Michelman

A declaratory relief action was filed by the Trustee in Bankruptcy of Theodore J. Frye, alleging the invalidity of a declaration of homestead made by Mrs. Frye on the ground that she was not physically occupying the premises and her declaration fails to state that she was residing thereon. Each party filed a motion for summary judgment; in addition, plaintiff filed motion for judgment on the pleadings. The court denied plaintiff’s motions, and granted defendant’s motion for summary judgment; plaintiff appeals from the judgment entered on the order, claiming the trial court’s error in granting defendant’s motion to be the sole issue.

The following facts were presented by defendant’s affidavit in support of her motion. She married Frye in 1953; they have two children. In 1961 the Fryes, as joint tenants, acquired real property at 6218 East Sixth Street, Long Beach, which they occupied as the family dwelling. Around 9 a.m. on August 9, 1963, in the kitchen of their home, Frye grabbed her by the throat, seized a butcher knife and several times said, “I’ll kill you! I’ll kill you”; as she screamed he let her go and “hollered,” “get out of my sight.” She called the children from…