Volume 59 — California Appellate Reports

<p>[1] Partition—Probate Homestead—Suit Against Owners of Fee. Where property is set aside as a probate homestead in favor of the widow and a minor son of the decedent, and the remainder after the life estate is vested in said son and certain other persons, said widow and minor son cannot maintain a suit in partition against such other persons, notwithstanding the widow has ceased to reside upon the property, but rents the same to others, and said son has reached his majority.</p> <p>[2] Id.—Pleading —• Insufficient Complaint — Waiver — Appeal.— Where such facts, showing that the plaintiffs are neither joint tenants nor tenants in common with the defendants, appear upon the face of the complaint, a cause of action is not stated, and such objection is not waived by failure to make it in the trial court, but may be taken advantage of for the first time upon appeal.</p> <p>[3] Estates of Deceased Persons—Probate Homestead—Loss by Nonoccupancy.—A widow, to whom there has been set apart by decree of the superior court a homestead for life out of the separate estate of her husband, does not forfeit that homestead if she fails to reside continuously thereon, but holds possession of the property through her tenants.</p> <p>1. Partition of the homestead, notes, 56 L. B. A. 33; 4 L. R. A. (N. S.) 786; 27 L. E. A. (N. S.) 550.</p> <p>3. Failure of widow to occupy homestead as affecting her rights therein, note, 12 Ann. Cas. 786.</p> <p>Widow’s right to convey, lease or encumber the homestead during the minority of her children, note, 10 L. E. A. (N. S.) 787.</p> <p>[4] Id.—Forfeiture—Abandonment—Joinder in Partition Suit.'—A forfeiture or abandonment of such probate homestead is not evidenced by the joinder of the widow with the owner of an undivided interest in the fee, in seeking a partition of the homestead property.</p>

<p>[1] Conversion—Issues—Evidence—Findings.—-Where the complaint in an action to recover possession of a diamond ring or the value thereof in case delivery cannot be had alleges that the defendants, a storekeeper and one of his salesmen, came into possession of the ring and retained possession thereof, and the answer of the defendants admits they came into possession of plaintiff’s ring, but alleges that it was returned to plaintiff by the defendant storekeeper, the only issue to be tried is whether the ring was returned, and if there is ample testimony to support the finding of the jury that the ring was not returned, the judgment against the defendant salesman cannot be disturbed for want of evidence to support it.</p> <p>[2] Id. — Impeachment — Immaterial Matters. — In such action, plaintiff and his wife both having testified on cross-examination that they were married in a certain state, the court properly refused to permit the latter to be impeached by showing that in a trial between other parties she had testified that she and the plaintiff were married in this state. A witness cannot be impeached on immaterial matters.</p> <p>[3] Id. — Delivery of Bing — Time — Impeachment.—A witness for the defense having testified that he was in the defendants’ store on a certain date and that he saw the defendant storekeeper deliver a diamond ring to the plaintiff, and he having fixed that date by reference to a sale of oil stock made on that day to one of said defendant storekeeper’s employees, the testimony of said employee that he made but one purchase of oil stock from said witness and, he having produced the check given in payment therefor, which check bore a' date about two months subsequent to that on which defendant storekeeper’s witness had stated he was in said defendant’s store, that he thought the cheek was dated the day of the purchase, was admissible, in rebuttal, as tending in some degree to discredit the testimony of said witness for the defense that he was in said defendant’s store on the date testified to by him.</p> <p>[4] Id.—Burden of Proof—Instructions.—The court having fully and correctly instructed the jury as to the burden of proof, the defendants were not prejudiced by the court’s refusal to further instruct the jury that the “burden is upon the plaintiff to prove his ease to a moral certainty; that is, by that degree of proof which ordinarily produces conviction in an unprejudiced mind.”</p> <p>[5] Id. — Beputation of Plaintiff — Impeachment — Insufficient Knowledge,—Notwithstanding the witness produced by the d§fendants for the purpose of impeaching tho plaintiff as a witness testified that he knew plaintiff’s “reputation in the community in which he lives for truth, honesty, and integrity,” and that it was bad, on cross-examination the witness having testified that he did not (know where plaintiff lived, and never did know where he lived, on motion of counsel for plaintiff his testimony was properly stricken out.</p> <p>[6] Id.—"General” Reputation — Incompetent Testimony. — Where a witness produced by the defendants for the purpose of impeaching the plaintiff as a witness is not asked if he knows the general reputation of the plaintiff for truth, honesty, and integrity, the word “general” being omitted from all questions upon the subject, the objection that the testimony thus sought to be elicited is incompetent should be sustained.</p> <p>[7] Id.—Sufficiency of Foundation—Discretion of Trial Court.— The question as to whether a sufficient foundation has been laid to warrant a witness in expressing an opinion as to the general reputation of another for truth, honesty, and integrity is a matter especially committed to the judgment of the trial court, and unless that discretion is shown to have been clearly abused, there can be no prejudicial error. It is not an abuse of discretion to require something more than merely that the impeaching witness knows the other’s place of business and his reputation in the vicinity of such place.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>[1] Wills—Construction—Bequest to Persons “Living at My Decease”—Lapse.—A provision in a will devising and bequeathing the remainder of the testatrix’s estate “to each of the following named persons as may be living at my decease, their heirs and assigns respectively” (the names of the persons then being given) will not be construed as giving the heirs of one of said named persons the right to be substituted for that person where the latter predeceased the testatrix, but the provision in such will in favor of that person lapses by reason of her death during the lifetime of the testatrix.</p>

<p>[1] Husband and Wife—Conveyance to Wife—Promise to Reconvey —Fraud—Intention—Equity.—Where a husband conveys property to his wife upon her express promise to reconvey to him upon his demand therefor, and such promise is made without intention to perform, the husband is entitled to the property by reason of the wife’s fraud. If the promise is made in good faith, then by reason of the confidential relation of husband and wife, equity will enforce the promise, though it was oral.</p> <p>[2] Id.—Reliance upon Promise—Pleading—Appeal.—In an action to set aside conveyances made by the plaintiff to Ms wife, an allegation that the conveyances were made to the wife “upon her express promise to reconvey to plaintiff upon his demand” is a sufficient averment that the plaintiff believed and relied on the promise as against a general demurrer or an objection raised on appeal.</p> <p>[3] Id.—Action to Set Aside Conveyance—Parties.—In such an action, where the heirs of the deceased wife are made the defendants, and they defend as heirs, merely, their rights are in nowise prejudiced by a ruling of the trial court denying their motion to make the administrator of the deceased wife’s estate a party to the action.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Ezra Cox for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p>