King v. King

• Decision Date: 05 November 1951
• Citation: 107 Cal.App.2d 257,236 P.2d 912
• Court: California Court of Appeals Court of Appeals
• Parties: KING v. KING. Civ. 18369.

Page 912

236 P.2d 912

107 Cal.App.2d 257

KING v. KING.

Civ. 18369.

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

Nov. 5, 1951.

Lester E. Hardy, Altadena, for appellant.

S. Ward Sullivan, Los Angeles (Frank Alef, Los Angeles, of counsel), for respondent.

DRAPEAU, Justice.

Preshaw Duke King and Grace Haynes King, husband and wife, acquired a home as joint tenants using community funds for its payment. About the same time, husband borrowed $5,000 on his personal note from his sister, Aura King. Then husband died and his wife qualified as executrix of his estate, the assets of which were less than the amount of the note. Aura King presented her claim in the estate and it was disallowed by executrix.

By this action said sister sought a judgment against the estate for the amount of the note, plus interest and attorney's fees; and also 'that the property held in joint tenancy by Preshaw Duke King and Grace Haynes King * * * be declared community property and the executrix be required to inventory same.'

Plaintiff Aura King testified that she lent her brother the $5,000 represented by the promissory note here sued upon because he had bought a house and needed it.

Defendant testified that the price of the joint tenancy property acquired on August 30, 1946, was $27,000 of which $21,000 was paid in cash taken from a joint safe deposit box; that this money was earned by her husband who had 'worked for it over the years. That was his way of saving money for our home.' The $6,000.00 balance of the purchase price was borrowed from a bank and secured by a trust deed.

The complaint alleged on information and belief that this $6,000 loan was paid off on December 5, 1946, and that the $5,000 borrowed from plaintiff sister was used for that purpose. Further 'that the payment of this money to extinguish a lien on the jointly owned property above described was a planned method of hindering plaintiff in the collection of the amount represented by said note. That said act was fraudulent in intent and that Grace Haynes King was an informed party to said plan.'

It was found that except for $4,500, no other funds of any kind or nature were contributed by defendant wife to either the joint account of herself and husband or the purchase price of the joint tenancy property, and that deposits in the said account and the money paid for the home were entirely community funds.

It was also found that the final payment on the joint tenancy property, to-wit: $5,950.83 made on December 5, 1946, 'was made from community funds on deposit in a joint bank account in the name of Preshaw Duke King and Grace Haynes King.'

Judgment was for plaintiff against the estate for the full amount prayed for. However, the trial court ruled that the home, which was held in joint tenancy, was not part of the estate, and that plaintiff was not entitled to a judgment against Grace Haynes King personally.

This appeal is taken by plaintiff from that portion of the judgment which denied the relief she sought from the joint tenancy property.

The sole question presented, says the appellant, is whether under the facts the trial court should have found that the home place was community property, and subject to payment of the note sued upon.

As said by this court in Re Estate of Zaring, 93 Cal.App.2d 577, 579, 209 P.2d 642, 644: 'Survivorship is one of the incidents of joint tenancy, and unless the estate is terminated before the death of a joint tenant, the executor of the decedent has no interest in the property. Dando v. Dando, 37 Cal.App.2d 371, 99 P.2d 561.' In other words, upon the death of the joint tenant, the survivor 'becomes the sole owner of the...