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


Civ. 14141.

Decided: October 23, 1950

Lorne M. Stanley, San Francisco, for appellant. Carlson, Collins & Gordon, Frederick Bold, Jr. and Harold F. Sawallisch, all of Richmond, for respondent.

Two causes were joined for hearing to determine heirship to several parcels of real property, some standing of record in the name of the deceased husband, some standing in the name of the deceased wife. A minute order judgment was entered decreeing that all parcels in the name of the deceased wife were her separate property. No appeal was taken and that judgment has become final. Judgment was then entered in the Estate of Andrew Wieling decreeing that all parcels standing in the name of the deceased husband were his separate property and went to respondent by will. From this decree the children and heirs of the predeceased wife (who were the step-children of Andrew Wieling, deceased) have appealed.

Such facts as were proved by competent evidence are not disputed. The appeal is based on the ground that the judgment is against law.

The parties were married in 1912. The husband was a laborer; the wife owned some cows and sold milk. Her five children worked and turned in their wages to her. In 1916 the parents acquired the ‘home’ property. Title was taken in the name of the husband alone. In 1919, 1921, 1922, and 1923 the remaining parcels were acquired in the same manner. In 1921, 1922, 1925 and 1926 the lots which are not involved in this proceeding were acquired in the wife's name.

The respondent was born to this couple in 1912. His entire case rests upon his own self-serving testimony as to what was told him by his parents regarding their respective estates in these parcels acquired from 1916 to 1926. Specifically his testimony is that, in October, 1925, when Lot 9 of Block 5 was acquired in the wife's name, he heard his father ask his mother, ‘Why wasn't it good enough to keep all of it in the community.’ She said, ‘I am going to have half of it in my name and half in your name, and we each have our own property, and there won't be any trouble about it.’ (Emphasis ours.) And, again, ‘My mother was going to have half of the property in her name, and my father was going to have half in his name, and she was going to build up until she got that much * * *. That plan was followed out right to a ‘T’.' (It should be noted that this conversation occurred many years after the parcels in suit were acquired, that the parcels standing in the name of the husband were appraised at $14,500 while those in the name of the wife were appraised at $7,150. If the parties agreed in 1925 to divide their holdings equally such agreement was never consummated. If that agreement could be sufficient to deprive the wife of her community interest in the properties standing in the husband's name it could be effective only on the condition that the husband would acquire other property in her name to equalize the holdings. Since this was not done the case for respondent rests upon an unexecuted oral agreement to transfer an interest in real property.)

After the marriage Mrs. Wieling received $13,800 in insurance paid on the death of one of her sons. Respondent testified that he had heard that his father had received two legacies of $2,500. No evidence was offered to show what was done with this money. There is direct and undisputed evidence that Mrs. Wieling purchased Lot 14 of Block 4, the home lot, with her separate funds. The same is true of the purchase of Lot 21 of Block 7, Lots 4, 17 and 18 of Block 4. As to the source of the funds used for the purchase of Lots 13 and 15 of the same block we find no evidence. Thus five of the seven parcels awarded to respondent were purchased by the wife with her own funds during coverture.

Section 163 of the Civil Code, in defining the husband's separate property reads: ‘All property owned by the husband before marriage, and that acquired afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is his separate property.’

Section 164 reads: ‘All other property acquired after marriage by either husband or wife, or both, * * * is community property’.

Section 1091 of the same code reads: ‘An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law, or by an instrument in writing, subscribed by the party disposing of the same, or by his agent thereunto authorized by writing.’

Though the statutory law providing the means by which a wife may acquire and transfer her interest in community real property seems clear, our authorities hold that a wife may dispose of her interest by parol. In this respect there has been a distinct cleavage between the legislative mind as expressed in the statutory law and the judicial opinion or interpretation of those statutes. Though the statutes have declared that title to realty can be transferred only by an instrument in writing the later cases have held that, though no fraud is shown, oral testimony may be taken to prove that a written document creating a joint tenancy interest was in fact intended to create a community interest. Many of the cases so holding are cited in Tomaier v. Tomaier, 23 Cal.2d 754, 757, 758, 146 P.2d 905, 906, from which we quote: ‘It is the general rule that evidence may be admitted to establish that real property is community property, even though title has been acquired under a deed executed in a form that ordinarily creates in the grantee a common law estate with incidents unlike those under the law of community property. Thus land may be shown to be community property even though it is granted to one spouse alone as his or her property in fee simple. Jaegel v. Johnson, 148 Cal. 695, 84 P. 175; Hammond v. McCollough, 159 Cal. 639, 115 P. 216; Hibernia Sav. & Loan Soc. v. DeRyana, 210 Cal. 532, 292 P. 632; In re Estate of Cronvall, 220 Cal. 503, 31 P.2d 372.

‘Again, it may be shown that husband and wife intended to take property as community property even though they accepted a deed drawn to them as tenants in common. Trimble v. Trimble, 219 Cal. 340, 26 P.2d 477; Steere v. Barnet, 54 Cal.App. 589, 202 P.166. It has in fact been held unequivocally that evidence is admissible to show that husband and wife who took property as joint tenants actually intended it to be community property. Hulse v. Lawson, 212 Cal. 614, 299 P. 525; Jansen v. Jansen, 127 Cal.App. 294, 15 P.2d 777; see Minnich v. Minnich, 127 Cal.App. 1, 8, 15 P.2d 804; Horsman v. Maden, 48 Cal.App.2d 635, 640, 120 P.2d 92. Such rulings are designed to prevent the use of common law forms of conveyance to alter the community character of real property contrary to the intention of the parties.

‘Moreover, it is well settled that property may be converted into community property at any time by oral agreement between the spouses (Kenney v. Kenney, 220 Cal. 134, 30 P.2d 398; In re Estate of Watkins, 16 Cal.2d 793, 797, 108 P.2d 417, 109 P.2d 1; Title Insurance etc. Co. v. Ingersoll, 153 Cal. 1, 94 P. 94; In re Estate of Kelpsch, 203 Cal. 613, 265 P. 214), and an agreement at the time the property is acquired has the same effect.’

Following the Tomaier case the Supreme Court reaffirmed the rule in Huber v. Huber, 27 Cal.2d 784, 167 P.2d 708, stating that, ‘an oral agreement to convert property into community property may be established’, 27 Cal.2d at page 788, 167 P.2d at page 711, and that cited cases held ‘that husband and wife may be written or executed oral agreement change the character of their property.’ 27 Cal.2d at page 789, 167 P.2d at page 711. If the rule depends upon proof of an ‘executed’ oral agreement it is not applicable here because the undisputed evidence is that all the properties acquired after the purported agreement were purchased solely with the funds of the wife derived from the proceeds of insurance upon her deceased son. Furthermore the evidence is undisputed that, following the purported agreement, properties were not purchased by either spouse to complete respondent's version of the oral contract that each party should have as his separate property an equal share of the whole.

If the rule of the cases cited is that husband and wife may change the character of their community real property by an executed oral agreement then the respondent has failed to prove his case and the judgment should be reversed. But there are so many authorities cited with approval in the Tomaier and Huber cases which do not limit the rule to one of an executed oral agreement that we are compelled to hold that the more elastic interpretation applies here.

The suggestion was made that the purported contract of conveyance was a fraud upon the wife under the rule of McKay v. McKay, 184 Cal. 742, 746, 195 P. 385, interpreting section 2235 of the Civil Code. Supplemental briefs were filed discussing the question which have not been helpful. The correct answer is that there is no evidence of fraud in the contract and that fraud was not pleaded. If fraud occurred it was in the husband's failure to purchase new properties after the contract as the separate property of the wife in order to bring the respective holdings equal. And there was no allegation or proof that the husband entered into the contract with the intention of not performing it.

The decree is affirmed.

NOURSE, Presiding Justice.

GOODELL, J., concurs.