HALL, J. —

This is an appeal upon the judgment-roll from a judgment in favor of defendant in an action brought by plaintiff to quiet title to a piece of real estate in the possession of defendant, and situated in the city of San Jose.

From the record it appears that the property in dispute had been the separate property of one Nancy J. Packard, and at her death was the homestead of said Nancy J., and her husband, B. F. M. Packard, by virtue of a declaration made by her in due form, but was subject to the lien of a mortgage given to plaintiff by said Nancy J. and said B. F. M. Packard to secure a promissory note executed by the said Packards to plaintiff.

Plaintiff deraigns his title through a sale made by the administratrix of the estate of said Nancy J. Packard, deceased, to plaintiff, under the order of the probate court, to pay the debts of said deceased, consisting of the duly allowed claim of plaintiff, founded upon said note and mortgage. The probate proceedings were regular in form, but it nowhere appears in any of such proceedings that the property sold, which was all the property appraised in said estate, was a homestead.

Defendant deraigns title to the premises through mesne conveyances from B. F. M. Packard, the surviving husband of Nancy J. Packard, deceased.

The court below held that the title derived from the surviving husband prevailed as against the title derived from the probate sale, and we think this correct.

Upon the death of either spouse the homestead selected from the community property, or from the separate property of the party making the declaration, or joining therein. vests absolutely in the survivor. (Code Civ. Proc., sec. 1474.)

The survivor in such case takes his title by operation of law, and no order of court is necessary to perfect his title. ( In re Ackerman, 80 Cal. 208, [13 Am. St. Rep. 116, 22 P. 141]; Sheehy v. Miles, 93 Cal. 288, [28 P. 1046]; Estate of Fath, 132 Cal. 609, [ 64 P. 995]; Vandall v. Teague, 142 Cal. 471, [ 76 P. 35]; Saddlemire v. Stockton Sav. and Loan Soc., 144 Cal. 650, [ 79 P. 381].)

Neither can his title thus acquired be affected by subsequent orders of the probate court. ( In re Ackerman, 80 Cal. 208, [13 Am. St. Rep. 116, 22 P. 141]; Bollinger v. Manning, 79 Cal. 7, [21 P. 375]; Estate of Young, 123 Cal. 337, [55 P. 1011]; Estate of Fath, 132 Cal. 609, [ 64 P. 995]; Saddlemire v. Stockton Sav. and Loan Soc., 144 Cal. 650, [ 79 P. 281].) The order of the probate court, authorizing the sale of the premises, only operated upon the title then remaining in the estate of the decedent, which was nothing. ( Vandall v. Teague, 142 Cal. 471, [ 76 P. 35].)

If there was any question as to the validity of the homestead, the purchaser at the probate sale would be in a position to litigate such question as against the claimant under the homestead, but no such question is raised in this case. The homestead is conceded to have been valid.

Appellant's contention virtually is that the order for the sale of the premises is a judicial determination that no valid homestead existed upon the property, and cannot be collaterally attacked. A like contention was made as to the force and effect of an order setting apart a probate homestead to the widow and the minor children of the decedent in Saddlemire v. Stockton Sav. and Loan Soc., 144 Cal. 650, [ 79 P. 381], and the court sustained the validity of the title of the surviving widow to the homestead selected by the husband, which vested in her at his death as against any title in the minor children derived from the order of the probate court setting apart the premises as a homestead for the use of the family of the deceased, although the petition to set apart the premises was filed by the widow, and prayed the court to set aside the premises for the use of the family of deceased, and named the widow and minor children as constituting such family.

The case of Ions v. Harbison, 112 Cal. 260, [44 P. 572], relied on by appellants, though in a part of its facts like the case at bar, in very essential matters is quite different. In Ions v. Harbison, the surviving husband was the administrator, and petitioned for the sale of the homestead premises without disclosing its homestead character, and under the order thus obtained sold the property to defendants, received the money, and applied the same to the payment of the note and mortgage on the premises, executed by himself and wife, and the funeral expenses and costs of administration incurred by himself. Upon this state of facts it was held that he and his grantee, with full notice of the facts, were estopped from questioning the title of the purchaser at the probate sale. No such facts exist in the case at bar. The fact found by the court that the surviving husband "neglected and refused" to administer upon the estate of his deceased wife does not estop him from claiming the homestead that vested in him on her death. There being no estate save the homestead, there was no estate requiring administration. In fairness to appellant it must be said that there is some language in the case just referred to, concerning the effect of the order of sale, which seems to support the contention of appellant, but we think a careful examination of the case shows that the real point of the decision is that, under the facts of the case, the surviving husband, and his grantee with notice, were estopped from questioning the title conveyed by the husband as administrator. At any rate the later cases herein cited establish the principle that must govern this case.

The judgment is affirmed.

Cooper, J., and Harrison, P. J., concurred.