In Re Estate of Faber , 168 Cal. 491 ( 1914 )

This is an appeal from an order setting apart to Mildred Faber, the widow of decedent, a parcel of land belonging to the estate, as homestead.

The respondent moves to dismiss the appeal on the ground that no sufficient notice of appeal has been filed. The opening part of the notice of appeal shows the defect relied on. It is as follows: "Notice is hereby given, pursuant to section 953a of the Code of Civil Procedure, to all persons concerned that the undersigned Mary E. Suffal, desires to appeal and does hereby appeal to the supreme court from the order," etc. We deem this a sufficient notice in substance, although it is not in good form. It differs from the notices of appeal held insufficient in Lent v. California etc. Assoc., 161 Cal. 719, [121 P. 1002]; Boling v. Alton, 162 Cal. 299, [122 P. 461], and Marcucci v.Vowinckel, 164 Cal. 695, [130 P. 430], in this, that it expressly states that Mary E. Suffal "does hereby appeal," from the order, etc., describing it with sufficient accuracy. The notices in the cases cited did not contain any equivalent language, but were plainly phrased for notices to the clerk to prepare the transcript, as provided by section 953a This notice expressly states that the petitioner does appeal, and it is therefore good as a notice of appeal under section 941b of the Code of Civil Procedure. The fact that it is drawn so as to serve the double office of a notice of appeal and a notice to the clerk, under section 953a, as appears from the subsequent parts of the notice (not above quoted), does not destroy its effect as a notice of appeal, nor is the statement that it is given "pursuant to section 953a" fatal to its sufficiency as a notice of appeal. That phrase may properly be deemed applicable, solely to the subsequent part constituting a notice to the clerk, or as mere surplusage. It could not have misled the parties interested and, under the rule prevailing since the enactment of section 941b, such faults do not vitiate an appeal. (Southern Pac. Co. v.Superior Court, 167 Cal. 250, [139 P. 71].)

The motion to dismiss the appeal is denied.

The main objection to the order appealed from is that the land set apart as a homestead had no building or structure upon it that could be used as a dwelling house, either at the time of decedent's death, or thereafter up to the time of making the order. We think this objection is well taken. The land consisted of a lot in the city of San Diego. It had no improvements upon it, except two small buildings which the petitioner herself designated as "shacks." One of them was scarcely large enough to inclose an ordinary buggy, the other was used as a garage. The petitioner testified that neither of them was fit for a dwelling place.

The question of the power of a court to set apart such property as a probate homestead is settled by the decision in Estate ofGallagher, 134 Cal. 96, [66 P. 70]. In that case the property involved was farming land upon which the decedent and his wife, the petitioner, had at one time resided in a house situated thereon. This house, some two or three years before his death, was destroyed by fire. From that time until his death there was no building upon the land that could be used as a dwelling and the decedent and his wife resided elsewhere. She offered to prove that if the court should set off the land to her as a homestead she would erect thereon a dwelling house and reside in it. This court held that this testimony was properly rejected. Upon the merits, it was decided that the authorities in this state establish "the rule that a probate homestead cannot be carved out of a tract of naked agricultural land having upon it no dwelling house or qualities of a home," and that the court below was right in refusing to set apart the land as a homestead. This is in harmony with the declaration in Estate of Noah, 73 Cal. 593, [2 Am. St. Rep. 834, 15 P. 292], that the superior court "would be justified in refusing to set apart land as a homestead, unless it were made to appear that there was thereon an edifice that could be used as a dwelling." (See, also, In re Sharp, 78 Cal. 485, [21 P. 182].)

The same principle applies here. The lot in question was no more suitable for a home than was the farming land applied for in the Gallagher case. The purpose of the widow, in that case, to build a dwelling on the land, if it had been awarded to her, was declared to be insufficient to authorize such award. There is no suggestion in the case at bar that the petitioner intends ever to build a dwelling house on the lot or to occupy it as a home. There is evidence tending to show that the decedent intended to build an apartment house on the lot and to live in one of the apartments after the house was erected, that preparatory to carrying out this intention, he had, some three or four months before his death, removed from the lot a small dwelling house thereon and that, shortly prior to his death, he was endeavoring to arrange for the borrowing of sufficient money with which to build the house and was having plans therefor drawn by an architect. But it also appeared that these plans were conditional upon the uncertain event of his ability to borrow the money necessary for that purpose. No definite arrangement had been made therefor. This may have been entirely immaterial in any event, but it is, at all events, not sufficient to show that the lot was in any legal sense the residence of the decedent or capable of being used as a residence at the time of his death. It remained in the same condition up to the time of making the order. An unexecuted and conditional intent to fit a place for residence, such as here appears, is not sufficient to justify a court in setting it apart as a probate homestead under section 1465 of the Code of Civil Procedure. The case cannot be distinguished from the Gallagher case above cited so far as that point is concerned. It follows that the court erred in setting apart the property to the petitioner as a homestead.

Some question arose upon the trial concerning the character of the property, whether it was community property or separate property of the decedent. As there may be another trial below, we deem it advisable to notice a ruling upon the admission of evidence upon the subject. The claim of petitioner was that the money with which the decedent purchased the lot was earned by him while he was residing in the city of Constantinople in Turkey, after her marriage, and that therefore it was community property. The contestant, on the other hand, claimed that the funds which paid for the lot were obtained by him by descent from his brother and were his separate estate. The contestant endeavored to prove that, under the law of Turkey, there was no community property and that all property accumulated in Turkey by the husband became his separate estate. She called a witness who testified that he had been a factor engaged in selling and buying property in Smyrna, which is in the empire of Turkey, that the law of Turkey required that he should be licensed to carry on that business, that he held such license and that in order to hold the same it was necessary that he should be familiar with the laws of Turkey governing property rights, both real and personal. Thereupon he was asked whether or not he was familiar with the laws of the empire of Turkey regarding property rights. The court sustained an objection to this question and refused to allow him to testify further on the subject, basing the ruling upon the proposition that the laws of a foreign country cannot be proven by the testimony of a witness who was not engaged in the practice of law therein. In this we think the court erred. Section 1902 of the Code of Civil Procedure provides that "the oral testimony of witnesses skilled therein is admissible as evidence of the unwritten law of a sister state or foreign country." It does not declare that such witness must be engaged in the practice of the law in such country or as a professor of law therein. It is sufficient if it appears that he was skilled therein. The witness in question testified that it was his duty as an officer to become familiar with the laws of Turkey regarding property rights, both real and personal. He was not allowed to proceed to testify whether he was familiar with such laws or to testify concerning the law itself on the subject in question. We think this testimony was admissible. If it should appear that he was skilled therein, the objection that he was not a lawyer, or a professor of law, would go to the weight of his testimony and not to its competency.

The order appealed from is reversed.

Sloss, J., Henshaw, J., Lorigan, J., and Melvin, J., concurred.