Sheehy

1. Upon the facts found by the trial court, the declaration of homestead filed for record in the county recorder’s office by George Styles had the effect, upon his death, to vest in his surviving widow all the estate in the land therein described that was held by him in his lifetime; and her deed to the appellant Kate Miles transferred to her the same estate. The order of the probate court setting this land apart as a homestead for the benefit of the widow and minor children, although made upon the application of the widow, did not divest her of the title that had already vested in her by virtue of her survivorship. That court had no jurisdiction of the subject-matter with which it purported to deal, and its order thereon was without any effect upon the title thus held by the surviving widow. The jurisdiction which is conferred upon the superior court “ in all matters of probate ” is separate and distinct from the ordinary jurisdiction which it exercises in civil matters, and is limited in its exercise to property of the estate of a decedent which is under its control in course of administration; and as at the instant of the husband’s death his widow became vested with the entire…

This is an appeal from a judgment in favor of plaintiff in an action to recover a deposit made *292 on a sale of real estate situate in the city and county of San Francisco, the plaintiff claiming the title to be defective. The condition of defendants’ title to the tract of land is the only question involved.

In the case of Turner v. McDonald, 76 Cal. 177 , this court said: “A perfect title must be one that is good and valid beyond all reasonable doubt and in that case it was conceded by counsel upon both sides that a title, to be good, “ should be free from litigation, palpable defects, and grave doubts, should consist of both legal and equitable titles, and should be fairly deducible of record.” It would seem, in fairness to the vendee, that the foregoing requirements should be held absolutely necessary, in order. to fully satisfy the covenant of perfect title. Certainly such a condition of title must exist before it can be said to be good and valid beyond reasonable doubt. (See Reynolds v. Borel, 86 Cal. 538 ; Richmond v. Gray, 3 Allen, 27 ; Sturtevant v. Jaques, 14 Allen, 526 .)

While the record here is silent as to the fact, we will assume that upon the fifteenth day of…