¶1Respondent's petition for a rehearing of this cause having been denied by the court, I cannot allow the occasion to pass without expressing my dissent from the conclusion of the Department upon the point principally considered in the opinion of Justice Thornton.
¶2If the decision of the court had. been rested upon the proposition that under the homestead laws of California Mrs. Baker, on the death of her husband, became by right of survivorship the sole and exclusive owner, as against her children, of the entire estate in the lands *343covered b)' their joint declaration of homestead, — irrespective of its value at the time of such declaration, or of her husband’s death, — I might not have dissented from that view.
¶3But the judgment and order of the superior court are reversed, and the cause is remanded for a new trial, to be had in accordance with the views expressed in the opinion, which thereby become, and must remain, the law of the case.
¶4Amongst the views so expressed is one from which I feel constrained to express my dissent.
¶5It is held — as I understand the opinion — that Mrs. Baker, by mere force of the act of Congress of 1866 granting to the cit}'' of San Francisco the outside lands, and independent of any right accruing to her under our homestead laws, became entitled to a conveyance from the city of all the lands left in her possession by the death of her husband, to be held by her in her own right, to the exclusion of her. children. This conclusion is based upon a narrow and literal construction of the clause of the act requiring the city to convey the lands granted to the parties in bona fide actual possession thereof by themselves or tenants at the date of the passage of the act. It assumes either that the person lawfully in possession, by himself or tenant, at the date of the passage of the act, was the sole object of the bounty of the government, without regard to the character or capacity in which he had obtained or held the possession; or it assumes that when John H. Baker died, in 1863, leaving his widow and minor children in possession of the land in controversy, he had no estate in the land to which they could succeed, and that the possession so devolved upon her as head of the family was held by her absolutely in her own right, and not in any representative capacity.
¶6If this is true, — if the children of John H. Baker inherited no interest in this land from him when he died, — it must be equally true that if their mother also had *344died before the passage of the act of 1866, they would have inherited nothing from her. What, then, would have happened ? Being minors and orphans, they and the land would naturally have passed into the charge and custody of a guardian, who would have been found in the bona fide actual possession of the land, as head of the family, at the passage of the act of 1866. Such guardian would have been just as clearly within the literal terms of the act in the case supposed, as Mrs. Baker actually was in the case as it is; and if the representative character in'which she held the possession, and her trust relation to her children, must be ignored, so must the representative character and trust relation of the guardian have been ignored; and on precisely the same reasoning which sustains the exclusive right of Mrs. Baker to receive a conveyance of the land, it must have been held that the guardian was entitled to a conveyance of the land, to the exclusion of his wards. Bub I venture to say that no court would have carried the principle here decided to this its logical and necessary consequence. In my opinion, it would have been held, in the case supposed, that it was the duty of the guardian to obtain a conveyance of the lands from the city, and that he would hold them, when so conveyed, in trust for his wards, according to their several and respective rights as heirs and successors of their deceased parents. And, upon the same grounds, I am of the opinion that Mrs. Baker, when she obtained a conveyance of these lands (considering the matter without reference to her rights under the homestead law), held them in trust for her children, according to their respective rights as heirs of her deceased husband.