Antonio Sunol, in his lifetime, in April, A. D. 1861, made, signed, acknowledged, and recorded a homestead declaration, covering the lot in dispute, and died in 1865, after the amendment of the homestead law of A. D. 1862. The law as amended asserts that the survivor shall, by operation of law, own the homestead property absolutely, and this has often been so held by this Court; therefore, the homestead is no part of the assets of the estate, and the Probate Court is not presumed to do a useless thing, because if the title is in the survivor absolutely, the estate cannot have any interest in it, and therefore, the Probate Court has no jurisdiction or control over the homestead, since the amendment of A. D. 1862. (Estate of Orr, 29 Cal. 101.)
The language of the will cannot pass the homestead, because in construing the will we must applyits terms, in absence of specific description of property, to land or property belonging to the testator, and within his testamentary disposition at the time of making the will. (Estate of Sylvey, 42 Cal. 211.)
OPINION By the Court:
1. Upon looking into the will of Sunol we are of opinion that the devise to the executors included the homestead and carried with it the authority to sell it, if its sale should become necessary.
2. The acceptance by Mrs. Sunol of the devise in her favor, if the fact be that she did accept it, would operate to estop her, or her grantee, the plaintiff in this action, from asserting her title to the homestead as against the executors, or Auzerais, the defendant here, who derives his title from the executors. This estoppel is, however, one of equitable cognizance, and it not having been relied upon by the defendant in pleading, though he had an opportunity to plead it, it results that it could not, for want of the requisite pleadings, have been properly considered or determined at the trial.
Order affirmed.