The law, as it stood at the time of the filing of the declaration of homestead, did not vest in the wife a complete joint-tenancy with its grand characteristic, the jus accrescendi; the survivor took not by virtue of the jus accrescendi, but by way of descent. See Rich v. Tubbs , 45 Cal. 34; Johnston v. Bush , 49 Cal. 202, speaking of the homestead as a sort of joint-tenancy; and see, also, Civil Code, sec. 1265, before amendment, saying the homestead " descends to and vests in the survivor ."
JUDGES: Rhodes, J. Neither Mr. Chief Justice Wallace nor Mr. Justice McKinstry expressed an opinion.
OPINION
RHODES, Judge
Headen and wife, on the 29th day of June, 1873, filed a declaration of homestead on the separate property of the husband. Headen died in August, 1875. The appraisers of the estate of Headen set apart a portion of the land described in the declaration of homestead, not exceeding $ 5,000 in value, to the widow of the deceased; but the Probate Court ordered such tract to be set apart for her life only.
When the declaration of homestead was filed, the provisions of sec. 1265 of the Civil Code, respecting homesteads, as first adopted, were in force. They are in effect that from the filing of the declaration, if made by a married person, the " land is thereafter by the spouses held in joint tenancy; and on the death of either of the spouses, and subject to no other liability than such as exists or has been created under the provisions of this title, it descends to, and the title at once vests in the survivor." The provisions of the probate law then in force (Code Civil Procedure, sec. 1474) was in accord with the Civil Code, and provided that on the death of the husband or wife the homestead should vest absolutely in the survivor.
There can be no question that the homestead property, to the extent of $ 5,000 in value, would have vested absolutely in the surviving wife had the husband died while the above mentioned provisions of the Codes were in force; but it is contended that the provision of the Civil Code that the homestead property " descends to, and the title at once vests in the survivor," and the provisions of the Code of Civil Procedure that the homestead property " vests absolutely in the survivor," are in truth statutes of descent--or, as denominated in the Code, Statutes of Succession --and that upon the death of either spouse the title will go to the person entitled thereto, according to the Statute of Succession applicable to such property in force at the time of the death of such spouse; that is to say, in accordance with sec. 1265 Civil Code, as amended in 1874, by which the title in this case would go to the heirs of the deceased husband, subject to the power of the Probate Court, to assign the property for a limited period to the family of the decedent.
If those provisions of the Civil Code that the property " descends to, and the title vests at once in, the survivor," and that of the Code of Civil Procedure that the property " vests absolutely in the survivor," amount only to statutes of succession, then the position that sec. 1265, as amended in 1874, is applicable as a statute of succession, is correct. (Rich v. Tubbs , 45 Cal. 34.) But if these provisions only declare the operation and effect of the making and filing of the declaration of homestead--merely define the interest which the spouses severally acquire and hold by virtue of such declaration--then the amendatory section has no application in this case, and does not impair or affect the right or title which the wife acquired upon the filing of the declaration of homestead.
It was provided by sec. 1265 Civil Code, before the amendment of 1874, that " the land is thereafter by the spouses held in joint tenancy." One of the necessary incidents of a joint tenancy is the right of survivorship--the jus accrescendi --and the provision that upon the death of one of the spouses " the title at once vests in the survivor" adds nothing to the legal quality of the estate held by the spouses, but simply declares the result which must necessarily ensue upon the death of one of the joint tenants. The right of survivorship is the grand incident of a joint tenancy, and by its operation, where two or more persons are seized of a joint estate, the entire tenancy, upon the decease of one of them, remains to the survivors, and at length to the last survivor, and he shall be entitled to the whole estate, whatever it may be." (2 Black. Com. 184; Freeman on Cotenancy, sec. 12.) The Code of Civil Procedure, sec. 1474, then in force, provided, as already remarked, that the homestead, upon the death of either spouse, " vests absolutely in the survivor." This provision and the other provisions of that and the two succeeding sections are entirely consistent with the theory that the homestead survives to the surviving spouse.
There would be no room for doubt as to the proper construction of sec. 1265, Civil Code, were it not for the insertion, in the clause above cited, of the words " descends to." The Code has employed the word " succession" in place of the word " descent," which had been employed in the statutes prior to the Codes. The Civil Code, sec. 1383, defines succession as follows: " Succession is the coming in of another to take the property of one who dies without disposing of it by will"; and in providing for the transmission of the estate by succession, the Code declares that the estate " is succeeded to" by the heirs, " is distributed to" or " goes to" or " comes to" them, and that the heirs " take," " share," or " inherit" the estate; but the word " descend or descent" does not appear to have been employed in that statute, in defining the succession of the different classes of heirs to the estate. We are of the opinion that both the phrases " descend to" and " vest in" merely express the operation of the rule of survivorship which is necessarily incident to a joint tenancy, and that they do not furnish any other or different mode for the transmission of the estate.
It is proper to say that this construction is not in conflict with the doctrine of Rich v. Tubbs , 45 Cal. 34. The fourth section of the Homestead Act of 1860, which was involved in that case, is clearly a statute of descent and distribution, as applicable to property which had been appropriated as a homestead. The Homestead Act of 1862, which provided that the homestead property should vest absolutely in the survivor, was not involved in that case, and it was unnecessary to determine whether the survivor took by descent, or as the surviving joint tenant.
Order reversed and cause remanded for further proceedings in accordance with this opinion.