*1 No. 16154. Third Dist. Dec. [Civ. 1978.] KENWORTHY, Executor, etc.,

LOUIS R. as Plaintiff and Appellant, al., ALICE V. HADDEN et Defendants and Respondents.

Counsel Weaver, Jones, Lane, A. Weaver & Webster Eric R.

Roy LaForge Plaintiff and Appellant. Milich,

Bush, Hallinan, Winslow Leo Milich & Benjamin Ackley, Winslow & Schmidt for Defendants and Respondents.

Opinion

REYNOSO, is invested in a Community property J. wife, husband and a other than his wife. The who composed person *3 interest in her husband’s interest, enjoys present existing partnership dies and leaves her interest in that to several devisees. Do they is, interest as did? she That are owners of enjoy present existing they Or, that interest? do have a mere claim? Under the facts of money case, this we conclude that the devisees have a interest and not a mere claim. R. Louis as executor of the last and will

Appellant Kenworthy, of testament Louis C. (Louis), from a the of Kenworthy appeals judgment trial court him to account for and over to (the ordering pay respondents of one-fourth the undistributed of devisees) net decedent’s profits and one-fourth the worth said net partnership partnership upon of the sole conten- liquidation winding up Appellant’s tion is that claim is file a barred their failure to claim in respondents’ the in the estate of Louis C. probate proceedings Kenworthy pursuant Probate Code 732. sections merits, in addition to their the on us

Respondents, response urge upon be dismissed because consented to the appeal appellant judgment.

I Louis and B. were married in 1935. Opal Kenworthy (Opal) August The continued until death 1966. left a will marriage last Opal’s and testament which was admitted to on 1966. probate September The distribution, decree of other distributed an undivided among things, rest, one-fourth of the residue and remainder the estate including in a Opal’s community property partnership, Kenworthy Patterson, Patterson, Louis C. and C. L. each consisting Kenworthy a 50 interest therein. The value of the estate’s having percent appraised 146,262.62. $ interest in the partnership and Patterson had been in existence since Kenworthy

October 1936. Louis’ interest was community property. death, the continued in Subsequent possession of the and continued in allAt times after partnership property operation. death, Louis claim to a one-half acknowledged respondents’ share of his he partnership. Accordingly, paid respondents one-fourth of the and one-fourth of the net profits the sale of asset. Louis’ lifetime proceeds upon During neither he nor commenced respondents any legal proceeding their claim in his share of the regarding partnership property.

Louis died in 1973. His will last and testament was admitted to January on 15, 1973. R. probate February Appellant Kenworthy executor of Louis’ last and testament. The time will period filing claims the estate did not file a claim expired. respondents the estate. *4 27, 1973,

On filed a relief, August appellant complaint declaratory a declaration claim, that the have no seeking title or respondents right, inor the estate of Louis C. Both against Kenworthy. appellant and filed motions for The trial respondents court summary judgment. denied motion, motion and that appellant’s granted respondents’ ruling are entitled of to one-fourth the undistributed income and respondents on net value liquidation 6, 1974,

On filed a notice of motion to May appellant reopen reconsider the matter. The trial court the motion to granted reopen reconsider and set aside its on The court held ruling summary judgment. fact, that there remained triable issue of but ruled the against appellant on his that contention were barred from a claim for respondents asserting failure to file a claim in the of the estate. The triable issue was probate whether interest was The community property. parties stipulated that it was. The court ordered that in further the issue of proceedings a Probate Code claim would be deemed established favor filing of thereafter court enter respondents. parties stipulated findings of fact and conclusions of law judgment against appellant. Judgment entered 17, was to on 1976. pursuant May stipulation

II We first deal with assertion that the cannot respondents’ appellant this maintain he consented to the entered since appeal judgment against him. an

It is rule that a or order will not be disturbed elementary judgment an who to on consented A appeal brought by party judgment. is a consent within the rule. (In this re stipulation meaning Marriage of 700 479, (1971) Atchison,

Carter 488 274]; T & Cal.App.3d [97 Cal.Rptr. S.F. Co. v. 859, Hildebrand (1965) Ry. Cal.App.2d [48 339]; Brooms v. Brooms (1957) 351, 352 P.2d 567].) [311 consent to the as a formal matter of entry judgment procedure after an has issue been determined regularly does not party (Grant him of the M. Park v. Robla deprive right appeal. School Dist. 528, (1939) 531-532 P.2d Where it 499].) appears record consent was to given facilitate an merely pro appeal forma will not lose his to be heard on party (Mecham v. appeal. McKay 37 Cal. 159.) In the in the trial court contention proceeding appellant’s major claim of the any was barred their respondents failure to file a creditor’s claim under Probate Code sections 707 and 732. When the trial court to motion and reconsider another granted reopen issue, it ruled on that issue. That issue specifically against appellant him, been determined elected not to having trial appellant go on other issues and to the From our review of the stipulated judgment. record, it cannot be held that consented appellant entry him on the issue of the failure file a creditor’s claim judgment *5 in the this contention at probate proceeding. Appellant urged every until the trial court ruled him on that It issue. was opportunity when determined issue was him that only appellant to it is clear that he intended to consent to stipulated judgment, only on other issue in the matter. does not raise other judgment any Appellant on issues We hold that is not he barred from this appeal. presenting single for issue determination on appeal.

III and more troublesome issue is contention major appellant’s the of interest is a respondents partnership money the estate of C. which is barred their failure Kenworthy 707, to Code, file creditor’s claim. We (Prob. 732.) §§ with the agree trial court that the claim is not barred. Therefore, could not devise an interest than her own.

Opal greater will the of the we first examine nature interest partnership More we will examine the relation of her property. particularly, the We note that community property partnership property. parties have that “the interest” of Louis in the had stipulated capital partnership “the character as between him and his wife.” The community property ruled trial court had that the issue of whether Louis’ interest in previously Thus, was a triable issue. we partnership community property to mean that Louis’ 50 interpret stipulation percent partnership interest was in fact as between Louis and community property Opal. ais distinct While the

Partnership property category properly. assets, has a such can be right partner possession partnership exercised interest in only partnership purposes. partner’s particu- dower, lar assets is not or allowance to partnership subject curtesy, heirs, widows, or next It of kin. is not Code, community property. (Corp. is manifest, As 15025.) section 15025 clarifies § the character of partner- as between the it does not ship to characterize property partners, attempt the nature of the interest of a as between a husband partnership partner and his wife. As to them the husband’s interest in the is still partnership Code section 15025. (See despite Corporations McCall v. McCall (1934) P.2d 496].) [37

A interest in the is that share partner’s partner’s and is itself Code, surplus 15026.) profits personal § property. (Corp. Decisional law has clarified partner’s and not an interest. (Carmichael

personal property, present expectant Carmichael had 514].) Opal assets; no interest in her interest was in Louis’ interest which was and distinct from the personal property separate claim; assets. thus more than a mere she enjoyed had community property existing personal property.

The interests of husband and wife in are community property Code, 161, (Civ. based on § former existing § present, equal. subd. in (a).) interest Louis’ 50 interest was Opal’s percent partnership thus When was transferred to present existing. community property did not divest herself her interest Opal community that in favor claim Louis; of a she property general money against merely traded her interest in asset one for a interest in community community asset, another Louis’ interest. on Rosenthal v. Rosenthal (1966)

Appellant depends 385], and Carmichael Carmichael (1963) [50 supra, 674, as a basis for his that interest was a argument Opal’s only claim Louis. Those cases are neither nor general controlling deal, here, when we as we do with a matter. Rosenthal persuasive probate and Carmichael are divorce actions. For of dissolution the purposes to the wife is the same whether her interest be described as an protection interest or a claim. The court in dissolution has broad existing general assets; context, to divide there is no power accordingly, objection fact, to an inexact of wife’s interest as a claim. In description general cases, the courts those the wives the husbands’ protected the wives had no claim to In arguments partnership property. however, the court does not have broad discretion to divide probate, assets. For that reason Rosenthal and Carmichael are inapposite. we consider the interest of four devisees.1

Finally, respondents, Opal’s devised her interest to took a Opal Thereby, respondents. they present interest to one-half of Louis’ interest. Like existing they Opal, were owners of one-half of Louis’ interest. are not creditors and need not a

Claimants specific property present 37 Cal.2d 672 creditor’s claim. P.2d 962].) Dabney {Estate of interest and therefore Opal’s respondents’ Appellants urge A claim. Code section claim than a Probate is one no more money claim, can settled Neither nor which be money only by payments. Opal’s interest, above, as is so restricted. Opal’s explained respondents’ a and as such interest. represented present existing property is, an interest and not a mere That hers was claim. The ownership in the of her estate decree of distribution that interest to probate passed Thus, the her devisees. devisees interest. Their enjoy present existing interest, course, was not but it ais claim to a community property, not general Rather, claim as estate. owners one-half of Louis’ interest. underscores that. never the fact that 1 Appellant devisees questioned Thus, the same which had

enjoyed exactly had. (present, existing) rights own, seven and one-half from death he to his approximately years paid devisees one-half of his Even when sale of profits took *7 one-half of his interest was over Never did devisees. that place paid suggest claim was involved nor that an was needed. only money account His actions are he did notion that not consider the devisees owners. To contrary him existing present Thus, that stood in shoes. seem to Louis’ argue personal, respondents is that the claim was While representative estopped asserting existing. decide, (See we need not sound. ele. Protective Assn. argument appears Arguello 97].) (1953) 118 511 P.2d Cal.App.2d [258 Croflon

703 IV contends that if the are not barred from Appellant finally respondents interest, their claim to the then the value of the asserting be at the death of In interest must determined time of the of Opal. light discussion, above be on this contention. The little need said interest of is not a the estate of Louis C. respondents but is a one-half interest of Louis C. of Ken- Kenworthy, ownership interest. This interest is the to his share of the worthy’s partnership Code, income The 15026.) § surplus partnership. (Corp. interest entitles them to share in the income and respondent’s surplus the partnership. is affirmed. judgment J.,P. concurred.

Regan, Acting

EVANS, J. I dissent.

The author of the means of semantic majority opinion, by prestidigita- tion, a novel and distinction to the nature of a attempts apply illogical interest in at the time the community partnership property community is terminated as the of a death rather than relationship consequence by dissolution. is divested majority impliedly acknowledge specific property to a In

of its character its transfer community upon instance, the in the and the community property, wife’s share is a claim in her husband’s share of the community general in the her interest assets specific community place 927, 930-931 (Rosenthal (1966) transferred. v. Rosenthal Cal.App.2d 674, v. Carmichael 385]; Carmichael Cal.Rptr. [50 Code, Moreover, subd. (2)(e).) 514]; § Corp. [31 is not a property ownership right specific partnership partner’s (Hill v. available to a Hill (1947) spouse. community property right P.2d 28].) results in a The basic majority opinion judicial import determination status as a result termination of the community upon dissolution, the the death of a as contrasted to termination spouse, nonspecific spouse’s *8 in unidentified but to a interest describ- specific nondesignated

changes the thus able specific reviving original community ostensibly property, to the as it existed to transfer The state interest prior present the law in California does not so provide. status of at the time of are here faced with the We partnership property I status. cannot the termination the and community subsequent the because to the law ascribe the distinction by majority, merely adopted death rather than dissolution. is the termination by accomplished Furthermore, the that some and the by mysterious by majority holding her in at her death the the devisees unidentified Opal replace process, interest in but and community “specific” surrogate community acquire it as as is not a best described is unidentified imaginative properties, or determination directive conclusion judicial by legislative supported in the record. facts disclosed nor is it upon predicated the to avoid conse- in semantics deals manipulative opinion interest in rule that of the established community spouse’s quences “ that Their statement is capital ‘[T]he nonspecific. properties partnership ‘the character of Louis in the had interest’ of community partnership ” his wife’ is an observation. as between him and inescapable state, assets; had no interest “Opal Again, majority interest which was interest was in Louis’ her personal assets. and distinct from the thus property separate claim; she had a than a mere more community property enjoyed Such a statement and interest existing personal property.” present rhetoric. pure judicial death, terminated. of her

At the time “community” continue with their majority legal imperative, Notwithstanding state, devised her interest to semantical respondents. “Opal magic to one-half of Louis’ took a existing they Thereby, of one-half of Louis’ were owners Like interest. Opal, author of acknowledges interest.” majority opinion Apparently, was not to the interest, which was willed specific respondents, concession, the In exact opinion and without spite description. some that the statement with an respondents, concludes unsupported “claimants of now are undefined specific property.” process, facts, a conclusion existing probate Such light law, have not is incredulous. majority which devisees or describe and cannot designate properties *9 share The decree of distribution in estate vested in her ownership. Opal’s an in devisees inchoate interest nondescribed or financial only properties death, interests. After Louis’ because of the character of the nondescript interest devised her devisees had no more than a claim assertible by Opal, Louis’ estate assets held his executor. against by a but interest:” examine the

Certainly, Opal “present enjoyed existing nature of that interest. Her in interest specific property transformed to a claim” in her husband’s share of “general at Rosenthal, the time of transfer (see Rosenthal v. partnership supra, Carmichael, and Carmichael v. Cal.App.2d supra, and her 674) husband’s as a right specific partnership property partner (Hill is not a Hill, available to the wife. community right supra, 682.) Had Louis, survived she entitled, would have been in the absence will, of a the law of intestate succession to by her share of her husband’s interest without However, of a claim. partnership her necessity upon prior death, the did not terminate her claim” a partnership “general share of Louis’ interest was willed to devisees other than those who would be entitled to Louis’ interest to his will. pursuant who death, Louis at

Opal, death did preceded not have a specific which, decree, specific partnership properly have by might rather, been she had a to a conveyed; claim to her husband’s right general interest in the She devised that to a claim rather partnership. right general than interests described in her specifically husband’s share property, That claim the estate of general against may only be asserted and devisees means of perfected by Opal’s by presentation a claim Louis’ estate. devisees were not devisees under Louis’ will. That will directed to that intended The decree in disposition contrary by Opal.

estate her a valid, devisees with uncontroverted claim provided the estate assets held Louis’ executor. In the absence aof claim timely what claim, be described as a financial asserting may only general devisees lose the to the claim in the general acquired Opal. devisees a “claim to a majority opinion acquire

interest in the and not a the estate” general law that fundamental is an association ignores Code, 15006), on business *10 § of two or more carry (Corp. persons Co. (B.K.K. means an among agreement parties. accomplished by Thus, devisees, 760].) Schultz estate, not and not could did distribution any upon Opal’s acquire Rather, will, interest in the business. by Opal’s they a financial claim to a of Louis’ share of the acquired part in the and assets. did not become They profits partners business, thus interest in specific properties. acquiring specific lifetime, not Louis’ devisees do majority deny during of the entitled to no more than one-half of Louis’ share of were profits time, received For a business. period they periodic However, be a of the when of what share profits. payments purported of shares of the failed to to them continue profits, payment share in the as did not act to their devisees profits, just perfect Louis’ death. his estate failed act following harsh is the in an obvious as That inaction does result consequence, a bar to other of a statute limitations as assert case in every application claims any proceeding. I that a claim Louis’ reasons, would conclude

For the foregoing an to the will was absolute estate the devisees under predicate as no more than relief inasmuch they acquired sought business. Louis’ interest general I would reverse the judgment. J., Evans, was 16, 1979.

A for a was denied January petition rehearing that the should be petition opinion petition granted. Appellant’s 1979. Court was denied February hearing by Supreme