SEC. 1261. The phrase "head of a family," as in this title, includes Head of

within its meaning:

1. The husband.

2. The wife.

3. Every person who was residing on the premises with him or her and under his or her care and maintenance, either:

First-His or her minor child, or the minor child of his or her deceased wife or husband:

Second-A minor brother or sister, or the minor child of a deceased brother or sister;

Third-A father, mother, grandfather or grandmother;

Fourth-The father, mother, grandfather or grandmother of a deceased husband or wife;

Fifth-An unmarried sister, or any other of the relatives mentioned in this section who have attained the age of majority and are unable to take care of or support themselves.

family defined.

CHAPTER II.

HOMESTEAD OF THE HEAD OF A FAMILY.

SEC. 1262. The husband and wife, or either of them, or other head of a Mode of family, in the selection of the homestead, must execute and acknowledge, in selection. the same manner as a grant of real property is acknowledged, a declaration of homestead.

SEC. 1263. The "Declaration of Homestead" must contain:

Declaration

1. A statement of the facts that show the person making it to be the head of homeof a family;

2. A statement that the person making it is residing on the land, and claims it as a homestead;

3. A description of the land;

4. An estimate of its actual cash value.

stead.

SEC. 1264. The declaration must be recorded in the office of the recorder Declaration of the county in which the land is situated.

must be recorded.

hom stead is held.

SEC. 1265. From and after the time the declaration is filed for record, the Tenure by land therein described is a homestead, and if the declaration was made by a which married person, the land is thereafter by the spouses held in joint tenancy, and on the death of either of the spouses, and subject to no other liability than such as exists or has been created under the provisions of this title, it descends in and the title at once vests to the survivor.

CHAPTER III.

HOMESTEAD OF OTHER PERSONS.

SEC. 1266. Any person other than the head of a family, in the selection Mode of of a homestead, must execute and acknowledge, in the same manner as a selection. grant of real property is acknowledged, a Declaration of Homestead.

SEC. 1267. The declaration must contain everything required by the Declaration second, third and fourth subdivisions of section 1263.

of homestead.

SEC. 1268. The declaration must be recorded in the office of the county Declaration recorder of the county in which the land is situated.

must be recorded.

SEC. 1269. From and after the time the declaration is filed for record, the Effect of land described therein is a homestead.

7

filing for re

cord the declaration of homestead.

Notice to creditors.

CHAPTER VI.

OF CLAIMS AGAINST THE ESTATE.

SECTION 1490. Notice to creditors. Additional notice.

1491. Time expressed in the notice.

1492. Copy and proof of notice to be filed and order made.

1493. Time within which claims against an estate must be presented. 1494. Claims to be sworn to, and when allowed, to bear same interest as judgments.

1495. Probate judge may present claim, and action thereon.

1496. Allowance and rejection of claims. "

1497. Approved claims or copies to be filed. Claims secured by liens may be described. Lost claims.

1498. Rejected claims to be sued for within three months.

1499. Claims barred by statute of limitations. When and who probate judge may examine.

1500. Claims must be presented before suit.

1501. Time of limitation.

1502. Claims in action pending at time of decease.

· 1503. Allowance of claim in part.

1504. Effect of judgment against executor.

1505. Execution not to issue after death. If one is levied the prop

erty may be sold.

1506. What judgment is not a lien on real property of estate.

1507. May refer doubtful claims. Effect of referee's allowance or

1508. Trial by referee, how confirmed and its effect.

1509. Liability of executor, etc., for costs.

1510. Claims of executor, etc., against estate.

1511. Executor neglecting to give notice to creditors to be removed. 1512. Executor to return statement of claims.

SEC. 1490. (128.) Every executor or administrator must, immediately after his appointment, cause to be published in some newspaper of the county, if there be one, if not, then in such newspaper as may be designated by the court, a notice to the creditors of the decedent, requiring all persons having claims against him to exhibit them, with the necessary vouchers, to the executor or administrator, at the place of his residence or business, to be specified in the notice; such notice must be published as often as the judge or court shall direct, but not less than once a week for four

notice.

weeks; the court or judge may also direct additional notice Additional by publication or posting. In case such executor or administrator resigns, or is removed before the time expressed in the notice, his successor must give notice only for the unexpired time allowed for such presentation. (a)

Statutes of 1851, p. 464, §§ 126-8; 1861, p. 636, § 38.

See section 1501. post.

Follow Section 1490, Page 99.

If the wife, to secure the debt of the husband, mortgage her separate property, and the husband dies, and the holder fails to present the claim for allowance, and the mortgage is afterwards enforced; whether the widow has a contingent claim which she may afterwards enforce against the estate spoken of, but not decided. Sichel v. Carrillo, 42 Cal. 497.

rendered. Fallon v. Butler, 21 Cal. 24.

The word “claim," as used in the act concerning the estates of deceased persons, when it speaks of claims against an estate, is broad enough to include a mortgage. Ellis v. Polhemus, 27 Cal. 350.

A note secured by mortgage is a claim against the estate, but the mortgage given to secure the note is not such claim. Ibid.

The word "claim, as used in the one hundred and thirty-first section, includes mortgages as well as claims at large against the estate. Ibid.

Such a demand (for facts see same case cited under section 1493, post,) is not a "claim," in the sense of the statute, against the estate of the deceased. Suit was properly brought in the district court, and the administrator was a proper party for the purpose of liquidating the amount of the indebtedness. Carr v. Caldwell, 10 Cal. 380.

Estoppel-A claimant is estopped by his own act in presenting a claim to the administrator for allowance from denying that he had notice of the grant of administration, and in such case, it is immaterial whether publication was made or not. Danzey v. Swinney, 7 Texas, 617.

Advertisement, effect of-The advertisement for claims protects the executor in case of distribution after the advertisement has expired. Clayton v. Wardell, 2 Brad. 1.

Nctice to proper parties.-The allegations in a petition for administration are not sufficient to give the court jurisdiction, unless the proper notice

(a) NOTE.-(From Code of Civil Procedure.)-SEC. 1205. In case of death of any employer, the wages of each miner, mechanic, salesman, clerk, servant and laborer, for services rendered within the forty days next preceding the death of the employer, not exceed. ing one hundred dollars, rank in priority next after the funeral expenses, expenses of the last sickness, the charges and expenses of administering upon the estate, and the allowance to the widow and infant children, and must be paid before other claims against the estate of the deceased person.

(From Civil Code.)-SEC. 205. If a parent chargeable with the support of a child dies, leaving it chargeable to the county, and leaving an estate sufficient for its support, the supervisors of the county may claim provision for its support from the parent's estate by civil action and for this purpose may have the same remedies as any creditor against that estate, and against the heirs, devisees, and next of kin of the parent.

Time ex

pressed in

be given to bring the proper parties before the court. But if proper notice was in fact given, aud the proof was merely defective, it would seem competent for the court to receive another affidavit of the clerk, and file the same nunc pro tunc. Beckett v. Selover, 7 Cal. 215.

Creditor. Limitation.-If the creditor of a deceased person would preserve his claim against the estate of deceased, to be paid in the course of the administration, he must present it to the personal representative of the deceased, as required by the statute, otherwise it becomes barred forever-that is, it becomes barred as a claim against the estate, and no action can be maintained thereon. But if he have in his possession property, which by contract he holds as his security for the payment of the amount due him, he does not lose his right to retain it in pursuance of the terms of his contract, because he fails to present his claim against the estate. Wright v. Ross, 36 Cal. 414.

Services rendered and money advanced at request of administrator. Services rendered and money advanced at the request of an administrator for the benefit of an estate, do not constitute claims against the estate within the meaning of sections 128 to 140 inclusive of the probate act. The claims therein referred to are such as accrued against the intestate in his lifetime, or resulted directly from contracts made, or acts performed, or wrongfully omitted to be performed, during his lifetime. Gurnee v. Maloney, 38 Cal. 85. Claims, when may be presented.-Claims against an estate may be presented to the executor or administrator thereof before his publication of notice to creditors to present their claims. Ricketson v. Richardson, 19 Cal. 330.

SEC. 1491. (128.) The time expressed in the notice the notice. must be ten months after its first publication, when the estate exceeds in value the sum of ten thousand dollars, and four months when it does not.

Copy and

Compare section 1469, ante.

SEC. 1492. (130.) After the notice is given, as required by the preceding section, a copy thereof, with the affidavit order made. of due publication, or of publication and posting, must be

proof of notice to be filed and

Time within

which

claims against an

filed, and upon such affidavit or other testimony to the satisfaction of the court, an order or decree showing that due notice to creditors has been given, and directing that such order or decree be entered in the minutes and recorded, must be made by the court.

Statutes of 1851, p. 464, § 129; 1861, p. 636, § 39.

SEC. 1493. (130.) If a claim is not presented within the time limited in the notice, it is barred forever, except estate must as follows: If it is not then due, or if it is contingent, it may be presented within one month after it becomes due or absolute; when it is made to appear by the affidavit of the

be pre

sented.

1493. If a claim arising upon a contract heretofore made, be not presented within the time limited in the notice, it is barred forever, except as follows: If it be not then due, or if it be contingent, it may be presented within one month after it becomes due or absolute; if it be made to appear by the affidavit of the claimant, to the satisfaction of the executor or administrator, and the Probate Judge, that the claimant had no notice, as provided in this chapter, by reason of being out of the State, it may be presented any time before a decree of distribution is entered. A claim for a deficiency remaining unpaid after a sale of property of the estate mortgaged or pledged, must be presented within one month after such deficiency is ascertained. All claims arising upon contracts hereafter made, whether the same be due, not due, or contingent, must be presented within the time limited in the notice; and any claim not so presented, is barred forever; provided, however, that when it is made to appear by the affidavit of the claimant, to the satisfaction of the executor or administrator, and the Probate Judge, that the claimant had no notice as provided in this chapter, by reason of being out of the State, it may be presented at any time before a decree of distribution is entered.

See generally: Sichel v. Carillo, 42 Cal. 497; People v. Olvera, 43 Cal. 494.

whole period of publication of the notice to creditors, and nas no actual knowledge of the publication, may present his claim to the administrator at any time before the decree of distribution is entered. No other proof of absence will be required than his own affidavit. Nor will his time for filing the claim be limited by the fact of his return to the State before the expiration of the ten months, within which, by the terms of the notice, claims were required to be presented. Cullerton v. Mead, 22 Cal. 95.

Claims of surviving partner, when to be presented. -The claim of a surviving partner for advances to the partnership should not be presented to the administrator of the deceased partner for allowance, until the partnership affairs are wound up; and it may be thus presented at any time within ten months after the partnership affairs are settled, and if rejected, suits may be brought on it at any time within three months after its rejection. Gleason v. While, 34 Cal. 258.

Claims not presented to administrator.-An objection that a claim against the estate of the intestate has not been presented to the administra