IN RE: SLACK'S ESTATE.*

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

IN RE: SLACK'S ESTATE.* SPARKS et al. v. RENWICK et al.

Civ. 10866

Decided: September 16, 1938

Charles C. Boynton, of San Francisco, for appellants. W.A. Brandenburger, of Sacramento, for respondents.

In a proceeding to determine heirship arising out of section 228 of the Probate Code a contest was made between the heirs of the decedent wife and the heirs of the predeceased husband. All the property involved was acquired during coverture and is found to have been community property. The sole issue in this proceeding is the character of the property at the time of the death of the respective decedents. The probate court found that it was all community property and from the order and decree the heirs of the decedent wife have appealed.

A portion of the estate was money in a joint tenancy bank account created from the community earnings of the two spouses. This fund came to the decedent wife as sole survivor and remained her separate property distributable to her heirs alone. In re Kessler, 217 Cal. 32, 34, 17 P.2d 117; Estate of Harris, 9 Cal.2d 649, 72 P.2d 873. It is of no moment that the administratrix has used some of that fund in the payment of debts and expenses of administration. The issue is whether the property was separate or community at the time of the decease. Since none of this fund came from the separate property of the husband, the question of a gift inter vivos does not arise.

An undivided one-half interest in the real property came to the decedent wife by deed in 1917. This interest she held as tenant in common until the death of her husband in November, 1931. (Sec. 164, Civ.Code.) The presumption arising under that section, that such interest was the separate property of the decedent wife from the date of the transfer, has not been controverted by any evidence. The conclusion follows that such interest must be held to be the separate property of this decedent. Dunn v. Mullan, 211 Cal. 583, 588, 296 P. 604, 77 A.L.R. 1015.

As stated in the case last cited, the other half of this property, which was conveyed to the husband in the same deed, became the community property of the marriage. Such interest the husband conveyed to his wife by deed executed in 1923 and delivered a few days before his death in 1931. The evidence of delivery is complete and uncontroverted. The presumption arising from possession has not been rebutted. Respondents stress the testimony that the parties, at some time, made joint deeds each conveying to the other the respective interest held. The testimony does not disclose when these joint deeds were made and none from the wife was produced. But, even so, the effect of the deed in evidence is not destroyed by the fact that the wife also might have made a deed at the same time. It is possible that when this deed was delivered, the other was destroyed by mutual consent and that the intention of the parties was not different from that expressed in the instrument.

It is argued that the delivery was conditional because the grantor told his wife to record it if anything should happen to him. This statement was made at a time when the grantor was in fear of approaching death. It does not constitute a conditional delivery—merely an injunction for the wife's protection. If it was intended as a qualified, or conditional delivery, it was ineffectual. (Sec. 1056, Civ.Code.) Being oral and inconsistent with the written instrument, it does not affect the absolute conveyance of the interest found in the instrument. 9 Cal.Jur. p. 166; Stewart v. Silva, 192 Cal. 405, 410, 221 P. 191.

The fact of delivery not having been controverted, the deed effectively passed all title of the husband to the wife as her separate property. This interest in the realty, like all the other property of the estate, is distributable to the heirs of the decedent wife alone, and there is no case for the application of either sections 228 or 229 of the Probate Code.

The decree is reversed.

NOURSE, Presiding Justice.

We concur: STURTEVANT, J.; SPENCE, J.