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District Court of Appeal, Second District, Division 1, California.

Allan Lee WOODS, Plaintiff and Appellant, v. SECURITY FIRST NATIONAL BANK, etc., et al., Defendants and Respondents.*

Civ. 20885.

Decided: July 18, 1955

Guerin & Guerin; John J. Guerin, Los Angeles, for appellant. Benjamin S. Crow, Los Angeles, and Rex W. Kramer, Monrovia, for respondent.

Plaintiff, the surviving husband of Eugenie A. Norton Woods, deceased, appeals from that portion of a judgment which declared that said husband has no interest in certain real and personal property standing in the decedent's name, claimed by the husband to have been transmuted into community property by oral agreement.

The complaint ‘to quiet title, for declaratory relief, for recovery of possession of personal property and for money had and received’, alleges that the Security Bank, as executor of the wife's estate, had possession of certain cash and other items of property claimed as community property; and that the other defendants, named as beneficiaries under the wife's will claim an interest in the real property adverse to plaintiff's alleged superior right.

It appears that the wife died on May 28, 1949; that a short time previous thereto, namely, on January 14, 1949, the plaintiff married said wife, then about the age of 91 years. It is alleged ‘That on a number of occasions subsequent to the marriage * * * plaintiff and decedent orally agreed that all property of the decedent was the community property of decedent and the plaintiff herein’. In a second count the complaint alleges ‘That on or about the 14th day of January, 1949, the said decedent orally conveyed to the plaintiff herein all her right, title and interest in and to all her property, both real and personal, to take effect upon her death’, and, ‘That plaintiff contends that upon the death of the said decedent the plaintiff became the owner of all the property of said decedent’.

The trial court found that ‘Prior to her marriage with plaintiff said decedent orally agreed with him that if they were married all of her property would become community property and would become his property at her death’; also that after the marriage, ‘she orally declared to plaintiff and to others that by reason of said marriage the property had become the community property of herself and plaintiff and would become his after her death, to which statement plaintiff assented; and said decedent intended by such declarations to transmute her separate property to community property.’

It was further found that at the time of the marriage, ‘and thereafter, plaintiff was possessed of no property, except items of personal use and adornment. He had no real estate, he had no bank account, no stocks, bonds or securities; he had no cash except approximately $10. After the said marriage plaintiff earned no money and contributed nothing in the way of property, money, or otherwise, to the community. After the marriage, said deceased did nothing in the way of transmutation of her separate property, except to make the oral declarations hereinbefore stated; she did not part with the control of any of said property or put the possession of any of it in plaintiff’. The decedent's oral declarations that the property was community property were ‘never followed by any action on the part of her or the plaintiff to transfer title, control, or possession’. The trial court therefore concluded that the surviving husband had no interest in any of the real or personal property with the exception of the household furnishings and a Buick automobile.

It is appellant's contention that the trial court's ‘basic error’ was ‘his conclusion that the oral agreement of the transmutation was not executed or consummated’. In addition, appellant presents a ‘Moral Argument’ that, since plaintiff ‘has proved both a pre-nuptial and post-nuptial agreement wherein he was to receive the property of the decedent’, it ‘seems ridiculous * * * that purported legal technicalities should operate to frustrate the intent of a property owner, especially as between husband and wife’.

To this latter argument respondents answer that ‘there is nothing moral about the situation that this case presents. The idea that an old lady of 91 years should purchase a marriage with her young chauffer by a promise to give him all her property goes counter to our idea as to the sanctity of marriage and its purpose. That upon her death four and a half months after the marriage he should claim the property standing in her name without contributing one cent to the value or assuming any of the duties of its management and control, is repugnant to our sense of justice and fair dealing’. Appellant, however, views the matter in a different light, and calls attention to testimony that before the marriage decedent stated: ‘This is no romance, this is a business proposition. I am marrying Allan so that he can have my property. He is the only one I can rely on’.

The trial court's decision that the proposed transmutation of decedent's property from separate to community property was never consummated or executed, and that therefore the surviving husband had no interest therein, must be sustained. The cases cited by appellant, holding that in certain peculiar circumstances, a transmutation into community property had taken place pursuant to an oral agreement between husband and wife, are, as respondents point out, predicated upon factual situations not present in the instant litigation.

In Estate of Raphael, 91 Cal.App.2d 931, 938, 206 P.2d 391, 395, the trial court found that the transmutation had been effected “by an oral agreement which was fully executed and corroborated by documentary evidence”, namely income tax returns filed in the names of both spouses. This opinion states that ‘All that is required to show an executed oral agreement of transmutation is proof of the parties' acts and conduct in dealing with their property. * * * The income tax returns * * * constitute evidence of the fact that the parties regarded their property as community property’.

In the present case there is no evidence showing that the parties in any manner dealt with the property as community property. The trial court found that decedent ‘did not part with the control of any of said property or put the possession of any of it in the plaintiff; she retained her bank account in her own name subject only to her right of withdrawal; she retained her safe deposit box in her own name’, ect.

As appellant avers, it is well settled that separate property may be transmuted into community property and that an oral agreement may evidence the parties' intention so to do, but the cases cited do not support the contention that this was the situation in the present case. Tomaier v. Tomaier, 23 Cal.2d 754, 146 P.2d 905, merely holds that property deeded to husband and wife in joint tenancy may be deemed community property where it was purchased with community funds. And in Kenney v. Kenney, 220 Cal. 134, 136, 30 P.2d 398, 399, the very point of the decision was that the oral agreement had been consummated by the subsequent actions of the parties, ‘concerning the selling, purchasing, mortgaging, and improving of said property’. The present case lacks the particular elements upon which these cases turned.

Appellant also argues that the decision of the probate court on plaintiff's petition to determine interest in the wife's estate and for a probate homestead, to the effect that the property was community and not separate in nature, ‘is res judicata on the matter of community property’. The respondents' brief, however, points out that in the present action to quiet title, the trial court made no specific finding as to res judicata, ‘doubtless, because such adjudication was not pleaded’.

The trial court, after hearing the proof and observing the demeanor of parties and other witnesses, did find that the property in question was the wife's separate property in which the surviving husband had no interest for the reason that the proposed transmutation had never taken place, and that the husband had ‘contributed nothing in the way of property, money or otherwise, to the community’. On this present appeal, which contains no transcript of the evidence, such finding and judgment must be viewed with ‘every reasonable and deducible inference and presumption favorable to the judgment’. Tyra v. Board of Police & Fire Commissioners, 101 Cal.App.2d 248, 250, 225 P.2d 617, 619.

In the state of the present record, it cannot be determined what, if any, evidence may have been introduced at the trial in respect to the alleged prior adjudication, or even whether such matter was made a proper issue for the trial court to determine. Such being the situation, on the instant appeal it would obviously be improper to indulge in any speculation on this subject, for which reason further discussion is uncalled for.

Appellant's claim that the property was community in nature is predicated upon the assertion that there were both pre-nuptial and post-nuptial agreements of transmutation. Such matters as consideration, the Statute of Frauds, etc. are apparently by-passed, and the contentions made seem to seek to modify or destroy long established and salutary principles concerning real property tenure.

The findings of fact support the judgment rendered in favor of the respondents, no reversible error has been pointed out, and it cannot be said that the decision of the trial court violates any fundamental rights, legal or moral, possessed by the appellant.

The judgment is affirmed.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.

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Docket No: Civ. 20885.

Decided: July 18, 1955

Court: District Court of Appeal, Second District, Division 1, California.

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