149 P. 995 | Cal. | 1915
Emma C. Bollinger, widow of Samuel Pierce Bollinger, appeals from a decree distributing his estate to his three children by a former marriage, who are the legatees and devisees mentioned in his will. *382
Appellant contends that the evidence before the probate court was not sufficient to overcome the presumption that all property in the possession of the testator at the time of his death was community property. Conceding that the presumption which appellant invokes does attend the possession of property by either spouse (Meyer v. Kinzer,
The court's conclusion that all of the property of the estate was testator's separate property was supported by the testimony of one of his sons, who swore that the real property involved in this dispute was owned by his father prior to the latter's marriage to Emma C. Bollinger. The son also testified that at the time of his father's marriage to Emma C. Bollinger the former was worth eighteen or twenty thousand dollars, with the real estate; that all of this property was acquired by the father of the witness before his marriage; that he did not become insolvent after marriage, and that he kept the property as his own. (At the time of testator's death the estate was valued at $12,670.80.) The testimony of this surviving son was uncontradicted.
To appellant's statement that this evidence was hearsay, containing merely conclusions of the witness, and not the best evidence, respondents reply that no such points were made at the hearing, counsel for appellant contenting themselves with the stock objection that the testimony sought was "incompetent, irrelevant and immaterial." We think this answer is sufficient. The evidence was clearly pertinent to the issue involved, and if objectionable in the form in which it was offered, the ground of objection should have been clearly specified. The mere fact that it was oral did not render it inadmissible. (Killian v. Killian,
There was also introduced at the hearing of the petition for distribution a document regularly acknowledged by Emma C. Bollinger, whereby for valuable considerations she admitted full payment, satisfaction, settlement and adjustment of all claims and demands of every description against Samuel P. *383
Bollinger. The acquittance also contained this language: "I do hereby waive and surrender, release and acquit said Samuel P. Bollinger from any and all claim, demand, obligation and indebtedness, in the present or future from or on account of any reason, cause or condition, judgment or decree, by reason of anything that has happened between us or rising or growing therefrom, absolutely and unconditionally." This instrument was dated less than a month prior to the death of Mr. Bollinger. Appellant construes this writing as a waiver of claims against her husband personally and not as a disclaimer of all interest in his estate, citing in this behalf Jones v. Lamont,
But if there could be any doubt of the sufficiency of the evidence heretofore discussed, to support the award of all the property according to the terms of the will, it would be dispelled upon inspection of the pleadings, findings, and judgment in the divorce action which were introduced in evidence at the hearing in the probate court. In his complaint for divorce Mr. Bollinger alleged that there was no community property belonging to the parties to the action. The answer of Mrs. Bollinger was a mere general denial. The court found and the decree recited that there was no community property. The testator died in less than three weeks after the entry of the interlocutory decree. As no evidence that there had been any appeal from the interlocutory judgment was offered, we must hold that the property rights had become finally and irrevocably settled upon the expiration of *384
six months from the entry of the interlocutory decree. (Civ. Code, sec. 131; Huneke v. Huneke,
No other alleged errors require attention.
The judgment is affirmed.
Henshaw, J., and Lorigan, J., concurred.