203 P. 106 | Cal. | 1921
This appeal is from a decree of final distribution wherein the trial court, over the objection of the appellant, distributed the whole of the estate of the decedent as having been his separate property during his *604 lifetime. Decedent died in Los Angeles County, California, where he had lived since his removal to California from the state of Iowa in or about the year 1894. Prior to his residence in Iowa he had lived in Wisconsin for a number of years where, in the year 1878, he had married Naomi Nickson, who thereafter lived with him as his wife in Wisconsin, in Iowa, and in California up to the time of his death. Both parties to this marriage had been married before and each had children of such prior marriage, Naomi having two daughters, Lillie Watson and Mrs. Minnie L. Clayton, the latter being the contestant and appellant herein. John Nickson had by his prior marriage five sons, J.W. Nickson, T.J. Nickson, C.D. Nickson, Samuel S. Nickson, and Harry S. Nickson. There were no children of this second marriage. Some time prior to his death John Nickson made his last will in which he declared that the whole of his estate was his separate property, which he therein proceeded to dispose of by making certain specific legacies to certain of his said children and stepchildren. He then devised all of the remainder of his property to his wife, Naomi Nickson, for and during her natural life, with the right to the total net income thereof, and also with right that in the event of such net income not being sufficient for her reasonable care and support, she might use so much of the principal estate as might be necessary for such purpose. Upon her death the remainder of said estate was to be divided among four of his said sons, share and share alike. John Nickson died on December 15, 1917. His said will was offered for probate shortly thereafter, and having been duly admitted to probate the administration of his estate proceeded until the same was ready for distribution in September, 1919, when the executor filed his final account and petition for distribution of said estate, wherein he averred that "the whole of the said estate is separate property of said deceased" and prayed for its distribution according to the terms of the last will of the decedent. In the meantime his widow, Naomi Nickson, had been declared incompetent and her daughter, Mrs. Minnie L. Clayton, had been appointed her guardian; and the latter, on October 8, 1919, appeared on behalf of her said mother and objected to the distribution of said estate as prayed for by said executor, alleging that the whole of the decedent's property and estate was community property of himself and his *605 said wife, Naomi Nickson, and praying that the same should be distributed one-half to said Naomi Nickson, as her share of the community property, and the balance thereof according to the terms of said last will of the decedent. The contest thus created came on for hearing before the court and a large amount of testimony was offered thereon. At the conclusion of such hearing the court made its findings in words and effect "that all of said property and every part thereof was at his decease the separate property of said John Nickson, deceased, and that no part thereof was or is community property of said John Nickson and Naomi Nickson." The court accordingly by its decree distributed the whole of said property and estate according to the terms of the last will of said deceased. From this decree the appellant, Minnie L. Clayton, prosecutes this appeal.
It is an undisputed fact upon this appeal that all of the property which John Nickson undertook to dispose of by his last will and testament and of which he died seised he had acquired by purchase and increment since his arrival in California, and hence during his marriage with his said wife Naomi. This being so, the appellant invokes the presumption created by section 164 of the Civil Code, that all of said property was community property, and having done so insists that this presumption is one which can only be overcome by "clear and satisfactory proof," or, as it is sometimes stated in the cases, by "clear and convincing evidence" that such property was acquired by separate funds and that the burden of producing such proof lies upon the party claiming the property as separate; citing in that behalf Smith v. Smith,
In addition to the other facts above set forth, there was some further evidence produced tending to show that Naomi Nickson had at one time stated that she herself was the owner of certain separate property at the time of her marriage to John Nickson, which had gone, or was to go, to her daughters, whereas the property belonging to John was to go to his sons exclusively; and that upon various other occasions after the making of his said will she had *609 stated to various parties that she was satisfied with its terms and with her husband's treatment of her therein and that all of the property was his. On the other hand, there was some evidence that at the time the proceeding under the Torrens Land Act was taken and the foregoing statements were made by her, Naomi Nickson was over eighty years of age and was in a feeble condition of both mind and body. [3] In regard to these matters the evidence is somewhat conflicting, but with respect to the main body of the evidence touching the property, ownership, investments, and accretions of John Nickson before and after his marriage to Naomi Nickson there is practically no conflict in this evidence, and we are of the opinion that it is ample to produce that degree of proof which would suffice to overcome the presumption that the properties acquired by John Nickson after his said marriage were community property, and also to sustain the finding and decree of the probate court that the said property and the whole thereof was his separate property.
The appellant chiefly relies for a reversal upon the case ofEstate of Hill,
Judgment affirmed.
Shaw, C. J., Waste, J., Lennon, J., Shurtleff, J., and Sloane, J., concurred. *610