IN RE: REIZIAN'S ESTATE. (1950)

Appeal from a decree of distribution. The only part of the decree attacked is that distributing a parcel of realty to respondent Henry Arten Baloian.

In the decree the court found that the parcel of realty was the separate property of the deceased. Appellant insists the finding is without support in the evidence.

The property was acquired by deceased during marriage in her name alone. Title remained in her name until her death. The presumption is that it was her separate property. Civ.Code, § 164. The presumption itself is evidence. Stafford v. Martinoni, 192 Cal. 724, 738, 221 P. 919. The presumption is sufficient to sustain the finding that the property was the separate property of the deceased. Volquards v. Myers, 23 Cal.App. 500, 504, 138 P. 963; Rhea v. Thomson, 115 Cal.App. 466, 471, 1 P.2d 1091; Palen v. Palen, 28 Cal.App.2d 602, 604, 83 P.2d 36. It was for the trial court to determine whether the evidence of appellant was sufficient to overthrow the presumption. Stafford v. Martinoni, 192 Cal. 724, 738, 221 P. 919.

The presumption was buttressed by other evidence. When the deceased purchased the property she alone signed a note, as a part of the purchase price, and a deed of trust securing the same. She alone paid the note. She secured policies of insurance on the property showing that she was the owner. The evidence sustains the finding that the property was the separate property of the deceased.

On July 6, 1945, the deceased and her husband executed separate wills. Each will contained this statement: ‘I further declare that all of the property of which I am possessed is community property.’ Appellant argues that by the execution of the wills the deceased and her husband agreed that all their property was community property and thereby transmuted the parcel in controversy from separate property of the wife to community property. There is no evidence of any express agreement to that effect. The separate wills did not constitute an agreement between the parties. There is no evidence that the will of the deceased was made pursuant to an agreement or understanding between them. The statement in the will of the husband was a self-serving declaration. The statement in the will of the deceased was a declaration against interest and admissible in evidence as such. Wilson v. Wilson, 76 Cal.App.2d 119, 124, 172 P.2d 568. Whether in a particular case a husband and wife have agreed to transmute the character of property is a question of fact for the trial court. Wheeland v. Rodgers, 20 Cal.2d 218, 222, 124 P.2d 816; Estate of Wooten, 64 Cal.App.2d 96, 102, 148 P.2d 33; 3 Cal.Jur. 10-Yr. Supp., p. 573, sec. 75; p. 642, sec. 128. The declaration against interest merely created a conflict with the presumption and the evidence supporting the presumption. The weight to be given the declaration of the deceased as against the presumption that the property was her separate property, and the other evidence in support thereof, was for the trial court. Estate of Lissner, 27 Cal.App.2d 570, 576, 81 P.2d 448; Monnette v. Title Ins. etc. Co., 107 Cal.App. 313, 316, 317, 323, 290 P. 668. Its determination cannot be disturbed on appeal.

Affirmed. Respondent to recover his costs on appeal.

VALLÉE, Justice.

SHINN, P. J., and PARKER WOOD, J., concur.