openly and in his own name, to aid in the prosecution of a matter in litigation, and to receive through it such a reward as is usually gained by an attorney regularly admitted to exercise his profession. An attorney is prohibited to allow the direct use of his name as an attorney and counselor at law under the circumstances disclosed by the complaint in this case. Of what avail is such prohibition, if it can be, by such indirection as is practiced in this case, evaded? We are of opinion that the facts here disclose a case of indirect violation of the clause referred to, which is as much forbidden as a direct violation. If such a practice were allowed, an attorney might have a number of undisclosed associates through his agency exercising the functions of an attorney and counselor, and reaping the rewards flowing therefrom, without resting under any of the responsibilities incident to such a position, and possessing none of the qualifications which the law demands and requires. Such a practice would tend to increase the amounts demanded for professional services. In such a case, an attorney would be induced to demand a larger sum for his services, as he would have to divide such sum with a third person.

We have examined Bunn v. Guy, 4 East, 190, and Candler v. Candler, Jacob, 225, cited by counsel for appellant to sustain the validity of the contract sued on. We do not consider them applicable to the case before us. The office of attorney in England is entirely different from that of an attorney and counselor in this state. In England the fees of an attorney are fixed by statute, or rules of court, or orders in council, and his bill of costs and charges for disbursements are subject to be taxed by a taxing officer, and the taxation reconsidered by such officer. The decision of the taxing officer can also be revised by the judge on appeal: Weeks on Attorneys at Law, secs. 324, 325, et seq.

We cannot suppose that the fact that the attorney has to share the amount of his bill with an outsider would at all affect the amount allowed him. That amount would be the same, regardless of the circumstance that he was bound by his agreement to divide it with another. The laws of England regulating the appointments, duties, and conduct of attorneys have not been brought to our notice, and therefore we cannot determine how far the laws there prevailing permit or recognize as legal a contract made by an attorney to share his fees with a third person. Under such circumstances, this court

could not, with any confidence, pronounce any judgment as to how such a contract would be affected by English statutes or rules of court.

In Bunn v. Guy, 4 East, 190, the validity of a contract between attorneys was called in question. A practicing attor ney (Carpenter) agreed for a valuable consideration to relinquish his business and recommend his clients to two other attorneys (Bunn and Guy), and that he would not himself practice within certain limits, and would permit them to make use of his name in their firm for a certain time, without any interference on his part. The question arose in chancery concerning the marshaling of assets, and a case stating the above contract was sent by the lord chancellor to the court of king's bench for its opinion. The court certified their opinion to the court of chancery that the contract above stated was good in law.

In Candler v. Candler, Jacob, 225, an agreement by an attorney to pay a share of the profits of his business to the widow of his deceased father, who had been an attorney, was held valid. The agreement was made by deed between the widow of Henry Candler, the deceased father, and their son Henry Candler. It was recited in the deed that the agreement was entered into under a due sense of the influence which his mother and family could retain with his father's clients and connections, and the widow (Mary Candler) covenanted to use her utmost endeavors and influence to induce her friends and connections to employ him. The lord chancellor (Eldon), in delivering his judgment, said: "I have thought that, consistently with the policy of the law, agreements could not be made by which they [referring to attorneys] contract to recommend those who succeed them. I doubted whether professional men could be recommended, not for skill and knowledge in their profession, but for a sum of money paid and advanced. I knew that this would rip up many transactions, and I was happy that the court of king's bench was of a different opinion, though I never could entirely reconcile myself to their doctrine."

The opinion in Bunn v. Guy, 4 East, 190, was here referred to by Lord Eldon. In our judgment, the remarks of Lord Eldon, quoted above, may well create a strong doubt as to the correctness of the conclusion reached in Bunn v. Guy, 4 East, 190. However, for the reasons above given, we cannot follow the rulings in the cases just noticed. It is clear that the

right of the plaintiff to recover herein is the same as that of his assignor, Bolte. If the latter cannot recover, neither can the plaintiff, his assignee. The considerations expressed herein have led this court to the conclusion that the contract sued on, and alleged in the complaint, is forbidden by the policy of the law, and void, and that the court below erred in denying the defendant's motion for a nonsuit. The motion for a new trial was, therefore, properly granted, and the order appealed from must be affirmed. The view taken herein disposes of the case, and it becomes unnecessary to pass on the other questions raised by counsel for appellant.

Order affirmed.

ATTORNEY'S CONTRACT TO SHARE FEES. —A contract with one that he shall lend his aid in securing the appointment of another as special counsel to defend in a case in procuring testimony against the government of the United States, and in giving information for the management of it, upon consideration that the attorney appointed shall pay him one half of all the fees he shall receive in such case, is contrary to public policy and void: Meguire v. Corwine, 101 U. S. 108, cited in note to Parsons v. Trask, 66 Am. Dec. 509.

[IN BANK.]

SANDERS v. RUSSELL.

[86 CALIFORNIA, 119.]

HOMESTEAD. -ON THE DEATH OF A HUSBAND, community property of himself and his wife, held by them as their homestead, vests in her, and is protected as her homestead to the same extent as before his death. HOMESTEAD, JUDGMENT AND EXECUTION LIEN UPON. -Though a homestead is in value largely in excess of the amount allowed by law, the levy of an execution upon it does not create any lien. Its operation is confined to serving as a foundation for proceedings under the statute for the ascertainment of the value of the property covered by the declaration of homestead, and the procurement of an order of court for the partition or sale thereof, and the application of the excess to the satisfaction of the judgment. PRACTICE-ESTATES OF DECEDENTS, PRESENTATION OF CLAIMS AGAINST. If one has a judgment against the estate of a decedent, under which a levy has been made on a homestead in his lifetime, the plaintiff must present his claim upon such judgment to the administrator and procure its allowance, and is not entitled to proceed to have the homestead ap praised and sold or partitioned, and the excess above the amount of the homestead exemption applied to the payment of the judgment. Grove L. Johnson and Albert M. Johnson, for the appellant. A. P. Catlin and Lincoln White, for the respondent.

Fox, J. Judgment went for defendant on demurrer to the complaint. The only question on this appeal is, whether the complaint states facts sufficient to entitle the plaintiff to maintain the action. James and Mary W. Lansing were husband and wife. The premises described in the complaint were their community property, duly dedicated as a homestead. James Lansing died, when the premises became the sole property of Mary W. Lansing by operation of law (Civ. Code, sec. 1265), and was protected as such to the survivor in the same manner as before it had been protected to the community by its homestead character: Estate of Ackerman, 80 Cal. 208; 13 Am. St. Rep. 116. The death of the husband did not in any manner alter the state or character of the homestead (Tyrrell v. Baldwin, 78 Cal. 470), but upon his death, the property immediately vested in the surviving wife: Mawson v. Mawson, 50 Cal. 539; Estate of Headen, 52 Cal. 295; Gagliardo v. Dumont, 54 Cal. 496; Herrold v. Reen, 58 Cal. 443. The property having thus vested and being thus protected, this plaintiff, on April 9, 1885, recovered a judgment against Mary W. Lansing for $5,238.75. September 30, 1885, he caused execution to be issued and levied upon the property, and duly returned with the levy indorsed thereon, and the whole to be duly entered and recorded in the execution-book, in the office of the county clerk.

It is claimed that, at the time of this levy, the value of the property was largely in excess of five thousand dollars, and that, as to the excess, this created a lien upon the property. But this claim is not tenable. Property impressed with the character of homestead, no matter what its value, is exempt from seizure and forced sale. There was no lien of the judgment, and the levy created no lien, but simply created a foundation for proceedings under the statute (Civ. Code, secs. 1245 et seq.) for the ascertainment of the value of the property covered by the declaration of homestead, and the procurement of an order of court for the partition or sale thereof, and the application of the excess to the satisfaction of the judgment: Barrett v. Sims, 59 Cal. 618, 619; Lubbock v. McMann, 82 Cal. 230; 16 Am. St. Rep. 108.

In October, 1885, plaintiff commenced proceedings under the statute referred to, to have an appraisement of the property, and secure an order for partition or sale, and application of the excess to the satisfaction of his judgment; but these proceedings were never prosecuted beyond having appraisers

appointed. They never qualified or acted, and no further proceedings were taken in that action. In October, 1887, Mary W. Lansing died, and the present defendant was appointed her administratrix, qualified as such, and entered upon the discharge of her duties as such, in the administration of the estate.

Early in 1889 this action was commenced, which is substantially a proceeding under the same statute (Civ. Code, secs. 1245 et seq.), for the appraisement and sale or partition of the property, and the application of the excess above five thousand dollars to the satisfaction of his judgment. No claim was presented to the administratrix, and plaintiff claims that he was not required to present any, but that, having a lien upon the property, he was entitled to proceed, under section 1505 of the Code of Civil Procedure, directly to sale, were it not for the homestead, but that, the homestead intervening, his only remedy was to proceed as in this action; and it being to enforce a lien, the law did not require the presentation of the claim to the administrator, he having waived in his complaint all claim against the estate for deficiency. But we have already seen that he had no lien. Even if he ever acquired one, either by judgment or levy, it expired before the institution of this proceeding: Bagley v. Ward, 37 Cal. 121; 99 Am. Dec. 256; Rogers v. Druffel, 46 Cal. 654. If the levy created a lien, it did not extend it beyond the lien of the judgment: Bagley v. Ward, 37 Cal. 121; 99 Am. Dec. 256; Rogers v. Druffel, 46 Cal. 654; Isaac v. Swift, 10 Cal. 81; 70 Am. Dec. 698. Plaintiff therefore had a judgment, without lien, and it was his duty to present the same to the administratrix, in like manner with any other claim: Code Civ. Proc., sec. 1505. And even if his claim was in lien, and the property was a homestead, as he concedes it to have been, he was equally bound to present the claim for allowance against the estate: Code Civ. Proc., sec. 1475; Camp v. Grider, 62 Cal. 20. It follows that the complaint did not state facts sufficient to constitute a cause of action, and the judgment must be affirmed. So ordered.

HOMESTEAD - COMMUNITY PROPERTY. - The death of one of the spouses in no manner alters the estate or character of the homestead in community property: In re Ackerman's Estate, 80 Cal. 208; 13 Am. St. Rep. 116; Bol linger v. Manning, 79 Cal. 7; In the Matter of Burdick's Estate, 76 Cal. 639. But where the homestead was carved, not out of community property, but out of the separate estate of the wife, upon her death, intestate, leaving