Myers

On October 24, 1940, an involuntary petition in bankruptcy was filed against Marshall Reno Matley, appellee’s husband; and on the same day, with Matley’s consent, he was adjudicated a bankrupt.

On November 20, 1940, appellee filed with the recorder of Washoe County, Nevada, a declaration claiming as a homestead certain premises, consisting of a residence lot in Reno, listed by her husband in his bankruptcy schedules. On November 27, 1940, appellee filed her petition claiming the premises as exempt. The petition was denied by the referee; but upon review by the court the referee’s order was reversed, and the trustee appeals.

. Appellee and 'the bankrupt were married in 1931. The Reno property was acquired from their earnings after marriage and was community property. Subsequent to the acquisition of the lot the Matleys built a residence thereon and occupied the same as a home until 1936, when the two went to work for the bankrupt’s father on a ranch near Wadsworth, Nevada. In April 1940 they moved to Fernley where for a brief time the bankrupt operated a small country store. It is in evidence that the absence of the Matleys from the home in Reno was of a temporary nature and that…

(dissenting).

(A) The court has decided an important question of local law of Nevada with respect to the right of a wife in a homestead prior to a transfer by operation of the Nevada law, similar to the transfer by operation of law on the filing of a petition in bankruptcy, where the wife has taken no steps to create the homestead prior thereto, in conflict with the applicable Nevada decisions to the contrary. Rule 38, U.S.Sup.Ct, 28 U.S.C.A. following section 354.

This is a dissent to the holding of the majority that the transfer by operation of law under § 70, sub. a of the Bankruptcy Act is the same as a voluntary transfer by the husband to some third party and that therefore a homestead exemption is created without the necessity of making and filing a declaration. For this holding the majority relies on a dictum in the decision of First National Bank of Ely v. Meyers, 39 Nev. 235 , 150 P. 308 . 1 That decision considered the provision concerning the voluntary transfer by the husband of community property as provided in § 3360 of the laws of Nevada. N.C.L.1929. The pertinent portions of the statute read: “The husband shall have the entire management and control of the…