DE BOER v. NEILSON (1961)

Claimants Wade H. Coffill, as trustee, Edwin Neilson and Hazel DeBoer, son and daughter of deceased Charles C. Neilson, appeal from a judgment rendered in a proceeding to determine heirship in which the jury returned a special verdict by which it found the majority of the items of property in decedent's estate to be community property.

Decedent, a grain farmer, was married to Ethel Neilson until her death in May 1939. Two children, Hazel DeBoer and Edwin Neilson, were born of this marriage. Upon the death of Ethel, certain farm land and equipment which they had acquired became the sole property of Charles.

In September 1939, decedent married claimant, Ines B. Neilson, who at that time owned no property. Decedent was then farming approximately 2,000 acres of grain land and the estimated value of the real and personal property owned by him was approximately $66,000.

Charles died testate in 1958. His will declared that all the property was his separate estate and represented the accumulation of himself and his former wife, Ethel; that nothing was to be left to Ines; that a portion of the estate was to be used to establish a trust with the income for life to his son, Edwin; that upon his death such portion of the estate was to be distributed to Edwin's children; and that the remainder of his estate was to go to his daughter, Hazel DeBoer. As a consequence of this will, Ines elected to take her statutory share.

The principal contention of claimants is that there was insufficient evidence to support the jury's special verdict that the various items of property in dispute were community property.

‘The rules relating to the province of the trial court and of the appellate court are the same in a proceeding of this kind as in any other civil case: * * *’ Estate of Hale, 170 Cal.App.2d 351, 355, 338 P.2d 997, 999.

Thus, we are bound by the rule that if there is any substantial evidence contradicted or uncontradicted, or any inference which can be reasonably deducted from the facts, our inquiry is at an end. Estate of Briston, 23 Cal.2d 221, 143 P.2d 689. This rule has been specifically applied to the determination as to whether or not property is separate or community. Long v. Long, 88 Cal.App.2d 544, 199 P.2d 47; Estate of Guidotti, 155 Cal.App.2d 812, 318 P.2d 740.

Furthermore, ‘It is not the province of this court to whigh the evidence (Van Buren v. Green, 120 Cal.App. 461, 7 P.2d 1079; Mitchell v. Holmes, 9 Cal.App.2d 461, 50 P.2d 473), and even should we be of the opinion that the finding should have been otherwise, unless there is a total absence of competent evidence to sustain the finding, we cannot reverse the trial court. Thoele v. Thoele, 102 Cal.App. 387, 282 P. 1001; Estate of Seegelken, 103 Cal.App. 691, 284 P. 987; Estate of Filippi, 9 Cal.App.2d 407, 49 P.2d 892; Washko v. Stewart, 20 Cal.App.2d 347, 67 P.2d 144.’ Estate of Sehabiague, 47 Cal.App.2d 793, 800, 119 P.2d 30, 34.

One of the theories upon which Ines based her claim was that there had been a transmutation of the status of the property from separate property to community property. ‘It is elementary that a husband and wife may change the status of their property from separate to community by an executed oral agreement. Kenney v. Kenney, 220 Cal. 134, 136, 30 P.2d 398, and cases cited therein. ‘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.’ Estate of Raphael, 91 Cal.App.2d 931, 939, 206 P.2d 391, 395. ‘It is not essential to show an express oral agreement, but the status of the property may be shown ‘by the very nature of the transaction or appear from the surrounding circumstances.’' Long v. Long, 88 Cal.App.2d 544, 549, 199 P.2d 47, see also Title Insurance etc. Co. v. Ingersoll, 153 Cal. 1, 5, 94 P. 94; Marvin v. Marvin, 46 Cal.App.2d 551, 556, 116 P.2d 151.' Lawatch v. Lawatch, 161 Cal.App.2d 780, 789, 327 P.2d 603, 608.

The evidence in support of the implied finding of the jury that there had been an executed agreement between the spouses which transmuted the separate property of Charles into community property shows that they filed joint income tax returns from 1939 through 1956 (with the exception of 1946 in which year individual returns were filed, although the income was split). Ines' testimony in tnis regard was corroborated by the introduction of copies of the income tax in this regard was corroborated by 63 Cal.App.2d 470, 147 P.2d 110; Estate of Raphael, 91 Cal.App.2d 931, 206 P.id 391; Lawatch v. Lawatch, 161 Cal.App.2d 780, 327 P.2d 603; Estate of Cummins, 130 Cal.App.2d 821, 280 P.2d 128.

There was also testimony that in 1948 Charles sought a partial release of property from the holder of the loan thereon. This property was owned by Charles prior to his marriage to Ines and the loan had been negotiated prior to the marriage. It is significant that the request for the release was signed by Charles and Ines. In addition, during Charles' lifetime he conveyed several parcels of property. In some instances the deed of conveyance began, ‘Charles C. Neilson, dealing with his sole and separate property, and Ines B. Neilson, his wife’; in other cases the deed began, ‘C. C. Neilson, also known as Charles Neilson, and Ines Neilson husband and wife.’ We believe that the jury could find the differences in the granting clause to be significant.

There was additional evidence that escrow instructions concerning the sale of certain separate real property then standing in the name of Charles alone contained the following:

‘You are hereby instructed to send balance check, payable to First Western Bank and Trust Company, Oakdale Branch, for account of C. C. Neilson and Ines Neilson, to said Bank, to be applied on an open note account with said Bank.’

This deed was signed by decedent.

The record further shows that in 1940 Ines and Charles had marital difficulties. As a result, a property settlement agreement was executed in which it was agreed that the property acquired by Charles prior to the execution of the document was his separate property. Ines testified that within an hour and one-half after the agreement was signed the two became reconciled and that prior to the reconciliation Charles told her that they would go back together and that the agreement was void. She also testified that when she first signed a promissory not with Charles, the lending officer at the bank in the presence of Charles told her that the property ‘was our property, and—our community property, and he would like my signature, with my husband's on the note.’ This testimony is also of significance on the issue of transmutation. See for example Lawatch v. Lawatch, 161 Cal.App.2d 780, 790, 327 P.2d 603.

Claimants further contend that the trial court erred in giving certain instructions and refusing to give others. In this regard it is sufficient to note that we have examined the entire charge given to the jury and from such examination conclude that the court fully and fairly and in great detail instructed the jury upon all material issues involved in the case.

Claimants finally contend that the trial court erred when it ordered interest to be paid to Ines under certain circumstances. We find no error in this regard. The order provided that interest be paid only on the proceeds of the sale of any property in which she had a community interest.

Judgment is affirmed.

PEEK, Presiding Justice.

SCHOTTKY, J., concurs.