139 P. 1062 | Cal. | 1914
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *417 Over ten years after the death of deceased and the admission of her last will to probate, her surviving husband, John G. Klumpke, the executor of her will, filed his petition in the matter of her estate asking that certain property inventoried as a part of her estate, the same being a fifty vara lot valued at thirty-two thousand five hundred dollars, be selected and set apart to him as a homestead. The application was opposed by certain devisees and legatees of deceased. The court made an order setting apart as a homestead the whole of said property in fee simple absolute to the petitioner. We have here two appeals from such order, one by *418 certain devisees and legatees who appeared in the court below, upon the record and a bill of exceptions; the other by a single devisee and legatee, who did not appear in the proceedings in the court below.
The petition for the setting apart of the property as a homestead, which was drawn by an attorney other than the one now appearing for petitioner, clearly proceeded upon the theory that the property was and always had been the separate property of the petitioner. Of course, it is obvious that if this was the situation, the property was no part of the estate of the deceased, "and the court sitting in probate had no jurisdiction over it and could not deal with it as belonging to the estate," by setting it apart as a homestead or otherwise. (See Saddlemire
v. Stockton etc. Society,
Those opposing the petition in the lower court denied by their answers the allegations of the petition as to the ownership of the property and alleged that all of the same was the separate property of the deceased. There was no claim in any of the pleadings that the property or any part thereof was community property of the spouses — no issue upon that question.
The court below however expressly found that said property never became or was the separate property of deceased, in whole or in part, but that all thereof was, from February 11, 1889, to the death of deceased, community property of the husband and wife. Upon the theory that it was such community property, the court set it apart to the husband absolutely, instead of for a limited period only as it would have been obliged to do if the property was the separate property of the deceased wife. (Code Civ. Proc., sec. 1468.) Petitioner seeks to justify the order here, upon the theory that the finding that the property was in fact community property is sufficiently supported by the evidence.
Appellants claim that the property was shown without conflict to be the separate property of deceased, and that the findings to the contrary are without sufficient support in the evidence.
Appellants also claim that in view of the finding that the property was not the separate property of deceased, the order setting it apart as a homestead must be reversed, the theory being that it necessarily follows from such a conclusion that the property was no part of the estate of the deceased wife, and therefore in no way subject to the jurisdiction of the court in probate. It is clear in view of our statutes and the decisions thereunder that if the property was community property it was not a part of the estate of the deceased. Section 1401 of the Civil Code, in so far as is material here, provides as follows: "Upon the death of the wife, the entire community property, without administration, belongs to the surviving husband." The decisions under this section are uniform to the effect that the husband does not take the community property upon the death of the wife by succession, but that he holds it all from the moment of her death as though acquired by himself. (See In re Rowland,
It is further claimed by the appellant that the finding that the property was not the separate property of deceased, but was wholly community property, is without sufficient support in the evidence. We are of the opinion that this claim is well based. The only evidence that can reasonably be claimed by petitioner to be material to his contention was substantially as follows: Petitioner owned the property at the time of his marriage. It continued to be his separate property to February 11, 1889. On that date he granted the same to deceased, then his wife, the instrument being in form an ordinary grant, bargain, and sale deed, with an expressed consideration of ten dollars. No consideration was in fact paid, and, so far as appears, none was contemplated. This was testified to by petitioner himself. Deceased died in November, 1902, without having parted with the title. Petitioner and his wife resided on the property at the time of the deed and thereafter to her death. Petitioner to the time of his wife's death always paid all taxes on the property and also paid for all repairs. We are unable to see that the mere fact that the property was from the date of the deed occupied as the family residence and that petitioner paid taxes and the expenses of repairs is of any importance whatever in determining the question presented. So that the question really presented is as to the conclusion to be drawn in the absence of all other evidence, from the showing of the execution and delivery of a grant, bargain, and sale deed by the husband to his wife of his separate property, for an expressed consideration of ten dollars, no consideration being in fact paid, or, so far as shown, being contemplated. It appears to us that the only reasonable inference from such a showing, in the absence of any other material evidence, is that the husband was making a gift of the property to his wife. If this be so, of course the property became and continued to be the latter's separate property, section 162 of the Civil Code providing that "all property of the wife, owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, . . . is her separate property." Section 164 of the Civil Code as it was prior to March, 1889, relied on by petitioner, would in such event have no application whatever, being limited to "all other property acquired after marriage by either husband or wife" etc., i.e., property not acquired by gift, etc. *423
Learned counsel for petitioner relies strongly on section 164 of the Civil Code as it existed prior to the amendment of March, 1889 [Stats. 1889, p. 328], as creating a presumption that this property became community property upon the execution and delivery of the deed by the husband to the wife. It is, of course, well settled that prior to the adoption of this amendment, the prima facie presumption was that property conveyed to either husband or wife after their marriage, other than as a gift, was community property. (See Nilson v. Sarment,
While husband and wife may by agreement transmute the separate property of one into community property (see Yoakam v. Kingerly,
We have in addition to these facts the statement of petitioner under oath, in his petition for the homestead, that there never was any community property of the said intermarriage, and that this particular property is and always has been his separate property. (See Estate of Hill (S.F. No. 6308), ante, p. 59, [
It is unnecessary to discuss any other point made in the briefs.
The order appealed from is reversed.
Shaw, J., and Sloss, J., concurred.