124 P. 868 | Cal. Ct. App. | 1912
On February 20, 1912, an opinion was filed herein reversing the judgment and order of the trial court. Thereafter an order was made granting a rehearing.
The proceeding was had and taken pursuant to the provisions of section
From this decree, and an order denying contestant's motion for a new trial, she appeals, claiming the evidence is insufficient to justify the finding of the court.
The land was deeded to the wife, Aurora Carlin, by a third person and the consideration therefor paid from the community funds of husband and wife. Since either spouse may hold the legal title to community property, it follows that the land so acquired during coverture with community funds was, unless made the subject of a gift from L. C. Carlin to his wife, the community estate of the marital relation. As to *170
whether or not it was a gift was a question of fact to be determined by the trial court upon the evidence adduced at the trial, and its conclusion, unless manifestly without sufficient support, should not be disturbed by an appellate court. "Whenever any property is conveyed to a married woman by an instrument in writing, the presumption is that the title is thereby vested in her as her separate property." (Civ. Code, sec. 164) "But this is a mere rule of evidence fixing theonus probandi in cases where the question of ownership is in litigation." (Jackson v. Torrence,
The policy of permitting the presumption arising from a conveyance of real estate purchased with community funds to a married woman to be overthrown after the wife's death by evidence of an undisclosed intent on the part of the husband that it was not the subject of a gift may well be questioned. It is the province of the legislature, however, and not the courts, to determine questions of policy.
The judgment and order appealed from are, therefore, affirmed.
Allen, P. J., and James, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 19, 1912.