Estate of Westerman, In re

• Decision Date: 26 February 1968
• Docket Number: S.F. 22359
• Citation: 68 Cal.2d 267,66 Cal.Rptr. 29,437 P.2d 517
• Court: California Supreme Court
• Parties: , 437 P.2d 517 In re ESTATE of William Harry WESTERMAN, Sr., Deceased. Frank L. BAMBRIDGE, Plaintiff and Appellant, v. Albert WESTERMAN et al., Defendants and Respondents.

Page 29

66 Cal.Rptr. 29

68 Cal.2d 267, 437 P.2d 517

In re ESTATE of William Harry WESTERMAN, Sr., Deceased.

Frank L. BAMBRIDGE, Plaintiff and Appellant, v. Albert WESTERMAN et al., Defendants and Respondents.

S.F. 22359.

Supreme Court of California,

In Bank.

Feb. 26, 1968.

Rehearing Denied March 27, 1968.

Guidotti & Mellana and Aldo P. Guidotti, Oakland, for plaintiff and appellant.

John J. Franzoia, Oakland, for defendants and respondents.

SULLIVAN, Justice.

Appellant Frank L. Bambridge appeals from a judgment (Prob.Code, § 1240) ¹ entered in proceedings for the determination of heirship (§§ 1080--1082) decreeing that appellant is entitled to no part of the estate of William Harry Westerman, Sr., deceased, under his claim thereto based on section 229 as the son of decedent's previously deceased spouse.

The facts are not in dispute. In 1903 decedent married Jane Dwyer Bambridge (Jane), the mother of appellant by a former marriage. Two children were born issue of the marriage of decedent and Jane: William Harry Westerman, Jr., who died unmarried and without issue in 1963, predeceasing decedent, and a daughter who died in infancy. In 1911 Jane died intestate, survived by decedent, Westerman, Jr., and appellant.

At the time of her death Jane owned as her separate property three parcels of real property located in Alameda County, designated Parcels 1, 2 and 3 by the trial court. By the decree of distribution entered in the estate of Jane Westerman a two-thirds interest in Parcels 1, 2 and 3 was distributed to decedent and the remaining one-third, to Westerman, Jr. Decedent's two-thirds interest consisted of one-third distributable to him under the laws of succession and one-third similarly distributable to appellant but conveyed by appellant to decedent before such distribution.

In 1920 decedent married Margaret Sexton (Margaret), who in 1923 acquired as her separate property a parcel of real property located in Alameda County, designated Parcel 4 by the trial court.

On February 28, 1929, Margaret, joined by decedent, conveyed Parcel 4 by grant deed to Westerman, Jr. On that day, decedent joined by Margaret conveyed by grant deed to Westerman, Jr., all of decedent's interest in Parcels 1, 2 and 3. As previously stated, Westerman, Jr., already owned a one-third interest in Parcels 1, 2 and 3. Thereafter and on the same day Westerman, Jr., conveyed by a single grant deed to decedent and Margaret as joint tenants Parcels 1, 2, 3 and 4. By so doing, he divested himself of the one-third interest distributed to him from the estate of Jane, decedent's first wife. All of the deeds were recorded on March 4, 1929.

In 1950 Margaret, decedent's second wife, died. In 1957 decedent conveyed Parcels 1, 2, 3 and 4 to himself and Westerman, Jr., as joint tenants. In 1963 Westerman, Jr., died. In 1964 decedent died, leaving neither spouse nor issue. During the ensuing administration of decedent's estate appellant asserted that under the provisions of section 229 he was entitled to a one-third interest in Parcels 1, 2 and 3 owned by decedent as his separate property at death. This claim was grounded on the assertion that such property had been the separate property of Jane, his mother and decedent's first wife, and had come to decedent from such previously deceased spouse by descent. ²

The trial court concluded so far as is here material that decedent acquired a one-third interest in Parcels 1, 2 and 3 from appellant for valuable consideration; that decedent acquired a one-third interest in Parcels, 1, 2 and 3 from Westerman, Jr., for valuable consideration; that decedent 'originally acquired a one-third (1/3) interest in Parcels 1, 2 and 3 from his predeceased wife, Jane Westerman, but that as a result of subsequent transactions and conveyances from third parties referred to in the Findings of Fact, which conveyances were for valuable consideration, said decedent at the time of his death owned said interest in Parcels 1, 2 and 3 by virtue of an intervening source and acquired a 'new title' to the same'; and that appellant was not entitled to any portion of decedent's estate by virtue of section 229 'or for any other reason.' ³ However the trial court failed to specify which particular subsequent transaction or conveyance created a new title in decedent or whether each transaction and conveyance was in itself sufficient to render section 229 inoperative. Indeed, the findings of fact and conclusions of law are susceptible of the interpretation that the court's determination of new title rested on two bases--the conveyances leading to the creation of the first joint tenancy in 1929 and the conveyance effectuating the second joint tenancy in 1957. Judgment was entered accordingly. This appeal followed.

Section 229 provides: '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, or became vested in the decedent on the death of such spouse by right to survivorship in a homestead or in a joint tenancy between such spouse and the decedent, such property goes in equal shares to the children of the deceased spouse and to their descendants by right of representation, and if none, then' to other specified relatives of the deceased spouse.

It is now settled 'that the underlying principle of sections 228 and 229 is that the origin or source of acquisition of the property should and does control its distribution.' (Estate of Allie (1958) 50 Cal.2d 794, 797--798, 329 P.2d 903, 905; see Estate of Reizian (1951) 36 Cal.2d 746, 749, 227 P.2d 249; Estate of Abdale (1946) 28 Cal.2d 587, 590--591, 170 P.2d 918; Estate of Rattray (1939) 13 Cal.2d 702, 713--714, 91 P.2d 1042; Estate of Putnam (1933) 219 Cal. 608, 611, 28 P.2d 27.) Referring to these sections in Rattray, we said: 'It is apparent from the history of these code provisions and the various changes therein that ever since the amendment in 1905, wherein the origin or source of the property was first set up as one of the determining factors in the descent and distribution of the estate of a decedent dying intestate without issue, that there has been a consistent attempt to work out a reasonable, consistent scheme of distribution wherein upon the death of a decedent intestate without issue, instead of the whole property going to the relatives of the last surviving spouse, the property should go back to the relatives of the spouse from which title was derived. * * * It will be noted that the provisions relative to the separate property of the predeceased spouse and relative to the community property of the spouses * * * were intended to furnish one general plan of distribution based upon the same underlying fundamental principle, that the origin or source of the property should determine its distribution.' (Pp. 713--714, 91 P.2d p. 1048.) We have observed that the foregoing 'principle has been uniformly recognized in the construction of these provisions.' (Estate of Abdale, supra, at p. 590, 170 P.2d at p. 921, collecting cases.)

But although the 'reason and purpose of section 229 of the Probate Code is, in the absence of testamentary disposition, to turn the property back to the family from which it came * * * the section never sought to limit the right of the (surviving spouse) to dispose of it by will or conveyance.' (Estate of Putnam, supra, 219 Cal. 608, 611, 28 P.2d 27--28; see also Estate of Brady (1915) 171 Cal. 1, 6, 151 P. 275; Estate of Flood (1942) 55 Cal.App.2d 410, 412, 130 P.2d 811.) Possessing this right fully, the surviving spouse may convey the property to a third person and thereby preclude any operation of section 229 upon that property, whether the conveyance is for consideration or by gift. (See Estate of Putnam, supra; Estate of Harris (1937) 9 Cal.2d 649, 661, 662, 72 P.2d 873; Estate of Flood, supra.) Once such a conveyance has 'effectively removed the property from the status it had formerly held' a subsequent reacquisition of the title by means of a new conveyance does not restore the property to its former character or status. (Estate of Putnam, supra, 219 Cal. 608, 611, 28 P.2d 27, 28; Estate of Flood, supra.)

The foregoing is illustrated by Estate of Putnam, supra, 219 Cal. 608, 28 P.2d 27, wherein the rule of 'new title' was first enunciated. There, the decedent sold certain property which she had inherited from her first husband and with the proceeds purchased stock, causing the certificates to be issued in the names of herself and her second husband as joint tenants. Two years later, she and her second husband endorsed the certificates and arranged for new certificates to be issued in her name alone. Upon her death intestate, distribution of the stock to her second husband ⁴ and other heirs of hers instead of to the daughter of her predeceased first husband was upheld on the ground that she had acquired a 'new title.'

In Putnam, this court said: '(T)hat property so inherited does not lose its character or status as such by a mere change in form or identity, such, for example, as the exchange of inherited parcel A for parcel B. The latter property acquires the status of that formerly possessed by parcel A. (Citation.) Thus it follows that, if when the stock was originally purchased and the joint tenancy created, J. F. Putnam conveyed to his wife property in exchange for his joint tenancy interest, the property so conveyed by him would be subject to distribution under section 229. Also, although the creation of the joint tenancy Were without valuable consideration moving to Elizabeth D. Putnam, yet she had Effectively removed the property from the status it had formerly held. (Citation.) It is obvious that had the joint tenancy continued until her death, J. F. Putnam would, by reason of his right of survivorship, have owned the property outright. That which is the subject...