IN RE: ABDALE'S ESTATE. (1946)

The only question involved in this appeal is whether the probate court of Los Angeles County, acting upon a petition to determine heirship, correctly decreed that the respondent, Charles Raymond Randall, was entitled under section 229 of the Probate Code to take all the property left by William Abdale when he died intestate.

Section 229 is found in Division II of our Probate Code having to do with ‘Succession,’ defined by section 200 as ‘the acquisition of title to the property of one who dies without disposing of it by will.’ Section 229, so far as pertinent to this case, reads as follows: ‘If the decedent leaves neither spouse nor 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, or became vested in the decedent on the death of such spouse by right of survivorship in a homestead or in a joint tenancy between such spouse and the decedent, such property goes in equal shares to the children of the deceased spouse and to their descendants by right of representation * * *.’ (Italics ours.)

Mr. Abdale acquired real estate in Los Angeles County prior to 1921. On August 13, 1929, he married Anna Marie Van Lund Randall Becker. The real estate which was his before that marriage constituted his only asset; as such, it was his separate property. It appeared from the testimony in the case that he had retired before his marriage and had no gainful occupation thereafter, so no question of community property arises. On December 15, 1930, Mr. Abdale, his wife joining, executed a grant deed of the real estate to a ‘dummy’ who immediately thereafter and on the same date deeded it back to William Abdale and Anna Marie Abdale, as joint tenants with right of survivorship. Mrs. Abdale died on February 14, 1941, and her husband, the surviving joint tenant, was once again the sole owner of that property. He died on February 2, 1943, without issue. He had sold the real estate above mentioned shortly before his death and it was stipulated by counsel that the money and securities which comprised all of his estate constituted a transmutation from the real estate. The appellants are all of the blood relatives and next of kin of William Abdale. The respondent is the only issue of Anna Marie Abdale, being her son by a prior marriage. He was not a blood relative of the decedent, William Abdale.

The appellants, in contending that section 229 of the Probate Code is not applicable, point out that under the ordinary rules of succession they would be entitled to inherit the estate, Probate Code, secs. 220–227, and argue that the respondent has not brought himself within two exceptional rules of succession, namely, sections 228 and 229, Probate Code. They state that section 229 would be applicable only if the property were first the separate property of the predeceased spouse [Anna] before it became joint tenancy property; that it has no application where, as in the instant case, it was originally the separate property of William, the surviving spouse of Anna. They argue that such an interpretation of the statute would give proper effect to the purpose of the legislature in its enactment of the laws which later became crystallized in sections 228 and 229 of the Probate Code; namely, a return of property to the members of the family from which it came originally. The construction for which they contend would require an interpolation in section 229 which we have no authority to make. But, giving the statute its natural effect as written, we believe that appellants are entitled to participate in the estate in a proper portion. It appears that Mrs. Abdale received her interest as joint tenant in the real estate which her husband had acquired before marriage as a gift from him. Such a gift, under California law, is not community property. It is separate property, and that was the character of Mrs. Abdale's interest in the real estate while she lived (see Civil Code, secs. 162, 163 and 164). Her husband, of course, had an interest equal to hers in the same property while the joint tenancy continued and his interest was also separate property. ‘Upon the creation of the joint tenancy ownership, each owned their interest therein as separate property.’ Estate of Harris, 1937, 9 Cal.2d 649, at page 659, 72 P.2d 873, at page 878. When Mr. Abdale's wife died her interest passed to him as survivor. It would be proper, therefore, under the provisions of section 229 to distribute to the respondent a share of the estate equal to the portion which Mrs. Abdale had at one time owned as her separate property, namely, a one-half interest. As we read section 229, it does not mean necessarily that all the estate of which a person may die possessed, leaving no will, spouse or issue, shall go to the children of a predeceased spouse, but only such ‘portion thereof’ as was the separate property of the latter. In the instant case that portion, as we have seen, was limited to not more than a one-half interest.

The order of the probate court, therefore, is modified in such manner as to determine that Charles Raymond Randall is heir to one-half of the estate of William Abdale, the other one-half to be distributed to the other heirs, appellants, as their interests may appear.

As so modified the order is affirmed.

DESMOND, Presiding Justice.

SHINN and WOOD, JJ., concur.