De Etcheborne v. Auzerais , 45 Cal. 121 ( 1872 )

By the Court:

1. Upon looking into the will of Sunol we are of opinion that the devise to the executors included the homestead and carried with it the authority to sell it, if its sale should become necessary.

2. The acceptance by Mrs. Sunol of the devise in her favor, if the fact be that she did accept it, would operate to estop her, or her grantee,.the plaintiff in this action, from asserting her title to the homestead as' against the executors, or Auzerais, the defendant here, who derives his title from the executors. This estoppel is, however, one of equitable cognizance, and it not having been relied upon by the defendant in pleading, though he had an opportunity to plead it, it results that it could not, for want of the requisite pleadings, have been properly considered or determined at the trial.

Order affirmed.