The premises in San J osé were at one time the actual residence of the parties, but they subsequently removed therefrom—the wife going to reside at San Francisco with her brother, where she continued for several years, and the • premises being in the meantime leased to others and subsequently conveyed by the husband in fee; it was only after this that the wife filed a declaration, in which she asserted a right of homestead in the premises. We .held in Gregg v. Bostwick, 33 Cal. 220, that in order to impress the character of a homestead upon"premises they must be such in fact by occupation at the time the declaration is filed—“ must be *60resided upon and used as such at the time the declaration is made.” Under the circumstances appearing, the declaration of the wife, claiming the premises in controversy as a homestead, cannot be supported.

Judgment and order denying a new trial reversed and cause remanded.