In re Estate of Ogburn

105 Cal. 95 | Cal. | 1894

McFarland, J.

This is an appeal by heirs at law of the deceased from an order granting the petition of H. U. Ogburn, her surviving husband, that certain property be set apart to petitioner as a homestead, and from an order denying a new trial. Two points only áre made by appellants which need to be noticed.

1. It is contended that the declaration of homestead offered in evidence was void, because it describes no property. This contention cannot be maintained. The declaration stated that the family then resided upon the lot and premises sought to be erected into a homestead; and this statement, together with the description which followed, clearly enough designated the premises intended to be claimed as such homestead. This was sufficient.

2. It is contended that the premises did not constitute a homestead, because they were partly occupied for business purposes.

Shortly after the marriage of petitioner and deceased, and when they were without means, his father, in 1866, bought a lot for them in Woodland for one hundred and seventy dollars, which money they afterwards repaid. The lot was thirty-seven feet wide, and one hundred and ninety feet deep, fronting on Main street. They borrowed money and built on this lot a one-story house, thirty-seven feet wide by fifty feet deep. It was all one house; but a partition as high as the ceiling was run lengthwise through the building, dividing it into two nearly equal parts. Petitioner was a tinner, and one side of the house was used by him as a tinshop. The other half was used for ordinary family living purposes, and the wife also did millinery business there. A kitchen was afterwards built to the rear. The whole rear part of the lot was used as a backyard for flowers, shrubbery, drying clothes, stable, chicken-house, etc. The whole property was claimed as a homestead. There was no division of the building above the ceiling.

We do not think that the homestead character of the premises was destroyed, either in whole or in part, by the fact that the husband and wife thus used parts of the building for doing their work as artisans. This work which they did there did not constitute such a pretentious business as to blot out the character of the place as a residence and a home, or to make the latter merely incidental to the former. The case is within the rule of Heathman v. Holmes, 94 Cal. 291; Ackley v. Chamberlain, 16 Cal. 181; 76 Am. Dec. 516; Skinner v. Hall, 69 Cal. 195; Lubbock v. McMann, 82 Cal. 226; 16 Am. St. Rep. 108, and many other cases.

The judgment and order appealed from are affirmed.

Fitzgerald, J., and De Haven, J., concurred.