Minium

This is an appeal from an order sustaining a general demurrer to the plaintiff’s first amended complaint without leave to amend. Since the appeal was taken Mary E. Loeber, who commenced the action, has died, and the administratrix of her estate has been substituted as plaintiff and appellant.

The purpose of the action is to obtain a decree declaring a homestead acquired by the defendant from the government of the United States to be community property of the intestate and defendant, who were husband and wife at the time of the initiation of the proceeding for the grant of the homestead. From the complaint it appears that the deceased and defendant were married in the year 1888. In 1914 they separated and did not thereafter live together. About two months after said separation, to wit, in December, 1914, the defendant made a homestead entry upon the land in question. Subsequently an action for divorce was commenced by said wife, and in the month of October, 1916, she was granted a final decree of divorce from the defendant. About two years thereafter, the defendant having made his final proof upon the homestead application, and complied with the laws of the United States in that…