151 P. 275 | Cal. | 1915
This is an appeal by the state of California from the portion of the decree of final distribution of the estate of William Brady, deceased, which adjudges that one-half of the property of said deceased be distributed to certain persons bearing the relationship of brother or sister, or descendants of such, to Harriet Hayes Brady, the predeceased wife of said William Brady. The other half of said property was distributed to the state of California, subject to the provisions of title VIII, part III, of the Code of Civil Procedure, and all other provisions of the statutes of the state relative to the escheat of estates. It is claimed on behalf of the state that, upon the facts, all of the property should have been so distributed to the state, said William Brady having left *3 surviving him no kin whatsoever. This claim concededly is well founded, unless the disposition of the property is controlled by subdivision 8 of section 1386 of the Civil Code. The lower court treated all of the property of deceased as being controlled in its devolution by said subdivision 8 of section 1386, and distributed it accordingly.
There can be no dispute on this appeal as to the material facts. The findings of the lower court declare those facts, and these findings are conclusive for all the purposes of the appeal, the evidence not having been brought before us for review. Mrs. Brady, the predeceased wife of deceased, died July 22, 1894. At the time of her death there was certain property, consisting of two parcels of land, two notes secured by mortgage, and certain money, of the aggregate value of $20,238.50, which was community property of Mr. Brady and his said wife, all of the same having been acquired by them during their marriage, and none of the same having been acquired by gift, bequest, devise, or descent. Mr. Brady died intestate on October 28, 1909. In the meantime he had sold the land and collected the amounts due on the notes, and had reinvested the proceeds in stocks and bonds. He left an estate exceeding in value seventy thousand dollars, all of which "consisted of rents, issues and profits of the community property owned by" him and his said wife "at the time of the death of the latter, and of property purchased with moneys derived from the sale of said community property and the satisfaction of said mortgages." This finding precludes the idea that any part of the increase in value of said property was other than that which had "arisen naturally and without the active engagement by the husband of his capital in some business or employment" (Estate of Cudworth,
Subdivision 8 of section 1386 of the Civil Code, the section prescribing, in nine subdivisions, rules of succession, is, so far as material, as follows:
"8. If the deceased is a widow, or widower, and leaves no issue, and the estate, or any portion thereof, was common *4 property of such decedent and his or her deceased spouse, while such spouse was living, such property goes in equal shares to the children of such deceased spouse and to the descendants of such children by right of representation, and if none, then one-half of such common property goes to the father and mother of such decedent in equal shares, or to the survivor of them if either be dead, or if both be dead, then in equal shares to the brothers and sisters of such decedent and to the descendants of any deceased brother or sister by right of representation, and the other half goes to the father and mother of such deceased spouse in equal shares, or to the survivor of them if either be dead, or if both be dead, then in equal shares to the brothers and sisters of such deceased spouse and to the descendants of any deceased brother or sister by right of representation."
The principal claim of the attorney-general and of amicicuriae who have filed briefs herein, is that none of the property left by Mr. Brady was "common property" of Mr. and Mrs. Brady at the time of the death of Mrs. Brady, and that consequent said subdivision 8 is not applicable to the facts of this case. The section is applicable only to such property left by a deceased as was "common property of such decedent and his or her deceased spouse while such spouse was living," and this has been held to mean only such property as was common property at the moment of the death of the predeceased spouse. (Estateof McCauley,
In the opinion filed when this case was decided in Department, prepared by Mr. Justice Shaw, it was said in regard to this claim:
"It must have been foreseen by the legislature that many years would usually elapse between the deaths of the respective spouses. The apparent object of subdivision 8, where both spouses die without lineal descendants, is to provide for the inheritance of the property equally by the respective families of the two spouses by whose efforts it was accumulated. *5
The construction contended for would defeat the main object of the subdivision in every case where the property was sold or exchanged by the survivor in his lifetime, and in all cases with regard to the ordinary income or increase thereof. It is a familiar doctrine in this state that property does not lose its character or status as separate or community property, by a mere change in form or identity, because of a substitution of other property in the usual manner of sale or exchange, and that interest, rents, or profits therefrom retain the character in this respect of the property from which they are derived. (Ramsdell v. Fuller,
"In view of these considerations, we think the more reasonable conclusion is that the subdivision applies not only to the community property in kind, as it existed at the death of the wife, but also to that into which the husband may convert it during his subsequent life, and that it also applies to the rents, issues, and profits thereof. This was the effect of the decision in Estate of Davidson,
"It does not follow from this conclusion that the heirs of the predeceased wife have anything more than an expectancy in the property, or its proceeds, during the subsequent life of the husband. It does not affect the husband's title. It may also be conceded that if such community property is by the husband so mingled with his other property that it cannot be traced to its origin as a part of the community property, subdivision 8 could not be applied. We have no such difficulty in this case. The property has been traced and the fact is established that it is the proceeds, issues, rents, and profits of the identical property existing at the wife's death."
A rehearing in Bank was granted upon the urgent petition of the attorney-general and various amici curiae for the purpose of giving further consideration to the question. While its determination is not entirely easy, we are of the opinion *6 that what was said on the former decision correctly disposes of the question.
As is stated therein, this conclusion in no way affects the husband's title during his life. Under section 1401 of the Civil Code, providing that "upon the death of the wife, the entire community property, without administration, belongs to the surviving husband," Mr. Brady, as is claimed by appellant, was, without administration, from the moment of the death of his predeceased wife, the absolute owner of all the community property (Estate of Klumpke,
Certain cases from other states are cited by appellant in support of its position that the statutory provision applicable here applies only to the "identical property" constituting common property at the death of the predeceased spouse, and does not include property received by the surviving spouse in exchange therefor, or any rents, issues, or profits. Of these decisions it is to be said that none involved the precise question we have here, in view of our community and separate property system and the well-settled rules in regard thereto. It is in the light of the well-understood policy in this matter that our statute is to be construed, and so construed we think the conclusion of the court in Department was correct.
We find in the briefs no other matter requiring notice here. To our minds the decree was in accord with our law and should be affirmed.
The decree of distribution is affirmed.
Shaw, J., Sloss, J., Lorigan, J., Melvin, J., and Lawlor, J., concurred. *8