In re Estate of Headen

The query now is, “ Are the widow’s rights in the homestead governed by the laws in force when the homestead was created, or by the amended law passed thereafter, but previous to the death of deceased?” The amendment of 1874 does not show on its face that it was intended to operate retrospectively on homesteads already created. It should not, therefore, have a retrospective operation. (Cooley’s Const. Lim. 370, and 33 cases cited; Dewey v. Lambier, 7 Cal. 347 ; Greer v. Blancher, 40 Cal. 194 ; Gates v. Salmon, 28 Cal. 320 ; Thorne v. San Francisco, 4 Cal. 127 .)

Our position is that it was the act of the party under the law in reference to his own property, and not the law itself, that vested the wife as joint tenant. QGohen v. Davis, 20 Cal. 195 .) The wife was as much the owner of the land when the declaration of homestead was filed as she ever could have been upon the death of the husband, even had the law remained unchanged.

“The interest which a joint tenant has as a survivor is not a new one acquired by him from his cotenant upon the latter’s death, for his own interest is not changed in amount, but only his cotenant's is extinguished.” (1 Wash. Peal Prop. 557.)

The…