Furman v. Brewer

The action was brought to quiet the title of plaintiff to the south half of the northwest quarter of a certain section of land in the county of Kings. Judgment was in his favor and the appeal'is by the defendant, Henry S. Brewer, from said judgment.

In August, 1889, Samuel G-. Brewer was the owner of the entire northwest quarter-section, the south half of which is in controversy here, said quarter-section being the community property of Samuel G. Brewer and his wife, Phoebe Brewer. Samuel G. Brewer died on August 29, 1889, leaving a will of which his wife and Samuel A. Brewer, a son, were appointed executors. The fourth clause of said will reads as follows:

“I give and devise all the rest, residue and remainder of my estate, real and personal, of every name and nature whatsoever, owned by me at the time of my death, to my wife, Phoebe Brewer, and my son, Samuel A. Brewer, to be by them held in trust for my sons, Daniel G. Brewer, Samuel A. Brewer, Charles Brewer and Henry Brewer, for the maintenance of my wife, Phoebe Brewer, and our children who may then be less than twenty-one years of age and unmarried, until all of said children shall have attained unto the age of twenty-one years; and I hereby direct and order that when the youngest living child hereinbefore named shall have reached the age of twenty-one years, that my said estate so devised and bequeathed in trust to my wife, Phoebe Brewer, and to my son, Samuel A. Brewer, shall be sold by them or by their successors in trust, and that the proceeds of such sale be divided share and share alike among my sons, Daniel G. Brewer, Samuel A. Brewer, Charles Brewer, and Henry Brewer.”

Said will was probated and a decree of distribution was entered, on May 6, 1892, containing this clause: “To the said

In November, 1897, Phoebe Brewer became the wife of Francis Marion Furman, the plaintiff herein, and, on the 23d of December, 1898, she filed a declaration of homestead upon the said quarter-section.

Certain deeds were introduced in evidence, and certain others were referred to by counsel for the respective parties, showing that, in 1905, Phoebe Furman became the sole owner of the south half of said quarter-section, the land in dispute.

Phoebe Furman died on October 19, 1905, leaving a will in which she bequeathed to her husband the land in question “to have and to hold for his natural life,” and upon his death half thereof to go to her daughter, Ada Harper, and half to her son, Henry S. Brewer, the defendants herein.

The principal question presented for decision is as to the validity or invalidity of the homestead declared by Phoebe Furman (formerly Brewer) upon the property in dispute after her marriage to the plaintiff, the homestead being for their joint benefit. The importance of the controversy thus brought to us lies in the fact that Phoebe Furman, upon her death, left a will whereby she gave to her surviving husband, the plaintiff, a life estate in the property in dispute, with a remainder over to two of her children by her former marriage, one of whom is the appellant here, and that the court found and adjudged, obviously by virtue of section 1474 of the Code of Civil Procedure, that the plaintiff is the owner in fee of said property.

The contention of the appellant is that, inasmuch as at the time of the filing of the declaration of homestead the property was held by her and her children as joint tenants or tenants in common, the homestead is invalid. On this proposition, the respondent contends that the declaration of homestead was filed under the' statute of 1868, relating to homesteads (Stats. 1867-68, p. 116), the first section of which reads:

It is argued by the respondent that the above section has never been repealed by subsequent legislation relating to homesteads, and that, therefore, the declaration of homestead is valid, even if it be true that Phoebe Brewer and her children, the beneficiaries named in the trust clause of the will of the deceased and also referred to in the decree of distribution in the estate of said deceased, are eotenants of the real property upon which the homestead declaration was filed. On the other hand, the appellant contends that the statute of 1868 has been repealed by the subsequent legislation upon the subject of homesteads. (See Civ. Code, sec. 1237 et seq.)

The present law relating to homestead, in all substantial particulars, is as it was enacted by the legislature of 1873-74. (Stats. 1873-74, p. 228 et seq.) There is no express provision in the present law repealing the act of 1868, and, therefore, if the act of 1868 has been repealed, the repeal has been effected by implication arising either from an irreconcilable inconsistency between the law as it now stands, as found in the sections of the Civil Code above named, and the act of 1868, or from an indication irresistibly dedueible from the general tenor of said law that the legislature intended that it should supersede as a scheme for allowing homesteads that which was established by the legislature of 1868. This precise question has never, so far as Ave are at present advised, been passed upon by the higher courts, and it is probable that the proposition has never been put squarely up to those courts. There are comparatively recent decisions, however, which distinctly hold “that a homestead cannot be created upon land held in cotenancy, or tenancy in common, in favor of-one of the cotenants.” (Rosenthal v. Merced Bank, 110 Cal. 198 , 202, [ 42 Pac. 640 ]; In re Carriger, 107 Cal. 618 , [ 40 Pac. 1032 ]; Schoonover v. Birnbaum, 148 Cal. 548 , 549,

In Swan v. Walden, 156 Cal. 195 , [ 134 Am. St. Rep. 118 , 20 Ann. Cas. 194, 103 Pac. 931 ], the grants of three several lots were to Edward Walden and his wife, I/uella Walden, in joint tenancy. The wife filed a declaration on all of two lots, which were conveyed to the parties by a single deed or grant. The court held that the homestead was valid, inasmuch as the whole land held by the husband and wife in joint tenancy was impressed with the homestead characteristic, which she could do as to her own interest, which was her separate property, and which she could do as to her husband’s interest, “since she has the power to declare a homestead upon the husband’s separate property.” The Walden case is differentiated from the Schoonover and other preceding cases, in which the right of a cotenant to impress real property held in cotenancy with the homestead characteristic is denied, .in the fact that in the latter cases, unlike the Walden ease, the cotenants were not husband and wife, the cotenancy being between the husband or his wife and third persons, and consequently the holding of the wife or husband not capable, from the very nature of the tenancy, of being delimited or its limits definitely marked out and fixed. The Schoonover case and the cases followed by it are also to be distinguished from the ease where the husband

The present case comes within the rule of the Schoonover and other cases which it follows and not within the rule established by the case of Swan v. Walden, for here, as the evidence shows, the homestead claimant, when filing the homestead, lived on and had actual possession of the entire tract, of land, including her undivided one-half thereof as well as the undivided one-half which she held in trust. It also differs from all the cases above , named because, as shown, Phoebe Brewer had a beneficial interest in the trust estate.

But it is not necessary for us to decide whether the enactment of the existing code sections resulted in the repeal of the homestead statute of 1868 or whether the decisions so hold, since we are unable to perceive how it can be worked out that Phoebe Brewer and her children, named as beneficiaries in the trust clause of the will of the deceased, and which clause is by reference made a part of the decree of distribution of the latter’s estate, hold the property in cotenancy.

It may first be observed that, since the evidence discloses that all the estate of Samuel G. Brewer, deceased, was community property—that is, acquired during the coverture of Samuel G. and Phoebe Brewer (later Furman)'—it was, of course, not within the legal competency of Samuel G. to dispose of her community interest by testament. This, though, as we construe his will, he neither intended nor attempted to do; but in disposing of that portion of the estate which he had the right to make testamentary disposal of, he made Phoebe Brewer, with their children named in the trust clause of the will, a beneficiary thereof—that is to say, he provided therein that the interest so disposed of should be for her maintenance until the youngest living of their children named as beneficiaries under the trust clause of the will should attain the age of twenty-one years. Her trusteeship was, therefore, coupled with an interest. That, as trustee, she should have exclusive actual possession of the land which constituted the corpus of the trust, we doubt not was the intention of the testator. Indeed, as above shown, the evidence shows that she did

Nor were the children of the deceased, named as beneficiaries, etc., either joint tenants or tenants in common with Phoebe Brewer of the property. “The properties of a joint estate are derived from its unity, which is fourfold: the unity of interest, the unity of title, the unity of time and the unity

There is absolutely no semblance of a joint tenancy in the estate created by the testator in the property or in the whole or any part of the property. Nor was there a tenancy in common thereby created. The estate created by the will is wanting in at least two of the unities essential to constitute it a joint estate, viz., the unity of interest and the unity of possession, and the absence of the latter unity leaves it without the distinguishing characteristic of a tenancy in common. • As seen, the testament or the trust clause thereof expressly provides that, when the youngest of the living children named as beneficiaries shall have attained the age of twenty-one years, the trust property shall be~sold and the proceeds of the sale divided share and share alike between said children. Thus it will be noted that there is no provision that said children should at any time have possession of the property. Of course, they had a vested or present interest in the estate, but the actual enjoyment of such interest was postponed to a future time, not'by possession of the corpus of the trust itself, but by receiving their respective shares of the proceeds realized upon the sale of the property as provided by the will and in the decree of distribution. As a matter of fact, the said children were nearer legatees than devisees, although .up to the happening of the contingency upon which the trust property was to be sold the corpus of the trust would, strictly, be treated as land rather than as personalty. But, however that may be, it is very clear that it was not intended by the deceased that the said children should have actual possession of the trust property at any time, but that such possession should be enjoyed exclusively by Phoebe Brewer until the happening of the condition which would terminate the trust.

As above stated, the evidence does not directly show when the youngest child reached the age of twenty-one years. It is stated in the brief of counsel for the respondent, and not denied by the appellant, that that event occurred in November, 1905. It also appears from the evidence, however, that, on the seventh day of November, 1905, Phoebe Furman (for

The judgment appealed from is affirmed.

Chipman, P. J., and Burnett, J., concurred.