*1 ten- the creation the husband of his into a Cali- by transmutation ancy entirety followed by the chain to have broken held tenancy, must be joint fornia succession of the statutes application far as so concerned. jurisdiction reversed. The decree is the consideration participate in J.,
Edmonds, did in this cause. decision
Rehearing denied. June 27, In Bank. 1939.] 16529. No. A.
[L. RATTRAY, ELIZABETH Estate of Matter MURPHY, MATTHEW Consul Honorable Deceased. ANN State, etc., Appellants, v. MARY Free Irish Respondents. al., RENNIE et *2 Ehlen, Lloyd John B. Massey Ralph and Edgington R. Appellants. for Peck,
James F. Oliver Ellsworth Boynton, and Chas. C. Curiae, as Amici on Behalf Appellants.
Louis Thomsen and Duque & McKinley Respondents. CURTIS, appeal J. This isan partial an order of distribution made and entered in the estate of Elizabeth Rattray, deceased. The contest is between the relatives Rattray said Elizabeth and relatives of James Rattray, predeceased husband of the said Rattray. By Elizabeth said distribution, decree of certain in the estate Eliza- Rattray, deceased, beth equal distributed in shares, that say, is to one-half thereof was distributed to relatives of Rattray, Elizabeth and one-half thereof to the relatives of Rattray. The James relatives Elizabeth Rattray entitled to share her estate are a brother and sister and the several children of a sister and two brothers. They appealed have from said order partial distribution, will and be referred to herein appellants. as the The rela- Rattray, seeking tives James to share in the distribution Rattray by Elizabeth estate of virtue of their relation- ship predeceased husband, sister to her brothers and are Rattray, herein deceased, James and will be referred to deceased, Rattray, The here- respondents. Elizabeth will after be referred to as decedent. Rattray of cash in the estate of Elizabeth consisted $26,890.67, value, little or no
amount some stock of parcel of real This for the estate of little value. : discussion, may sake of this be divided into classifications two (1) decedent, Eliza- Community property came to the which Rattray, beth husband. Said death her her will bequeathed had been devised and last had been inventoried testament of husband and (2) part Property owned accounted for as estate. decedent at her death which had been included inventory of the husband’s estate. readily by appellants that the outset it was admitted
At classi- portion as to that estate of decedent in first formerly been fication, say, that is to which had had come husband, having been the death of her *3 testament, bequeathed her in last will and devised and to provisions under the of section respondents are entitled the equally by share them to with virtue the Probate Code of prede- relationship Rattray, to respondents’ James the portion However, as that decedent. to ceased had not been in the included the decedent estate predeceased husband, inventory her and which estate of the object $18,307.03, appellants sum of to the amounted thereof, contending receiving any part that such respondents’ property of decedent, the that property the was no Probate Code has property as to such they, as the sole heirs of en- application, decedent, are whole thereof. to receive titled made found, and its order of distribution The trial court Rattray, estate of Elizabeth de- accordingly, “all of the that community property said decedent and her ceased, was Rattray, James and came previously said Rattray, by Rattray, gift, from James devise Elizabeth respondents said heirs “constitute bequest”, provisions of section under decedent of the within State of en- California, of the and are Probate Code of Elizabeth Rat- titled to succeed to one-half of the estate tray.”
It once the order of apparent is at distribution by court property first classification trial property finding was the com upon based munity spouses Eliza property of which had come to Rattray “by beth from devise and her husband bequest”. question as correctness of the There order of in so far it relates to this distribution As of dis second classification the order tribution, finding apparent, it is was based spouses property property of the was the gift”. cor Rattray “by which had come Elizabeth respondents rectness trial of the conclusion of the court that as relatives share entitled to the distribution of depends the an swer questions: to two finding of Was the the trial court that the
which had gift come the decedent husband supported by provisions the evidence? Do of section 228 of the Probate Code control distribution prop erty of a dying acquired intestate issue without who said property as an inter vivos predeceased spouse
from a ? We are questions satisfied that the answer to both inis affirmative consequently the order of distribution of the trial with court to this property reference is correct.
With money appellants reference to the claimed have been the proof decedent, probate offered to the appellants court that at the time of the death of decedent’s husband in 1930, decedent deposit had on with bank in her own name, shown books, her bank $16,618.90. sum of A search report by company a title was also appellants introduced which tended during to show that life, *4 her married had held title in her parcels own name to several of real Aside from being estate. fact of by title held her as separate property, her produced explain evidence was to property source the funds acquired was separate property. her as her proba If no evidence by respondents tive proof value offered was fact that the source this was prop erty spouses, respondents necessarily of the fail to would right relationship establish their inherit to virtue their to right to of decedent. Since their depended merely upon inherit that certain the fact of relationship, relationship but upon plus the fact of such fact that them heirs had claimed formerly community property been the the decedent her showing burden such addi- Simonton, tional (Estate fact rested them. Cal. Pac. 442].) The sole pro- evidence question, available this duced respondents, testimony Battray, was the of William a brother of the predeceased spouse. Undoubtedly the trial witness, court, accepting testimony true of said weighing outcome, had mind his in the and in interest evidence, gave weight his We are due this factor. opinion testimony sufficiently that this substantial support finding trial reference court with necessary character of this inference all of had therefrom that since spouses, and the wife had income, source had come no other of the wife Briefly to her as an inter from her sum- husband. marized, testimony Battray William to the effect years marriage in that he first met decedent her two after stayed brother, Battray, 1908 to his and that he with James intervals then them at time; and saw for some little them discussions with quite often he had years; that for several at the time of affairs; that financial relative their them property; that his sister-in- had no marriage his brother marriage; time of their that after at the law had no marriage husband; a for her that she was housewife their marriage his brother started to work for shortly after the Company Angeles and worked for that com- Water the Los twenty approximately years; up he worked pany for position earned in which he position $200 of foreman year ill prior month; brother about his employment company; left the death anything anybody from inherited had never his brother any- heard his sister-in-law had never he and that nothing any; inherited did she ever that she else one death but con- after husband’s livelihood earn her *5 707 housewife; tinued be a at the time of the husband’s that they at differ- piece death owned one of real parcels property; sold and that ent times had three other they frugal living. very in their manner of This testi- mony, although uncorroborated, likewise uncontradicted by any support in the fact or circumstance which would slightest degree any prop- the source of inference the erty prop- The spouses. was not erty acquired by an commensurate them totaled amount living. with the of the husband and their income manner justified, concluding The therefore, trial court was spouses, including all on amount deposit acquired by bank name, in the wife’s joint frugality spouses their from efforts and dur- twenty-two ing years their of married life. $1688.13, by
With acquired reference to the sum of unexplained source, goes decedent from some and which up appellants make claimed $18,307.03, the total as a part wholly them, decedent’s estate distributable to since gainful engaged subsequent the wife occupation no husband, may death of her money reasonably be traced as interest her deposits, bank and as such fruit property, must likewise deemed to be com be munity property. appellants therefore, contention of support evidence finding does of the trial court to effect that all the in the estate of the decedent was spouses, portion thereof came gift from predeceased husband, cannot sustained. A problem presented more difficult with reference question provisions whether or not the of section the Probate Code control the distribution of dying of a decedent intestate acquired without issue who gift said as an inter vivos of community property predeceased spouse. from a
Appellants first paragraph contend that of subdivi- (which sion 8 of section of the Civil Code upon adoption Code the Probate in 1931 was 228 of Code) reenacted as section the Probate has been applying only strued as property of spouses surviving “by received will or inheri- tance or retained of its virtue character as community 70S
property”, having application community prop and as erty during which had come to the decedent the lifetime as an inter spouse, must hence section of the Probate Code (Estate necessarily Mc receive the same construction. Cauley, Simonton, 458]; 138 Cal. Estate *6 of supra.) gainsaid great It cannot be that there deal of is a argument. force in this
Respondents 228 Code contend that section of the Probate and section 229 of the Probate be construed Code should 8 together, paragraphs were the two of subdivision section 1386 of the Civil which the above sections Code construed, based, by an of the Probate Code and as so were scope enlargement scope 229, section section enlarged 228 has likewise been to include the by an property spouses which came to the gift predeceased spouse. inter vivos from the opinion study history of these We are of the that a original two sections since the enactment subdivision 1386 of 9) (mistakenly numbered subdivision of section 1880, understanding in an the obvious Code and Civil provisions, con- purpose behind the enactment of these two disposition, testamentary trolling, in the or absence of issue which property descent distribution of of a decedent and or spouses property had been either the property predeceased spouse, compels of a the Probate 228 and section conclusion together. and construed Code should be read time its At the enactment subdivision 9 of sec- (later tion 1386 of the Code correctly, Civil renumbered “If 8) subdivision read as follows: the decedent be a widow widower, kindred, and no estate, or leave and the portion thereof, property decedent, was common of such spouse, living, her deceased while and such go shall property common to the father of such such deceased dead, if he to the If spouse, or mother. no there be mother, go then father nor such shall brothers equal shares, of such deceased and sisters any deceased lawful issue of brothers or sisters of right representation.” spouse, by other words, prevent was a mere this subdivision last resort escheating to the state in the event the decedent left (See no kindred. Article, Pro- of Descent under Rules bate Code 229, by Perrier, sections in 25 Jr., W. W. California Review, 261.) Law p. (Apparently an over- sight predeceased issue of spouse by marriage a former designated not included among the entitled to relatives inherit.) Under read, question the section as it then scope provision of said relative presented
first in 1903 for determination. The court Estate McCauley, supra, held that re- ferred to subdivision 9 of section 1386 of the Civil Code distributable to predeceased spouse relatives of a dece- dent leaving kindred, must have been came decedent on the death of the and that said applicability section had no which had been the community property of had come to gift the decedent as a from such spouse. In that case the bulk of widow who had received her estate as an inter husband died testate from her leaving bequeathed no kindred. She nine individuals corporations five legatees, charitable a money legacy. The *7 other sought than the corporations, lega- charitable have corporations cies to said reduced to one-third of the distribut- by able provisions estate reason of the section 1313 of corporations Civil provided Code which charitable could collectively bequests by not will take devises or which should leaving “legal exceed one-third of the estate of the testator Appellants argued predeceased heirs”. that two nieces of the (not husband of decedent will) mentioned in were decedent’s “legal heirs” of the decedent virtue of subdivision Code, section 1386 of the Civil if any and decedent’s property of which she property died seised had been common any spouse, at time before the death of her re- it must be garded property regardless to her lifetime, her husband in his as her left and husband heirs, kindred, legal property left no such must be she determining taken into account the “one-third the es- leaving legal (Section 1313, tate the testator heirs Civil Code) impressed by was ”. The court that such fact right greatly wife construction would circumscribe the testamentary kindred, disposition, she no of absolute left predeceased and held nieces husband only to the common legal reference heirs of the decedent with prede- undisposed by the of” property “which remained apparent quite It is ceased husband at death. her deceased decedent and term, property of such “common in sub- spouse living” as set forth was spouse, such while reasonably Code, 1386 of the Civil could division 9 of section estate property in the interpreted all have been to include been the of decedent which had ever particular doubt that the spouses. There can be little respon- largely was presented that case factual situation scope placed narrow limitation sible predeceased and a of the decedent term “common There- case. spouse living” in that spouse, while such enlarged renumbered after the subdivision was the decedent only property of apply property which spouse, include but to spouse. It been the oversight with reference apparent also corrected the amendment, said predeceased spouse, for said issue of the other preference over the given issue were included and change material A most designated further and relatives. subdivision transformed the this time which was made at provi- state to a escheat to the prevent provision ac- This was wholly rule of descent. setting up a new sion place substituting word, “issue” complished apply- the section instead word, “kindred”, so that applied kindred left no ing only in event the decedent leaving no issue. died intestate the decedent whenever “If dece- follows: enacted then read subdivision as issue, widower, and leave- dent is a widow or of such common any portion thereof was estate or spouse while such and his or her deceased deceased of his living, or was goes living, such spouse, while and the of such descendants children none, then to the father of such deceased thereof, and if *8 dead, the mother. If there is no father spouse, if he is to goes property sis- such to the brothers and mother, then nor shares, spouse, equal and to the law- deceased of such ters brother or sister of any deceased such deceased of ful issue ’’ It right representation. will be noted that this of spouse property all actually took had been com- provision munity spouse property predeceased and of the decedent away his own as of the decedent close relatives rela- parents, brothers, same sisters, gave it to the and tives until predeceased spouse. only lasted This next legislature provide to when it was amended equal for an of designated division relatives between certain property the decedent predeceased spouse and of of which had previously property of spouses. two into time, At was divided this the subdivision paragraphs. two with paragraph The was concerned first the community property of and contained property reference acquisition to manner spouse. the surviving paragraph The second cerned property separate property with which had been the predeceased provision (pos- and contained sibly to conform refer- judicial with construction ence to community property) applied to property of the to the de- which had come “by cedent descent, bequest”. 1920, in devise or Es- Simonton, tate supra, upon a final distribution of estate widow, specific who, making be- after certain quests, had left the residue of her estate to her “heirs at law provided by the laws of succession of the state of California”, a contest arose between the next kin decedent and the descendants of her husband. Issue was made as property formerly com- what had been munity property and go the descendants of husband what was not this character should, therefore, go branch decedent’s of the family. The court, following relying upon decision in Estate McCauley, supra, held that subdivision 8 of section 1386 of the applied only Civil Code received will or inheritance or retained virtue its community character. In arriving at conclusion, court addition to relying McCauley, on Estate supra, justified its decision calling attention to the fact language of the second paragraph subdivision which dealt with which was the predeceased specific contained language as how must come to decedent in provi- order for the apply, sion namely, “by descent, bequest”. devise or argued equivalent that an court provision in the ease of *9 712 re one limited to would be
ceived or either by retained the the survivor of by as or will character inheritance or virtue of its community property, presump as was a fair there equivalent, provisions tion that the two intended to be provision receive relative to language required by plain a construction similar to that property. equivalent referring a 1930, phrase, or a widow “if deceased was interpreted by widower” was Mc this court in Estate of 1318], to Arthur, 469, 210 439 R. Cal. 72 A. L. person include a who remarried after the death spouse leaving spouse former sur and had died the second entirety viving. year The next enacted in its prepared proposed Probate Code which had 750, chapter commission, appointed pursuant the code revision, compilation enter Statutes paragraph of laws first codification of the of the state. The 1386 of reenacted subdivision of section the Civil Code was language the Probate in identical as section 228 almost of. words, “If deceased exception that Code with the meaningless being were deleted widow,, is a or widower” McArthur, supra, and the in Estate the decision since words, or decedent and his “was common of such spouse living”, spouse, while such her deceased to, of the decedent changed “was spouse”. paragraph previously deceased The second and a the Civil Code was of section of said subdivision word, Code, 229 of the Probate but the as section reenacted “descent, devise, bequest” phrase, or added “gift” was commission, code “to make the sec order, as stated complete”. Obviously, the addition logically tion considerably scope provi “gift” enlarged word, they exist, they sections now and as two code sion. death of the decedent read as fol at the time existed : lows Community If issue: 228. No “Section portion issue, and the estate or thereof leave no previously the decedent and a community property goes equal shares to the deceased to their descendants children none, and if then one-half of such representation,
right community property goes parents of the decedent equal survivor, if shares or either if is dead to the or both equal are dead in shares to the brothers and sisters of representation, by right decedent and to descendants their goes parents and the other half of the deceased equal survivor, shares, if either is dead to equal both are dead in shares the brothers and sisters *10 spouse right of such deceased and their descendants to ’’ representation. of Separate property “Section 229. No issue: of deceased spouse. issue, If the decedent or leaves and the estate any portion separate previously thereof was property of a spouse, deceased spouse and came the from to such by gift, descent, bequest, property goes devise or in equal spouse shares to the children the deceased of and their by right descendants representation, none, of and parents then to the spouse equal shares, of the deceased if either is to the survivor, equal dead or if dead in both are shares to the and spouse brothers sisters of the deceased right their descendants representation.” of
It is apparent history provisions of these code changes and the various therein that ever since amend 1905, ment in origin wherein the or source the property was first up set as one of determining factors in descent and dying distribution the estate of a decedent issue, intestate without that there has been a at consistent tempt reasonable, out a work consistent dis scheme of upon tribution wherein the death of a decedent intestate issue, without instead of the going whole surviving spouse, relatives of the last should go spouse the relatives back to of the from which title was general, derived. scheme as was fair and reason able, provided separate property that the of a spouse go entirety should back in its to the of said relatives community property that the of the equally by spouses be shared pre relatives spouse and the relatives of surviving spouses are deemed to have equally both since contributed (Estate acquisition. Brady, 1 to its Pac. Cal. [151 McArthur, supra; Estate ; Putnam, Estate 275] (2d) 27].) It will be noted Cal. separate prede- relative provisions and relative to ceased in one of one section spouses were contained subdivision Code) intended 8 of and were (subd. sec. Civ. the code upon plan general based to furnish one distribution origin or principle, underlying fundamental same its should determine distribution. source Simonton, noted, supra, the court As in Estate before arriving at its reference to the conclusion with based, part, reasoning upon its relating paragraph of the subdivision phraseology separate predeceased spouse, saying, property of the point provi- presumption fair “There property were regard to sions with for for a difference equivalent, no reason intended to ’ exists ’. only therefore, correct Logically, seems together. should be construed clusion is that the two sections they together, If a consistent scheme dis- are construed they If construed an provided. separately are tribution is provided of distribution is inconsistent scheme community property which is not reason based purpose justice and has no relation the obvious *11 If provisions. said the the sections motivated enactment separate together the will that are not result be the construed predeceased spouse which has inter vivos property of a separate property gift into the been converted other entirety prede- will in to relatives of the go its the has the ceased but spouse by inter into the converted go wholly property of the other will the to the entire exclusion of the decedent to rela- relatives spouse. words, In other the rational tives of destroyed mere, system distribution is and a basis of the of succession substituted. arbitrary, inconsistent rule any purpose of the code commissioners disclaimed While changes in law any substantial as it existed making Code, they Probate did make proposed a far- prior to word, “gift” by the addition of the reaching change to sec- logically complete”. it It would seem 229 “to make tion suppose self-contradictory adding word, “gift” in to application has to 229, which to section intentionally complete” they “to make the logically destroy planned harmony consistency of the rule and sepa- applied alike distribution which had theretofore rate view of the fact mutually being two sections had theretofore been construed dependent other, on each it more reasonable seems proposing clude that the code commissioners in enactment Code, two sections of the Probate in enacting them, in provisions should intended that these future, they inter- past, in construed as had be dependent and fur- mutually upon related and other each nishing by means of distribution this a consistent scheme purview provisions. falling within the of these
Appellants argue that more exercised solicitude should be providing separate property in go relatives should predeceased spouse pro- than should be exercised viding predeceased spouse the relatives of the should share in spouses, but we are perceive any logical unable of such be- basis distinction rights tween the two classes of with reference to the desig- under succession the circumstances which entitle the any argu- nated relatives either event inherit. And ment based a claim that real there basis of dis- property must, think, tinction between the two classes of we be held be untenable. It is true that Miller, case of Estate App. 23 Cal. (2d) 16, 18 (2d) 1117], hearing which a court,
denied was held that membership where the fees Orphans’ and dues in the Widows' and Aid Association paid had been of community out funds of a husband wife, and the constitution provided of the association paid that the $2,500 widow the sum of per- no designated son had been beneficiary, the insured as beneficiary designated, proceeds been so policy properly payable to the administrator of the wife’s (she having estate died within two weeks of decease) theory payment that of the membership fees *12 dues was an inchoate the husband of community complete upon which became Ms death, and that 228 section of the Probate Code did apply not to this com- munity property which the husband by gift had converted this While is true that it his wife’s
into subse- Probate Code of section of the is a construction is therein the decision to its in quent enactment that section necessarily upon conclusion predicated spouses which apply not does separate property of gift has by inter vivos become apparent the record surviving spouse, is from it predeceased heirs of the of counsel for the case that the efforts court convincing the primarily directed husband property had not become remained by gift, wife but had husband virtue the death of her to her came which However, more careful character. of its Code, section analysis two sections of the Probate of the holding in 229, we are convinced that 228 and Lissner, App. 27 Cal. in error. In Estate that ease was ruling 448], followed the (2d) the court (2d) 570 [81 part to a of the with reference Miller, supra, in Estate of proceeds controversy consisted of which named wife had been in which the policy a life insurance re- was conceded argument it oral beneficiary. At the such entitled to succeed appellants were spondents that holding in the Estate with the proceeds in accordance petition so held. Miller, supra, and the court holding nor court, this was not mentioned hearing regretted hearing that a it is to be While questioned. Miller, petition in Estate this court granted grant it, that our failure to not believe supra, dowe arriving we a correct from at what consider us preclude directly presented to us in the matter when clusion ease. instant provides of the Probate Code read section
weAs in- of a decedent who dies the estate portion of community prop- issue, has been the which without testate predeceased spouse, and a decedent erty said has by gift, devise, bequest descent or decedent to said come belonged predeceased went to the its character on by virtue of the death decedent spouse, goes equal shares to the rela- of such and the relatives tives said designated section. *13 with being in conformance The order of the trial court is af- Probate Code of section said construction firmed. J., con- Houser, J., Seawell,
Shenk, J., Waste, J.,C. curred. agree
EDMONDS, J., Dissenting. I cannot with the placed upon by the struction section 228 of the Probate Code harmony my opinion, decision in case. In it with either letter or spirit of the law. early legislature provided
As as 1880 the that California kindred, if leaving a widow or widower died intestate any portion of his or her property estate which common was spouse such decedent and a spouse, deceased while such go living, spouse. the heirs (See. 1386, Code.) Undoubtedly, legislative pur- Civ. pose of this enactment one allow the relatives prop- whose death inherit terminated the erty accumulated rather than to have es- it cheat to the state. Not until 1903 was this court called to determine meaning time, of the section. At appellants
Estate McCauley, 138 Cal. 458], contended any cash and decedent’s real estate was com any mon at time spouse, before the death of her required by must be distributed as the statute. Under that construction McCauley which Mr. given had wife pass before his death would to his However, adopted heirs. the court “the more reasonable construction”, construing spouse the words “while such living” mean “that the common referred to undisposed must be such as remains such at ’’ his or her mean, court, death. statute cannot said the portion of controversy that if that an estate in “happened ' to be at some time common of such decedent and spouse’, had, long his or her deceased but before the death of conveyed such him decedent, or her to intestacy of decedent’s in case go would spouse’s heirs”. deceased definitely positively decision
This established rule as then in the statute effect did not include subject had been the gift. an inter years amended Seventeen later after the adding por- rule of succession for the code section separate property of tion of an estate which was “and from such living, while came to question spouse by descent, bequest”, devise or the same case. again it followed the former came before court and defining prop- construing provision erty which be succeeded to under the circumstances could *14 statute, “Literally, would in- mentioned in the it said: this any community prop- clude which once been had erty, the no matter it not such at the time of husband’s were as, life- death, example, the had in his for when husband separate given property. his for her But time it to wife clearly meaning intended, and such a not what was (Es- meaning.” already not the has been held it is true Simonton, 442].) tate Cal. positive pronouncement Here is a second and definite court, upon reasoning the the former decision. based the ground conclusions, for court con- But another its the provisions concerning separate were sidered which part McCauley the not a of the statute when was de- case court, legislature Because, provided said the the cided. surviving decedent, separate property which came to by descent, bequest go spouse, devise or shall to the latter’s relatives, fair presumption point “there is separate regard provisions prop- with erty equivalent, were reason for a intended no dif- ference exists”. concerning community
However, the statute was meaning time enacted 1880 and its been construed at a was, separate property included was not in it and there when concerning course, specification the manner in which separate surviving spouse succeeded to There- provisions concerning of the statute fore, prop- years after decision erty, many which construed added properly original statute, could have been referred ascertaining the legislative purpose intent to for community property. In McCauley, regard Estate of court, first statute came before its in- supra, where the words “common of such de- terpretation of the or her deceased while such cedent, reached a consideration of their mean- was living”, light ing they purpose statute in which and in principles used consonance with fundamental statutory construction. The true situation then after pro- added the concerning separate ju- vision By was as follows: dicial construction of code section, community prop- erty passed provisions which under its was that which was the time of at the death of did not subject include which had been the inter of an gift; by express separate property its terms the that which had by “descent, come the decedent devise bequest”.
In 1931, when the adopted, Probate part Code was section 1386 of the Civil Code relating community prop- erty became section 228 portion code; new cerning separate property following enacted as sec- rewriting statute, tion. former some addition to changes “gift” slight textual the word was added to may so that be claimed under it now succession includes that which came by “gift, descent, bequest”. devise But sub- stantially McCauley, the same words construed in Estate of Simonton, supra, supra, have continued Estate *15 section, through considering all revisions of the and in application of section 228 of Code, the Probate the same question, community property statute which is now in to joint tenants, taken in the of a name husband and wife as again this court followed the rule of earlier decisions. (In Kessler, (2d) 117].) re Cal. 32 Pac. It held [17 joint tenancy that under the was interest of each separate that the wife succeeded to the hus- by right separate “upon band’s interest survivorship; hence her heirs alone were entitled death to share therein”. then, In dating 1903, three cases the statute in its Supreme different forms has been considered Court placed upon and the construction same each decision. recently Also, they have been followed the District Court Miller, Appeal App. (2d) in Estate 23 Cal. (2d) 1117], it was held that wherein “section 228 of applicable is not community property to Probate Code which husband, gift, has into converted separate wife’s property”. present that because
The decision holds “gift” separate concerning statute wrote the word into the law must word into the property, this court write same judgment my vio- relating property. il- statutory entirely rules and is lates construction all logical. adopted, Probate the rule stated
At time the Code McCauley years for 28 the law ease stood community prop- many why California. There are reasons erty gift subject which has of an inter vivos been among passes not under the statute be included that which prop- succession; apply those reasons do not erty. Simonton, supra, to in Estate This alluded concerning the court said construe the statute where gift “place including of it would predeceased spouse in a more favorable relatives regard community property position regard to with than with spouse’s property, when, to such distinction contrary”. naturally just made, were to be it would represents common legislation here considered the old which al- law as to the descent of ancestral rule only purchaser by of the first whom lowed those of the blood it. How- brought family into the the land inherit ever, recognized the common law and in states which have at exchange estates, a sale ex- doctrine of ancestral or of land tinguishes Also, its ancestral character. the doctrine has applied personal generally including the Probate Code as
To construe section subject property which been the of an inter has directly contrary principles upon which is the doctrine rests. Since has ex- law respective hus- pressly provided that interests “the during wife in continuance band and marriage present, existing equal”. relations are Code.) Community property is (Sec. 161a, Civ. marriage or acquired after either husband wife has been acquired by gift, bequest, de- both, except devise, result scent, frequently of the labors of each. *16 principles Therefore, justice, in consonance with of natural in interest only is the wife’s being “present, existing since equal”, but recognized either could years the state husband wife early her other, interest it to the and there- his gift make a other In the donee. property of separate after it was the inwife efforts of recognition of words, husband a other any property, or for community accumulating their date from the may her it to. reason, make valid by the Yet property. gift it of that becomes must death, upon her present decision, the same be considered to why, my
There still opinion, another reason Although present struction stated incorrect. decision is report the code in its commission to the Governor legislature at- submitting proposed Probate called Code changes tention to material in the law succession enactment, suggestion would follow its there is no language re- would result a different construction lating Estate from that laid down in McCauley, supra. It, therefore, reasonable seems neither the in- commission nor the intended clude in term used in which had become one spouses by gift during marriage relation.
For these reasons I believe that the of distribution decree should be reversed.
Rehearing denied. Edmonds, J., rehearing. voted F. No. 16001. June 27,
[S. Bank. 1939.] In the Matter of the Estate SLACK, of CORA C. Deceased.
JOSEPHINE A. et al., SPARKS Appellants, JEN v. NIE B. al., Respondents. RENWICK et