Furtsch v. Furtsch

DESMOND, J., pro tem. This is an appeal from an order in probate by which the court set apart, for the benefit of the widow of George Furtsch, and as a homestead, certain real property mentioned in the inventory of decedent’s estate.

Appellant claims that Mrs. Furtsch’s petition did not contain facts constituting a legally sufficient application for a declared homestead within section 660 of the Probate Code. He also claims inconsistencies in the findings of fact, and further, that the conclusions of law and resultant order are not sustained by the findings.

The appeal comes before us upon the judgment roll alone. The rules governing such a situation were set forth quite recently in Chow v. City of Santa Barbara, 217 Cal. 673, 680 [22 Pac. (2d) 5], where the following appears: “On such an appeal the power of the reviewing court is necessarily restricted. In such case ‘the findings are conclusively presumed to be supported by the evidence; furthermore it is elementary that they are to receive, if possible, such a construction as will uphold rather than defeat the judgment thereon; they are to be liberally construed and, -if possible, any ambiguity or inconsistency will be resolved in favor of sustaining the judgment ’. . . . The judgment may be reversed only upon some fatal error appearing on the face of the judgment-roll. ... On appeal on the judgment-roll alone every presumption and intendment is resolved in favor of the regularity of the proceedings in the trial court. ... A [3]finding capable of two reasonable constructions must be interpreted according to the one that sustains the judgment, and a finding must be given such a construction, if a reasonable one, as will support the judgment. ’ ’ Authorities for the foregoing rules appear in the cited case.

With these limitations upon our powers of review, and considering the grounds of appeal set forth, we have examined the petition, the findings, the conclusions of law, and the order based thereon, with the result that in our opinion the order should stand affirmed.

The petition, with its annexed copy of a declared homestead, we find presented sufficient facts for the consideration of the trial court.

It appears from the findings in this case that the petitioner, Mary W. Furtsch, and the decedent, George Furtsch, were married in Los Angeles County on July 15, 1919; that they lived together continuously thereafter, as husband and wife, until the death of George Furtsch on June 13, 1938; that a declaration of homestead upon Lot 71 of the Wiesendanger Tract was recorded October 2, 1934, in the records of Los Angeles County, during the marriage of the parties and while they were residing upon the property. It was further found “that said real property was first viewed by the petitioner and the decedent shortly before June 27, 1919, and the parties at that time agreed that the said real property was desirable for community purposes, and that they would each contribute their separate funds toward the purchase of the property. That the grant deed to the property bears the date June 27, 1919. That said deed was recorded August 6,1919. That the recorded instrument was mailed to the deceased from the office of the County Recorder of Los Angeles County on August 13, 1919. That the said real property was occupied as a homestead by the decedent and his family, the petitioner herein, at the time of his death. ’ ’