (Cal. Supp. Ct. (San Francisco) 1895)

Most recent

  1. Estate of Murphy225 Cal. App. 2d 224 (1964)
  2. Murphy v. Wells Fargo Bank225 Cal. App. 2d 224 (1964)
  3. California Bank v. Schlesinger324 P.2d 119 (Cal. Ct. App. 1958)
  4. California Bank v. Schlesinger159 Cal. App. 2d 854 (1958)
  5. Estate of Blair269 P.2d 612 (Cal. 1954)
  6. Bonnen v. Ruoff269 P.2d 612 (Cal. 1954)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

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