Eischen

Gertrude G. Eischen and George W. Eischen were husband and wife, having intermarried August 14, 1929, in Mexico and in California in 1931. November 4, 1943, Gertrude sued for divorce; George defaulted; an interlocutory decree was entered December 7, 1943, and a final decree April 11, 1945. They remarried August 25, 1945; Gertrude died in April 1956. She left no will and George was appointed administrator of her estate. Gertrude had two children by a former marriage. These are the appellants, Edward Gerlinger and Florabelle Gerlinger Patterson.

The present controversy arose from the following facts: Gertrude owned as her separate property the premises in Montebello where the couple for many years lived and conducted a flower shop. In 1932 she declared a homestead on the property. The effect of the final decree of divorce, if valid and unimpeaehed, was to terminate George’s homestead interest in the property and to reduce his interest as a surviving husband to one-third. (See Zanone v. Sprague, 16 Cal.App. 333 [ 116 P. 989 ]; 16 Cal.Jur.2d 603.)

January 28, 1958, George gave notice to appellants of a motion to vacate the final decree upon the ground that entry of the same was…