94 P. 94 | Cal. | 1908
This action was instituted October 16, 1903, by Rosetta S. Ingersoll against her husband, C.K. Ingersoll, to enforce an alleged trust as to certain real and personal property standing in the name of defendant, and to obtain an accounting from defendant as trustee, and a judgment against him for any money that should be found due plaintiff thereon. Mrs. Ingersoll died prior to the trial of the action, and the executor of her will has been substituted as plaintiff. This is an appeal by plaintiff from the judgment given in favor of defendant and from an order denying a motion for a new trial.
The theory of plaintiff's case, as shown by the complaint, was that the property in controversy was the proceeds of money constituting separate property of Mrs. Ingersoll, and that such money had been received by defendant with her acquiescence and consent, upon the understanding and agreement that he should receive and hold the same and all property in which the same might be invested, if invested in his name, in trust for her use and benefit. The defendant, by his answer, admitted the acquisition by his wife by gift, bequest, *5
or devise, of some twenty thousand dollars or thereabouts, and the receipt and subsequent control and possession of a large portion thereof by himself, but denied any agreement that he was to hold the same in trust for her. He alleged, on the contrary, that the understanding was that all the money so delivered to him should thenceforth be treated as community property, and that it was always so considered and treated, and that his wife converted it into community property. The trial court found in favor of defendant upon these matters. There can be no doubt that a husband and wife may by contract transmute the separate property of either or both into community property. (Yoakam v. Kingery,
We are of the opinion that the evidence cannot be held legally insufficient to support these findings. It may be conceded that the mere acquirement of the possession of a wife's separate property by the husband, and his subsequent management and control of the same, all with her consent, do not show any intent on the part of the wife to make a gift of the property to the husband, or to change its status from separate to community property. The presumption in such a case appears to be that the property continues to be the separate property of the wife, and that the husband takes it in trust for his wife. Under such circumstances it devolves on the husband claiming a gift or change in the status of the property to show the same. This is the well-settled rule as to the corpus or principal (see Stickney
v. Stickney,
It is manifest, however, that the defendant's evidence was most material in the determination of the questions embraced in these findings. In fact, defendant's case rested almost entirely upon that evidence. The case, viewed in the most *7 favorable light to defendant, was a close one on the facts, and the lower court could not determine the issue in his favor unless it gave full faith and credit to his positive statements as to many matters discussed by him in his testimony, and as to which there was no other evidence in support of the findings. We say this much as a preliminary to the discussion of a ruling of the court admitting certain evidence, which under the peculiar circumstances detailed we consider prejudicially erroneous, if erroneous at all.
Defendant offered evidence in support of his character as to truth, honesty, and integrity, and over the objections of plaintiff that no attempt had been made to impeach the character of defendant, and that the evidence was incompetent, irrelevant, and immaterial, defendant was allowed to introduce the evidence of three witnesses to the effect that his reputation in the respects mentioned was good. As a matter of fact, no impeachment of the character of the defendant had been attempted, other than such impeachment as was involved in the production of evidence contradicting that of the defendant on some of the issues in the case in some minor respects. This evidence, really offered for the purpose of bolstering up the evidence of defendant, was, in our opinion, clearly inadmissible. Our statute provides: "Evidence of the good character of a party is not admissible in a civil action, nor of a witness in any action, until the character of such party or witness has been impeached, or unless the issue involves his character." (Code Civ. Proc., sec. 2053) The issue in this case did not involve the character of defendant as a party (see Van Horn v. Van Horn,
Learned counsel for defendant contend that for certain reasons this evidence was not prejudicial to plaintiff, but we see no force in their claim. It is said that such testimony was merely in harmony with the presumption that a witness speaks the truth (Code Civ. Proc., sec. 1847), and did not affect the result of the trial. The presumption that a witness speaks the truth is one that may be repelled by the manner in which he testifies and by the character of his testimony. (Code Civ. Proc., sec. 1847.) It is impossible for this court to say how much weight and influence this evidence of good reputation of the witness had upon the mind of the trial judge in determining the amount of credit to be given to his testimony. As has been said before, under the peculiar circumstances of this case, it "may have been all-powerful to that effect," and may have been the factor that turned the scale in favor of defendant upon the matters embraced in the findings we have discussed. Counsel for defendant evidently thought it was important evidence, or they would not have offered it, and the trial judge evidently considered it material, or he would not have admitted it. If the trial court was led to place more reliance upon the testimony of defendant by reason of such evidence of reputation than he would otherwise have done, and we cannot say that this was not the result, plaintiff was clearly prejudiced by the rulings admitting it. (See, generally, Rulofson v. Billings,
The record shows that some of the money of the wife that came into the hands of the husband was clearly traced into certain property by evidence that was practically without conflict, and in this respect the findings of the court that the money could not be traced are not fully sustained by the evidence. If there was no change in the status of the wife's separate property, and a portion thereof was clearly traced, plaintiff was entitled to the relief asked for that portion, even if under the pleadings as they now stand it could not obtain relief as to the portion not traced, which is the claim of defendant. We do not, however, desire to be understood as conceding the correctness of this claim.
The objection that some of the findings involved in our discussion of the case are not attacked by specification of insufficiency is not well taken.
While some other questions are discussed by counsel, we deem it unnecessary to consider any of them on this appeal.
The judgment and order denying a new trial are reversed.
Shaw, J., and Sloss, J., concurred.