Sampsell

In the voluntary bankruptcy proceeding of a husband and wife and on their petition, the district court ordered that the California residence of the bankrupts be set aside from the bankrupt estate as homestead and exempt property. The trustee in bankruptcy has appealed from-that order because the declaration of homestead, although- duly executed and acknowledged by the spouses before they filed their petition in bankruptcy, was not recorded as required to become effective under California law until after bankruptcy adjudication.

Disposition of the issue thus raised must be made in light of the decision of the Supreme Court in Myers v. Matley, 1943, 318 U.S. 622 , 63 S.Ct. 780 , 87 L.Ed. 1043 , sustaining the action of this court in approving a Nevada homestead exemption where, a-s in the present case, the exemption had not been perfected by recording until after the adjudication of bankruptcy. The trustee has attempted to distinguish that case on two grounds.

First, it is contended that the Myers decision is not controlling here because there only the husband was bankrupt and the homestead exemption on property listed in his bankrupt schedule wa-s claimed by his nonbankrupt wife.…