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District Court of Appeal, Second District, Division 2, California.


Civ. 11872

Decided: July 06, 1938

Eckman & Lindstrom, Arthur W. Eckman, Ralph G. Lindstrom, and R.L. Moore, all of Los Angeles, for appellants. Voltaire Perkins, of Los Angeles, H.B. Jack Manard, of Kansas City, Mo., and Anderson & Anderson, of Los Angeles, for respondent.

The heirs at law of the deceased, Viola L. Allshouse, presented a petition to the lower court for determination of heirship. They now appeal from a judgment whereby it was decreed that Harry A. Allshouse, Jr., is entitled to distribution of the property in dispute in this litigation.

The deceased and Harry A. Allshouse, Sr., were married in the year 1919 while both were domiciled in the state of Missouri. Their marital domicile remained in Missouri until the death of Mr. Allshouse on March 1, 1931. After her husband's death Mrs. Allshouse became domiciled in California. She died on April 1, 1936, a resident of California, without issue. The husband with his own funds purchased certain real estate in Missouri and also became the owner of certain personal property. He caused the title to the real estate to be placed in his own name and that of his wife, thereby creating what is known in Missouri as a tenancy by entirety. In the year 1929 he transferred approximately one-half of his personal property to his wife and in the same year the Missouri real estate was traded for California real estate and title was taken by the husband and wife in joint tenancy. Thereafter the husband quitclaimed his interest in the property held in joint tenancy to his wife. The wife received the furniture by the husband's will, which was probated in Missouri.

The contestant, Harry A. Allshouse, Jr., is the son of the predeceased spouse of the decedent by a previous marriage. The trial court held that the property in dispute was acquired by the decedent by gift from her husband from his separate property during his lifetime and that it should be distributed to the respondent in accordance with the provisions of section 229 of the Probate Code, which are as follows: “If the decedent leaves no issue, and the estate or any portion thereof was separate property of a previously deceased spouse, and came to the decedent from such spouse by gift, descent, devise or bequest, such property goes in equal shares to the children of the deceased spouse and to their descendants by right of representation, and if none, then to the parents of the deceased spouse in equal shares, or if either is dead to the survivor, or if both are dead in equal shares to the brothers and sisters of the deceased spouse and to their descendants by right of representation.”

There can be no question but that the property came to decedent by gift from her husband. The question involved therefore requires a determination whether the property “was separate property of a previously deceased spouse”. This question must be considered in view of the purpose of the legislature in enacting section 229 of the Probate Code, which has been well set forth in Estate of Putnam, 219 Cal. 608, 611, 28 P.2d 27, 28: “The reason and purpose of section 229 of the Probate Code is, in the absence of testamentary disposition, to turn the property back to the family from which it came, rather than to permit it to descend to the wife's family. In other words, the section was designed to benefit the natural objects of the bounty of the former owner.” The issue whether the property which “came to” Mrs. Allshouse was the separate property of her husband must be determined as of the date on which the property was acquired by the husband. “The character of an acquisition, whether a movable or an unmovable, is fixed at the time of the acquisition.” Treatise on the Law of Community Property by McKay, 2d ed., sec. 198, p. 152.

In the state of Missouri there is no community property law and property is held under the common-law rules. Personal property in Missouri owned by the husband is under his exclusive control, subject only to the provision that he may not dispose of it in expectation of death for the purpose of defrauding his wife of her dower rights given by statute. In Dyer v. Smith, 62 Mo.App. 606, 608, it is stated: “It has been well settled by a long and unbroken line of appellate court decisions in this state, that, ‘although dower is given in personal estate by our statute, yet it was not thereby intended to restrain the husband's absolute control of it during his life, to give and dispose of it as he wills.’ ” And in Crecelius v. Horst, 89 Mo. 356, 358, 14 S.W. 510, 511, it is stated: “By the laws of this state, the widow is endowed in the personal property of the husband, but she is endowed in such personal property only as he owned at the time of his death. Until then he may dispose of such property without her consent, freed from any claim for dower.” When Mr. Allshouse, Sr., purchased the Missouri real estate with his own funds, his personal property, and placed the title in the names of himself and wife, he made a gift to his wife, a gift whereby she acquired her interest in the property from funds which were of the sole ownership of her husband. In Alexander v. Alexander, Mo.App., 44 S.W.2d 872, it is held (page 874): “Where real estate is purchased by the husband and he has a deed thereto made to himself and wife, as husband and wife, they become tenants by the entirety, and the presumption is that he took the deed as he did as a gift or provision for his wife. * Evidence to overcome this presumption must be clear, cogent, and convincing, as well as definite and positive.” Although property has not been classified as “separate” property under the laws of Missouri a California decision has recognized property owned by the husband there as separate property. In Brunner v. Title Ins. & Trust Co., 26 Cal.App. 35, 145 P. 741, the court was considering a case in which the property had been acquired by the husband. A controversy arose as to the effect of a gift from the husband to the wife, whether it was a gift or a transfer of property to be held in trust. The court said (page 742): “According to the laws of the state of Missouri, where all of the money above mentioned was acquired by the defendant, that money and the proceeds thereof in any form, in the absence of any gift thereof by the husband to the wife, remain his separate property.”

In a number of cases the California courts have been called up to determine the status of property transferred to California from common-law states in which no provision is made for separate and community property, with the result that the California courts have recognized property in the ownership of one of the spouses in the common-law states as “separate” property. In Estate of Thornton, 1 Cal.2d 1, 33 P.2d 1, 92 A.L.R. 1343, the property involved was acquired by the husband and wife while they were domiciled in the state of Montana. The court held that (page 2) “under the laws of that state, it was the husband's separate property, subject only to the wife's dower rights”. In Estate of Warner, 167 Cal. 686, 140 P. 583, the court reversed a judgment in which certain lands had been held by the trial court to be community property. Warner had resided in Illinois, where there is no law of separate and community property, but where the wife has the common-law right of dower. From his own funds he purchased real estate in California. The court held (page 585): “It follows that the finding upon the status of the property in California was erroneous, for it is well settled that separate personal property, enjoyed under the laws of the domicile by one of the spouses at the time it was acquired, is not lost by its investment in real property in another jurisdiction where a different law is in force.” In Estate of Arms, 186 Cal. 554, 199 P. 1053, the decedent, a resident of Illinois, had accumulated by his own efforts property in Illinois and in California. The court said (page 1056): “What has been said establishes the fact that the property which Harrison Arms accumulated and earned in Illinois, during coverture, was not community property of the marriage, but was his separate property. * Doubtless the incidents of ownership of separate property in Illinois are not precisely identical with the incidents of such ownership here, for the laws of the respective states relating to the use, enjoyment, disposition, and descent of property are not identical in all respects. But there is no substantial difference between the idea of separate property, as we understand it, and the conception of it prevailing in Illinois.” In Shea v. Commissioner, 9 Cir., 81 F.2d 937, the court recognized as separate property certain property acquired through the efforts of the husband in Oregon, where there is no community property law. The court said (page 939): “So far as the petitioner's interest therein was acquired by descent or owned by him while he was domiciled in Oregon, it constituted his separate property under the law of Oregon which does not recognize community property. After the petitioner became domiciled in California, it remained his separate property under the law of California.”

The general rule is concisely stated in 31 Corpus Juris, at page 16: “Property acquired by the husband in a common-law state or country, and there known and classified simply as his property, and in which the wife has no vested interest corresponding to her interest in community property, is, by the law of community, classified as his separate property with all the rights incident to that class of property under the law of community.”

We are not so much concerned with the name by which the property was known in the state of Missouri as we are with the incidents of the ownership in Mr. Allshouse. We must consider the essential rights which were vested in Mr. Allshouse at the time he acquired the property in Missouri. Although the property which came to decedent by gift from her husband was not specifically classified in Missouri as separate property, it nevertheless was possessed by him before the gift to his wife under ownership having “no substantial difference” from “the idea of separate property as we understand it”. Since decedent died without issue and without disposition of the property by will or otherwise it now passes to the heir of her predeceased husband as provided in section 229 of the Probate Code.

The judgment is affirmed.

WOOD, Justice.

We concur: McCOMB, J., CRAIL, P.J.

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