This is an appeal by Mary Gallagher, widow of the deceased, from an order denying her application to have set apart to her as a homestead certain land of the estate.
The application was made under that part of section 1465 *Page 97 of the Code of Civil Procedure which authorizes a probate court to set aside a homestead when "none has been selected, designated, and recorded" during the lifetime of the spouses. There is no dispute about the facts. The land sought to be set aside is farming-land, upon which there was no dwelling-house, and no building that could be used as a dwelling; and at the time of the husband's death neither he nor the petitioner was living on the land. There had been no statutory homestead. The contention of respondent is, that the property involved was not of the nature and character of homestead property, and therefore could not be set apart as a homestead, under section 1465.
In the opinions in some of the cases cited by respondent — as, for instance, Kingsley v. Kingsley, 39 Cal. 665 (which, by the way, did not deal with the code provisions concerning homesteads); In re Carriger, 107 Cal. 618; Wickersham v.Comerford, 96 Cal. 433; In re Armstrong, 80 Cal. 71 — there was, no doubt, some dicta not necessary to the determination of the cases upon the facts presented. And the expression used in some of those cases, to the effect that a probate homestead can be set apart only upon property which could have been dedicated, under the homestead act, immediately preceding the death of the husband, must be construed to mean only that it must be property which in its character is homestead property — that is, a dwelling-house, with the land on which it is situated, and which could have been occupied as a home — and not that it must be land on which the husband actually resided at the time of his death. In the case of a probate homestead, the court creates the homestead, and it may be carved out of any property of the estate suitable for a homestead. In the case of In re Bowman, 69 Cal. 244, the court say: "The statute regulating the matter does not require that they [the premises] should ever have constituted the residence. The finding of the court is, that the property set apart is suitable and proper for a homestead, and that was a sufficient basis for the order setting it apart." (See alsoEstate of Busse, 35 Cal. 310, and In re Noah, 73 Cal. 590.1) In the latter case it is said: "It may be conceded that the real property set apart as a homestead to the surviving husband or wife, by order of the court, need not be actually occupied at the time when the order is made." There is no doubt that where there are two or more pieces *Page 98 of land belonging to an estate, each having a dwelling-house on it, and being suitable for a home, the probate court may set apart either piece as a homestead for the widow, if there are no other valid objections to such action.
But we think that the authorities cited by respondent establish the rule that a probate homestead cannot be carved out of a tract of naked agricultural land, having on it no dwelling-house or other qualities of a home, and therefore we are of the opinion that the order appealed from must be affirmed.
It appears that for many years prior to the month of October, 1896, the deceased and petitioner resided on the lands here involved, in a dwelling-house which stood thereon; that in said month the dwelling-house and its contents were destroyed by fire; and that from that time until the death of the husband, which was in February, 1899, between two and three years afterwards, neither husband nor wife resided on the land, but lived elsewhere, and that petitioner continued to live elsewhere until the date of the filing of the petition. No other dwelling-house was ever built on the land, nor was it in any way occupied as a home. These facts do not affect the legal question presented. It is not necessary to inquire what petitioner's rights would have been if, after the burning of the house, the parties had continued to live on the land, in a tent or under the trees, or even if, while erecting another house, they had temporarily lived off the land, and the husband had died while these conditions existed. Where parties actually live on a piece of land and make it their bona fide home, the phrase "dwelling-house," as used in the homestead law, would undoubtedly be given a very liberal construction. But in the case at bar there is no pretense that the parties lived on the land, or in any way made it their home, after the burning of the house.
The court did not err in rejecting the offer of petitioner to prove that in 1875 she executed and had recorded a paper which she supposed was a good declaration of homestead on the land in question, but which was ineffective because not in compliance with the law, and that down to about May, 1890, she believed such paper to be a valid and effective homestead declaration. Neither did the court err in rejecting her offer to prove that it was her intention, if the court should grant her application, to move upon the land and *Page 99 erect a suitable dwelling-house or home. If these facts had been proven, the legal aspect of the question involved would not have been changed.
We cannot deal with the question whether or not it would be a just thing to give the land to petitioner. A homestead right is a creation of modern written law; and it can be acquired only by, at least, a substantial compliance with that law.
The order appealed from is affirmed.
Henshaw, J., concurred.
1 2 Am. St. Rep. 834.