Clifford v. Lake

• Citation: 190 P. 714,33 Idaho 77
• Parties: JOHN P. CLIFFORD, THOMAS J. WILLIAMS and FANNIE PASKINS, Executors of the Estate of CHARLES WILLIAMS, Deceased, Appellants, v. C. W. LAKE, Administrator of the Estate of ELIZA B. WILLIAMS, Deceased, Respondent
• Decision Date: 14 May 1920
• Court: Idaho Supreme Court

190 P. 714

33 Idaho 77

JOHN P. CLIFFORD, THOMAS J. WILLIAMS and FANNIE PASKINS, Executors of the Estate of CHARLES WILLIAMS, Deceased, Appellants, v. C. W. LAKE, Administrator of the Estate of ELIZA B. WILLIAMS, Deceased, Respondent

Supreme Court of Idaho

May 14, 1920

HUSBAND AND WIFE-COMMUNITY PROPERTY-EVIDENCE-CONFLICT OF EVIDENCE.

1. All property acquired by either spouse during coverture is presumed to be community property, and the burden of proof rests upon the party who asserts it is separate property to show such fact by a preponderance of evidence.

2. The separate property of either spouse may undergo mutations and changes during the marriage relation and still retain its separate character, yet the proof to trace and identify it in its changed condition must be clear and satisfactory.

3. An appellate court will not disturb the judgment of a trial court because of conflict in the evidence, where there is sufficient proof, if uncontradicted, to sustain it.

APPEAL from the District Court of the Seventh Judicial District, for Gem County. Hon. Ed. L. Bryan, Judge.

From a judgment approving and confirming an order of the probate court, decreeing the assets of the estate of Charles Williams, deceased, to be community property, the executors of said Williams appeal. Affirmed.

Judgment affirmed, with costs to respondent.

Finley Monroe and Barber & Davison, for Appellants.

Where at the time of the death of a party to a community, there is less estate on hand than there was at the time of the marriage, the estate will be separate in its character, as was the original capital. (Walsh v. Walsh, 84 Cal 101, 23 P. 1099; Lewis v. Johns, 24 Cal. 98, 85 Am. Dec. 49.)

It is immaterial whether there was any intermingling of community and separate funds, because the commingling of funds does not charge all property with being community in character. ( Carle v. Heller, 18 Cal.App. 577, 123 P. 815; In re Pepper's Estate, 158 Cal. 619, 112 P. 62, 31 L R. A., N. S., 1092; In re Bollinger's Estate, 170 Cal. 380, 149 P. 995, 996.)

There is a sufficient tracing of the original capital to keep it impressed with the character of separate property. (Walsh v. Walsh, supra.)

It is in evidence that the house was rebuilt on the old place subsequent to the marriage, but that did not change the character of the estate. (In re Deschamps' Estate, 77 Wash. 514, 137 P. 1009; Pereira v. Pereira, 156 Cal. 1, 134 Am. St. 107, 103 P. 488, 23 L. R. A., N. S., 880.)

All of the property involved was acquired with the proceeds of separate property, and is separate property. (Douglas v. Douglas, 22 Idaho 336, 125 P. 796.)

Thos. E. Buckner and W. C. Bicknell, for Respondent.

The property in question having been acquired during coverture, long after Charles Williams and his wife, Eliza B. Williams, were married, it is presumed to be community property. ( Stowell v. Tucker, 7 Idaho 312, 62 P. 1033; 26 Cent. Dig., Husband and Wife, sec. 913.) Such presumption can be repelled only by clear and decisive proof to the contrary. ( Smith v. Smith, 12 Cal. 216, 73 Am. Dec. 533; Meyer v. Kinzer, 12 Cal. 247, 73 Am. Dec. 538; Schmeltz v. Garey, 49 Tex. 49; Pool v. Clifford, 78 Cal. 371, 20 P. 857.)

"The increase of livestock during the existence of marriage relation is community property, though it is the increase of stock which is the separate property of the husband or wife." (Wolford v. Melton, 26 Tex. Civ. 486, 63 S.W. 543; Bonner v. Gill, 5 La. Ann. 629; Howard v. York, 20 Tex. 670; Bateman v. Bateman, 25 Tex. 270; Barr v. Simpson, 54 Tex. Civ. 105, 117 S.W. 1041; Moor v. Moor, 24 Tex. Civ. 150, 57 S.W. 992; Thorn v. Anderson, 7 Idaho 421, 63 P. 592.)

Profits arising from investments of separate property are community estate, and in case the two are mingled so that they cannot be separated, the whole will be treated as community estate. (Smith v. Bailey, 66 Tex. 553, 1 S.W. 627; Clift v. Clift, 72 Tex. 144, 10 S.W. 338.)

Whether or not the evidence is sufficient to rebut the presumption that the property is community property is for the trial court. (In re Pepper's Estate, 158 Cal. 619, 112 P. 62, 31 L. R. A., N. S., 1092; Couts v. Winston, 153 Cal. 686, 96 P. 357.)

REDDOCH, District Judge. Morgan, C. J., and Budge, J., concur.

OPINION

REDDOCH, District Judge.

--The record shows that Charles Williams and Eliza B. Williams intermarried in Idaho in 1887. At the time of the marriage Charles Williams owned one hundred and twenty acres of land near Treasureton, Idaho, a herd of cattle and about fifteen horses. The testimony on behalf of appellants shows that the herd of cattle consisted of about one hundred head, while that on behalf of respondent shows that it did not exceed fifty in number. There is no showing as to the value of the land or cattle at the time of the marriage. Soon after the marriage Charles Williams homesteaded one hundred and sixty acres, adjoining the one hundred and twenty acres owned by him at the time of the marriage; he afterward traded thirty acres of the original one hundred and twenty acre tract and made improvements on the remaining ninety acres by remodeling the dwelling-house, building a granary and rebuilding the stables thereon; eighty acres of the homestead tract was deeded to Thomas J. Williams, a son of Charles Williams by a former marriage, upon the understanding and agreement that the son was to remain at home and assist his father upon the farm from the time he was nineteen years of age until he was twenty-one; after this transfer the real estate of Williams consisted of the ninety acres remaining of the original tract and eighty acres of the homestead tract upon which he resided with his wife and used as a farm; about seventy acres of the original tract was in cultivation, on which crops of hay and grain were raised, which was used to feed the stock, and any surplus remaining sold from time to time; shortly after the marriage Williams began selling off the original herd of cattle, together with the increase, selling no considerable number at any one time, and after about five years he accumulated $ 1,000, which was deposited in a bank at Logan, Utah; some of this deposit was withdrawn at times, being used and loaned, and other deposits made; about the year 1903, or 1904, Williams and wife sold the one hundred and seventy acre farm for the sum of $ 2,500, which amount, together with $ 1,000 in the bank at Logan, Utah, and a small amount of personal property, constituted all their assets. On or about the dates last aforesaid they purchased fifteen acres of land near Emmett, Gem county, Idaho, the deed to which was taken in the name of Charles Williams, and erected a dwelling thereon, where they afterward resided until about the time of their death. The purchase price of the real estate, and the cost of constructing the buildings...