IN RE: PERKINS' ESTATE. (1941)

The probate court overruled the respondent's objections to a petition for distribution of the estate of Ella Wallace Perkins and entered judgment that he is not entitled to any part of her estate. Thereafter, it granted a motion for a new trial in part and entered another judgment which ordered distribution of all of the decedent's estate, except $4,313, to him. This judgment followed the terms of ‘modified findings of fact’ and ‘modified conclusions of law.’ The case is here upon a notice of appeal by ‘Lillian Middlebrook, administratrix of the estate of’ Mrs. Perkins, reciting that she appeals from the modified judgment, except that portion of it which orders distribution of the $4,313 to herself and her two sisters, and ‘from that certain motion for new trial granted in said estate.’ From this notice it appears that the appeal is directed to a minute order made by the probate court following the hearing of the respondent's motion therefor.

The question for decision concerns the character of the property left by Mrs. Perkins. The respondent claims all of her estate as separate property of her deceased husband which she acquired by gift from him. By its second judgment the probate court sustained the respondent's contention as to all of her property except a portion valued at $4,313, which had come to her by bequest.

Ella Wallace Perkins died intestate in this state leaving three sisters, Lillian Middlebrook, Rose Dunlap Franklin, and Jessie W. Chapman, as her sole survivors. Forty-two years before she married Wallace T. Perkins, and prior to his death in 1931, they resided in the state of New York. There were no children of the marriage; Clifford L. Perkins, the respondent, is the son of Wallace T. Perkins by a prior marriage.

Wallace T. Perkins was successful in his business and bought insurance upon his life for $90,000. The policies representing this insurance named his wife as the beneficiary of $30,000, his son as the beneficiary of the same amount and a friend as the beneficiary of the remainder. Of this insurance, $10,000 was purchased under a group policy issued to the bank of which Mr. Perkins was an officer. The premiums on the group policy were paid by the bank; all of the other premiums were paid by Mr. Perkins from his income.

Shortly after the death of her husband, Mrs. Perkins came to California bringing with her about $19,000 in cash and some stock and bonds. There is evidence to the effect that while a resident of Los Angeles she made a number of investments and also received legacies amounting to $4,313.

Following the death of Mrs. Perkins, Lillian Middlebrook was named as administratrix of her estate. In due time the administratrix filed her first and final account, together with a petition for distribution of the estate to herself and her two sisters. The respondent filed written objections to the petition for distribution, claiming the entire estate under section 229 of the Probate Code as the separate property of Mrs. Perkins' predeceased spouse. Upon a hearing the probate court ruled against the respondent and decreed distribution to the three sisters of the decedent. No appeal was taken from this decree and the administratrix distributed the estate in accordance with its terms and procured her discharge.

Within the statutory time therefor, the respondent moved the court to grant a new trial. This motion was granted in part, the court filing ‘modified findings of fact and conclusions of law’ reciting that the entire estate of Ella W. Perkins, except the sum of $4,313, was her separate property acquired by gift from Wallace T. Perkins. As a conclusion of law the court found that the respondent is entitled to all of the estate except that amount. A ‘modified judgment’ in accordance with this decision was thereupon entered.

The appellant presents several points as grounds for reversal of the order granting a new trial and of the judgment. First, she contends, since the nature of the proceedings before the probate court was to determine the heirship of the respondent, the order should have been limited to that issue. A second point is that the money received by Ella W. Perkins as the proceeds of insurance upon the life of her husband was not a gift to her within the meaning of section 229 of the Probate Code. In this connection she asserts that the removal of Mrs. Perkins to California did not change the legal character of the money which was paid to her in New York.

The respondent takes the position that an administratrix is not a party aggrieved by the judgment, hence the present appeal should be dismissed. Upon the merits, he argues that the court acted entirely within its powers in granting the motion for a new trial and modifying its findings and judgment to accord with the evidence and the law governing the rights of the parties.

Considering first the respondent's contention that the appeal should be dismissed, the record shows that it was taken by ‘Lillian Middlebrook, administratrix of the estate of’ Mrs. Perkins. Although it is a fundamental principle that an administratrix may not appeal from a decree of distribution, this court, looking to the interests of the parties to litigation as of primary importance, has very liberally construed such a notice as one in which the designation of administratrix may be considered as descriptio personae. Estate of Strong, 10 Cal.2d 389, 74 P.2d 231. Notwithstanding the fact that in other papers presented by the appellant in connection with the present appeal it is stated that she is appealing ‘as said administratrix,’ the rule of the Strong case will be applied in the interests of justice.

Turning to the points urged by the appellant, the statement that the purpose of the proceeding in the probate court was to determine the heirship of the respondent is incorrect. In his objections to the petition for distribution, he alleged the facts regarding his parentage and ‘that the entire estate of * * * Ella Wallace Perkins was the separate property of * * * Wallace T. Perkins * * * and came to * * * [her] by gift, descent or bequest from * * * [him].’ Answering these objections the administratrix admitted the relationship of the respondent, but she specifically denied that the property owned by Mrs. Perkins at the time of her death was the separate property of Mr. Perkins, or that it came to his wife by gift, descent or bequest. The issues, therefore, presented for determination by these allegations concern only the legal character of the property owned by Mrs. Perkins at the time of her death. Stated more specifically, the probate court was called upon to determine, and the same question is the principal one for decision upon the appeal, whether either the securities purchased by Mr. Perkins or the proceeds of the insurance upon his life were his separate property and came to his wife by gift from him. The respondent is entitled to any property of Mrs. Perkins which falls within this classification because of the provisions of section 229 of the Probate Code, which reads: ‘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 * * * such property goes in equal shares to the children of the deceased spouse * * *.’

The testimony concerning the source of the funds with which Mr. Perkins purchased securities and life insurance is rather complete and uncontradicted. Mr. and Mrs. Perkins married in 1897. He was then in the banking business in Denver. In 1904, he and his wife removed to New York, where he became an executive officer of one of the large banks there. The record includes no evidence of any property he had either when he married Ella W. Perkins or when they became residents of New York. But the testimony shows that after he went there as a successful banker he bought life insurance and also stock in a number of corporations. The certificates representing this stock were either issued in his name or in the name of his wife. As his secretary expressed it: ‘When Mr. Perkins acquired his own holdings, he would either purchase some in smaller amounts for Ella, or he would ask for a transfer or division of the amount that he bought, some in his name and a smaller amount in hers.’

It appears that during this time the salary of Mr. Perkins was $40,000 per year and that his income from dividends and investments amounted to as much more. His salary checks and the checks representing his income from other sources were deposited in a bank account from which he paid both his living expenses and for the securities which he bought from time to time. From this account also he paid the premiums upon his insurance policies. The question then narrows itself down to the legal character of this money, for unless it was his separate property, the respondent is not entitled to succeed to any portion of the estate of Mrs. Perkins.

Almost the identical factual situation was recently before this court in Estate of Allshouse, 13 Cal.2d 691, 91 P.2d 887, 891, where it was held that, for purposes of succession, the origin of an estate may be traced into a foreign jurisdiction and the California classification of property applied to the property acquired there. But an important qualification is that the nature of the foreign ownership must be substantially the same as that which the property would have if acquired in this state. Also, the court pointed out that such a comparison may not be made if the California classification would vary or defeat rights in property which had not come into this state.

That case concerned an estate whose source was the earnings of a husband in Missouri, which by the laws of that state belonged to him in sole ownership, subject to a dower right in the wife. Such ownership, it was declared, ‘differs in substantial aspects from that of either community or separate property as those terms are employed in a community property jurisdiction. It differs from community property in that it vests a greater right in the husband. It differs from the husband's separate property in that it includes the wife's right of dower, which although inchoate is exceedingly valuable. Chrisman v. Linderman, 202 Mo. 605, 100 S.W. 1090, 10 L.R.A.,N.S., 1205, 119 Am.St.Rep. 822. It therefore cannot properly be reclassified as either by the new jurisdiction while its situs and the domicile of its owner remain in the old.’

The State of New York, by its Constitution, has adopted the common law, subject to such alterations as the legislature shall make concerning it. Sec. 14, art. I, Const. of New York. Aside from the right of dower, which was inchoate until the husband's death, the common law gave the wife no present interest in the husband's property Vernier, American Family Laws, Vol. 3, p. 202. In accordance with the constitutional provision, the legislature has given a wife certain rights to succeed to her husband's real and personal property in lieu of her dower right. Under these circumstances, to reclassify the property which Mr. Perkins owned in New York and which Mrs. Perkins acquired while she was a resident there ‘would be for this state to reach beyond its borders and impose its substantially different classification upon both a former owner and a former ownership which obtained in a foreign jurisdiction. This may not be done.’ Estate of Allshouse, supra.

As the source of the estate now in controversy was not separate property of Mr. Perkins, the respondent may not succeed to any part of it. The judgment is, therefore, reversed, with directions to the probate court to enter judgment in favor of Lillian Middlebrook, Rose Dunlap Franklin and Jessie W. Chapman.

EDMONDS, Justice.

GIBSON, C. J., and SHENK, CURTIS, and TRAYNOR, JJ., concurred.