IN THE MATTER OF THE ESTATE OF S. L. REED, 23 Cal. 410

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Horton, J. concurring. S. L. Reed died on the thirtieth of March, 1862, leaving his widow Mary Ann Reed, and one child, surviving him. J. L. Reed was appointed administrator of the estate, with the consent of the widow.

The widow filed her petition in the Prohate Court, setting forth the fact of their marriage; that they had lived together after ' their marriage, and until his death, on a certain tract of land, which’is. described, as their family residence; and praying that twenty acres of the land with the dwelling-house thereon, in which they resided, be set apart to her as a homestead.

The creditors appeared and filed their written objections to the allowance of this -'••’Claim to a'homestead, on the ground: 1st, that no homestead had been 'selected, according to law, at the death of deceased, or at "■any-tithe; 2d, that the homestead claim, if any there was, had been abandoned by the act of the parties in mortgaging the property ; 3d, that the marriage of the petitioner and deceased, was subsequent to the twenty-eighth day of April, 1860, and to the contracting of the debts allowed against the estate; 4th, that the real estate was acquired by the deceased prior to the marriage, and was his separate property, and not subject to a homestead claim.

On the first day of June, 1863, the Probate Court denied the application to set apart the homestead, from which the widow takes this appeal.

The amendments to the Homestead Law, passed in 1862 (Stat. of 1862, 521), extended the time for filing declarations of homestead to the first day of June, 1862, and provided as follows: “ But from and after the said last mentioned day, no property shall be deemed a homestead, or be exempt from forced sale, under execution or other legal process, unless the declaration provided for in said act be made and filed for record according to law; provided, that the making or filing for record of such declaration shall not, in any case, or in any manner, affect or impair any alienation, sale, mortgage, or other contract, or lien, lawfully executed, or obtained prior to the time of the filing for record of such declaration.” We find nothing in the record, showing that any declaration of homestead had been filed as required by this law within the time fixed by this statute.

We find, copied into the transcript, a declaration of homestead, made by the petitioner, and filed, and recorded, on the sixteenth day of June, 1863, after the order appealed from was made. It cannot, therefore, avail the petitioner in this case. It is clear, that by the failure and neglect to file the declaration of homestead "within the time fixed by this statute, the property could not be deemed or held as a homestead. The Court, therefore, did not err in denying the application to set apart the pro; ' The order is therefore affirmed.