430

the land on which the same is situated, selected as in this title provided": Civ. Code, sec. 1237. There is nothing to be found in the above section or elsewhere in the code that can properly be construed into a limitation of the area of the homestead as applied to property here in question. The homestead declared upon may embrace an area even greater in value than the five thousand dollar homestead exemption allowed by section 1260 of the Civil Code. In such a case the homestead is not void, but proceedings must be had under section 1245 et seq. of the Civil Code for the appraisement and division or sale of the property. Let the area be ever so large, no division even can be had in court except for excess in value. A careful examination of all the cases in this state wherein it has been held that the homestead declaration covered property that could not be properly treated as a part of the homestead will disclose that in every such case the property excluded from the homestead was either occupied as the home of some person other than the homestead claimant, or had on it a house in which an independent business was carried on, or was devoted to some other purpose entirely foreign to and inconsistent with its use as a homestead. In many cases in this state hundreds of acres of land in the country, fenced and cross-fenced, have been held to be properly embraced in the homestead. In one case (Ornbaum v. His Creditors, 61 Cal. 455) a homestead was declared upon eleven hundred acres of land, three hundred acres of which was inclosed with a fence, and the rest, uninclosed, used by the homestead claimant in conjunction with his neighbors as grazing land, the dwelling-house being situated on the inclosed part, and it was held that the whole property was impressed with the character of a homestead. It was also held that the fact that title to much of the uninclosed portion of the land was subsequently acquired by the claimant from third parties who had pre-empted the same did not affect the homestead. The court said in that case: "Now it is objected that Ornbaum had no actual residence on the land outside of his inclosure at the time the declaration of homestead was filed. His residence within the inclosure was sufficient upon the facts as found. He had title to and exercised control over all the land. The evidential facts inserted in the findings of fact (we refer to those as to the neighbors grazing the uninclosed portion, and the taking up of pre-emption claims on the land) have no proper place there, but they, with the other facts found, and which follow them in order in the findings, sustain the judgment of the court." The fact that the land here

was desert, and presumably unfit for agricultural purposes, is no good reason why it could not be claimed as and with the preemption claim devoted to the uses of a homestead until it could be reclaimed and made fit for grazing or some other agricultural purpose. The question of "use" as applied to the homestead relates always, as will be seen from an examination of the cases, to the use of the property as a home. If 431 it is used as a home, or as a part of the home place, it is immaterial whether it is farmed, grazed, or devoted to no agricultural use at all. The material thing to be shown is, that it is devoted to use as a home for the claimant and his family, and that no part of it is applied to any use inconsistent therewith. It is plain that land may be used to live on solely without being devoted to any other use at all and still be a homestead.

The interest in the water rights, ditches, etc., though it was but a partial interest in an entire water system held jointly or in common with others, yet as it was obtained specially for use upon the lands claimed as a homestead, and was necessary and appurtenant thereto, it became part and parcel of the homestead: Fitzell v. Leaky, 72 Cal. 477, 46 Pac. 198. No part of the entire property can be subjected to execution in the absence of a showing that it exceeds in value the statutory exemption. The homestead was not abandoned as to any portion of the desert claim by the deed of the plaintiff to his wife in her lifetime of the pre-emption claim. For section 1243 of the Civil Code provides: "A homestead can be abandoned only by a declaration of abandonment, or a grant thereof, executed and acknowledged: 1. By the husband and wife, if the claimant is married." A deed by the husband alone is not a grant executed and acknowledged by the husband and wife: Freiermuth v. Steigleman, 130 Cal. 392, 80 Am. St. Rep. 138, 62 Pac. 615.

Nor did any subsequent deed of the husband of any moiety or part of any portion of the entire property have the effect to abandon or nullify the homestead exemption as against the execution in question. When the wife died, the homestead, so far as it related to the desert claim, having been selected from the community property, vested absolutely in the surviving husband, the plaintiff herein, and it continued free and exempt from all previous debts, including plaintiff's debt theretofore incurred to the bank: Code Civ. Proc., sec. 1474. The sale by him of any interest, joint or several, in any part or parcel of the property thereafter could have no effect upon his right to claim this exemption. He had the right thereafter to deal with the property

any way he chose without regard to his previous debts. So far at least as those previous debts were concerned, the property was exempt, and no sale 432 of any mere interest in the property could waive that exemption, and of course his grantees took title from him free from all lien or liability against the property on account of such debts. The cases like Carroll v. Ellis, 63 Cal. 440, in which it has been held that a homestead should be treated as abandoned where the husband and wife joined in a deed of an undivided interest in the property to a third person, are not governed by the same principle as this case. In those eases both spouses were living and joined in the deed. Here one of the spouses was dead, and the deed of the undivided interest was made by the surviving spouse alone. As said in Dickey v. Gibson, 113 Cal. 31, 54 Am. St. Rep. 321, 45 Pac. 16: "By the death of the first wife the homestead property vested absolutely in the surviving husband, Samuel Gibson. As far as the legal title is concerned, it vested in him as fully and perfectly as though no homestead had ever been carved out of it. The limitations and immunities which accompanied the enjoyment of the property under such title modified, not the title, but its enjoyment, and were only such as the statute imposed." The interest of plaintiff in the property, after his wife's death, became something different and greater than it was in her lifetime. He had then not only the absolute title, but also the absolute right of exemption in the property from all former debts, as well as the right to dispose of it in any way he saw fit.

By reason of their claims against plaintiff the defendants had no interest whatever in the property, as it was absolutely exempt from such claims. They could not be injured nor could any right of theirs be prejudiced by any disposition that the plaintiff might see fit to make of the property. Therefore, there is no good reason for extending the doctrine of those cases which hold that a homestead cannot affect an undivided interest in land, and that a subsequent sale of such interest is an abandonment of the homestead, to a case like this where the undivided interest has not been conveyed until after the death of one of the spouses, and the whole title to the homestead has "vested absolutely" in the survivor.

The facts found are sufficient to warrant a decree as demanded by plaintiff.

The appeal of defendants. From what has already been said it is apparent that the interest in the desert claim conveyed 433 to Jenks was at all times, and still is, exempt from defendants' judgment.

The appeal of defendants should be dismissed. The judgment should be reversed upon plaintiff's appeal, and the court below should be directed to enter a decree upon the findings forever enjoining and restraining the defendants from selling any portion of the property under the judgment or execution in question.

Chipman, C., and Smith, C., concurred.

For the reasons given in the foregoing opinion the appeal of defendants is dismissed, the judgment is reversed upon plaintiff's appeal, and the court below directed to enter a decree upon the findings forever enjoining and restraining the defendants from selling any portion of the property under the judgment or execution in question.

Henshaw, J., Lorigan, J., Shaw, J.

What Property may be the Subject of a Homestead is discussed in the monographic note to Pryor v. Stone, 70 Am. Dec. 344-353. It has been held that capital stock of a ditch company is not exempt from levy and sale on the ground that the ditch is used to convey water to land entered under the homestead laws: Struby-Estabrook Mercantile Co. v. Davis, 18 Colo. 93, 36 Am. St. Rep. 266.

The Abandonment of Homesteads is the subject of a recent extended note to Burkhardt v. Walker, 102 Am. St. Rep. 388-412.

ESTATE OF SEAMAN.

[146 Cal. 455, 80 Pac. 700.]

WILLS Statutory Requirements must be Complied with.-The right to make a testamentary disposition of one's property is purely of statutory creation, and is available only on compliance with the requirements of the statute. The mode prescribed is the measure for the exercise of the right, and an heir can be deprived of his inheritance only by compliance with this mode. (p. 55.)

WILLS, Execution of, Intention of the Testator.-For the purpose of determining whether a will has been properly executed, the intention of the testator in executing it is entitled to no consideration. For that purpose the courts can consider only the purpose of the legislature as expressed in the language of the statute, and whether the will, as presented, shows a compliance with the statute. (p. 55.)

WILLS.-The Provision that a Will must be Subscribed at the End Thereof Requires the testator's name to be written at the termination of the testamentary provisions which he makes in the instrument. (p. 57.)

WILLS.-The Requirement that the Testator's Name shall be Subscribed at the End of a Will is not Satisfied by having that

name written at any place after the termination of the written matter, irrespective of the relation which such place bears to the concluding portion of the will. His name need not be written in immediate juxtaposition with the concluding words of the instrument, but it must be so near thereto as to afford a reasonable inference that he thereby intended to indicate an authentication of the instrument as a completed expression of his testamentary purpose. (p. 57.)

WILLS.-The Purpose of a Statute in Requiring the Testator's Signature to be Subscribed at the End of a Will is not only that it may thereby appear on the face of the instrument that the testamentary purpose therein expressed is completed, but also to prevent any opportunity for fraud or interpolations between the written matter and the signature. (p. 58.)

WILLS, Failure to Subscribe at the End-Absence of Fraud.Where the subscription of a testator to his will is not at its end, it is not material that there is no fraud shown or charged. (p. 59.)

WILLS, Extrinsic Evidence of Intention to Execute.-Whether a testator intended to execute a will in conformity with the requirements of the statute cannot be shown by parol or extrinsic evidence. If he subscribed at a place which, as a matter of law, is not at the end of a will, such evidence is not admissible to prove that he intended to subscribe it at the end. (p. 60.)

WILLS, What not Subscribed by Testator at the End.-A document purporting to be a will written upon a printed blank of four pages having an unfilled attestation clause on the third page and of which the fourth page is only a blank space for the indorsement when filed, and which is signed by the testator's name, and that of two witnesses beneath the scrivener's title and blank form for dating and filing, is not subscribed at the end, and cannot be admitted to probate under a statute requiring every will, other than nuncupative or holographic, to be subscribed at the end thereof by the testator, in the presence of two attesting witnesses, each of whom must, in his presence and at his request, sign his name as a witness at the end of a will. (p. 60.)

Phil Bruton, for the appellants.

George R. Lovejoy, G. V. Martin, N. A. Hawkins and E. M. North, for the respondents.

458 The COURT. A document purporting to be the last will and testament of Henry Seaman, deceased, was presented to the superior court, and an application for its probate was denied upon the ground that it had not been properly executed, in that the name of the testator was not subscribed at the end thereof. From the judgment thus entered the present appeal has been taken.

The instrument was written upon a printed form or blank consisting of four pages folded in the middle like ordinary legal cap. Upon the upper portion of the first page was a 459 printed heading and introduction, occupying about one-fourth of the page; in the printed form the remainder of that page and the