McGee's Estate, In re

• Citation: 168 Cal.App.2d 670,336 P.2d 622
• Parties: Matter of the ESTATE of Jessie McGEE, Deceased. Anna BRENNAN, Petitioner, Contestant and Appellant, Mary Smith, Patrick McDyre, Sarah Anne McDyre and James McDyre, Mary Agnes McGee, Mary McGee Sprout, Theresa McGee Callahan, Sallie McGee, Ann McGee, Francis McGee, Thomas McGee and Clare McGee, Contestants and Appellants, v. Mary E. SEELIG, Arthur McArdle, Beverly McArdle Garbacki and Rose Ann Butler, Legatees and Respondents, Mary E. Seelig, Administratrix and Respondent. Civ. 22708.
• Decision Date: 13 March 1959
• Court: California Court of Appeals Court of Appeals

Page 622

336 P.2d 622

168 Cal.App.2d 670

Matter of the ESTATE of Jessie McGEE, Deceased.

Anna BRENNAN, Petitioner, Contestant and Appellant, Mary Smith, Patrick McDyre, Sarah Anne McDyre and James McDyre, Mary Agnes McGee, Mary McGee Sprout, Theresa McGee Callahan, Sallie McGee, Ann McGee, Francis McGee, Thomas McGee and Clare McGee, Contestants and Appellants, v. Mary E. SEELIG, Arthur McArdle, Beverly McArdle Garbacki and Rose Ann Butler, Legatees and Respondents, Mary E. Seelig, Administratrix and Respondent.

Civ. 22708.

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

March 13, 1959.

Martin S. Ryan, Guy F. Bush, James H. Lyons and Warren M. Goodwin, Los Angeles, for appellants.

Julius A. Leetham, Los Angeles, for respondents.

LILLIE, Justice.

Jessie McGee died intestate and without children on November 19, 1955. Thereafter, the relatives of her predeceased intestate husband, Denis, filed a petition in the probate proceedings claiming an interest as statutory heirs under Section 228, Probate Code. They contended that all of Jessie's estate had been acquired with community funds during her marriage to Denis and prior to the latter's death; and Jessie having died without issue, one-half of her estate wase distributable to them by force of the statute. The petition was opposed by contestants, all of whom are Jessie's next of kin. The trial court found that at the time of Denis' death there existed no community property to which Jessie succeeded, that all property owned by Jessie upon her death had its origin in, and was, her separate property and vested in the contestants under Section 225 of the Probate Code; and issued its decree accordingly. This appeal therefrom involves solely the sufficiency of the evidence to support the trial court's findings.

The evidence as to the general financial arrangements of Jessie and Denis, including the source of the funds used to purchase the principal asset of the estate, is somewhat meager. As a consequence, the parties rely upon and discuss various inferences and presumptions without the aid of which a finding either way might have been difficult to support.

The following appears from the record: Jessie, a native of England, came to Los Angeles about 1920. She was approximately 30 years of age and unmarried. On March 14, 1922, with savings accumulated from some employment, she acquired an interest, as a single woman, in a three-bedroom house on 91st Street. The total price under the contract of purchase was $3,000, payable $500 down and $35 monthly, commencing April 14, 1922, with interest at 7% annually. The following February (1923) she married Denis. At that time, being neither employed nor possessed of funds or property, he moved into the 91st Street house with Jessie. Following the marriage, Jessie was never again gainfully employed and her income appears to have been derived exclusively from rentals and the sale of various real properties. Denis worked for about a year between 1933 and 1934, and for some ten years during the 1940's. Neither he nor Jessie acquired any property by gift, devise or inheritance.

On March 25, 1925, by quitclaim deed executed by both Denis and Jessie, the interest in the 91st Street property was disposed of and title taken by them by way of grant deed to a ten or twelve-room house on Stanford Avenue, referred to hereinafter as the Warner transaction. In 1938, Jessie and her husband conveyed away the Stanford Avenue house and acquired by deed to 'Jessie McGee, a married woman,' an apartment building situated at 624 Towne Avenue. Subsequently, in 1944, Jessie alone transferred title to the Towne Avenue building and received a deed, in her name only, to a seventeen-room rooming house on West 2nd Street. Shortly thereafter, she disposed of this property and title was taken to the remaining real property in the estate, an apartment house on West 4th Street, in the names of Jessie, Denis and Mary E. Seelig, Jessie's sister and one of the contestants herein, as joint tenants. Later, and prior to Denis' death, Mrs. Seelig conveyed her interest to Denis and Jessie, also as joint tenants. Another property was purchased by Jessie alone in 1950 and sold some two years later for a substantial profit.

Denis died intestate in 1953, predeceasing Jessie by two years. There was no administration of his estate. During his eleven years of employment out of 31 years of marriage, he kept his own separate bank account which was closed in 1950. Upon Jessie's death, her estate had a total inventoried value approaching $118,000, represented mainly by about $12,500 cash on deposit and the 4th Street apartment building appraised at $90,000.

There can be no doubt that the estate thus accumulated came about, as both sides observe, from a process of parlaying profit upon profit from a beginning that was both modest and obscure. The question before us concerns the sufficiency of the evidence to sustain the finding that Jessie's original investment could thus multiply in value over a span of thirty-odd years and still retain its separate property status. Appellants assert that the trial court's determination in this regard was unsupported by fact and unsound in law. They argue that the burden of proof was on the respondents to establish by clear and convincing evidence that the property in Jessie's estate was separate property, citing In re Estate of Jolly, 196 Cal. 547, 238 P. 353; In re Estate of Duncan, 9 Cal.2d 207, 70 P.2d 174; Wilson v. Wilson, 76 Cal.App.2d 119, 172 P.2d 568, and In re Estate of Kane, 80 Cal.App.2d 256, 181 P.2d 751. Those decisions all hold, being aided by the pertinent portion of section 164, Civil Code, declaring certain property acquired during coverture to be community, that property in the possession of one spouse at the close of a long marital relation must be presumed to be community absent the establishment of a better right by the spouse claiming it as separate property.

Appellants are relatives of the predeceased Denis. By Section 228, they became statutory heirs of Jessie, provided they could prove that any part of her estate was in fact the community property of Jessie and Denis. Such proof was a condition precedent to recovery by them. As declared in Re Estate of Rattray, 13 Cal.2d 702, 706, 91 P.2d 1042, 1045: 'Since their right to inherit depended not merely upon the fact of that certain relationship, but upon the fact of such relationship plus the fact that property claimed by them as heirs had formerly been the community property of the decedent and her predeceased spouse, the burden of showing such additional fact rested upon them.' To the same effect are In re Estate of Doran, 138 Cal.App.2d 541, 549, 292 P.2d 655, and In re Estate of Adams, 132 Cal.App.2d 190, 203, 282 P.2d 190. Appellants profess their cognizance of the foregoing rule and further concede that it is primarily a factual question whether the disputable presumption arising from section 164, Civil Code, and accorded additional sanction in Re Estate of Jolly, supra, 196 Cal. 547, 238 P. 353; In re Estate of Duncan, supra, 9 Cal.2d 207, 70 P.2d 174, and Wilson v. Wilson, supra, 76 Cal.App.2d 119, 172 P.2d 568, has been sufficiently overcome. Likewise recognized by appellants is the principle that a finding will not be disturbed if there is substantial evidence or reasonable inference to support it. The instant case, appellants nevertheless argue, presents a situation where 'there was neither substantial evidence nor reasonable inference to support the finding that the property herein involved was the separate property of Jessie' and that 'such finding was in hasty and flagrant disregard of the evidence and of the applicable law as well.'

In support of the foregoing thesis there follows a purely partisan evaluation of the facts, various items of testimony being enumerated which might well have sustained the conclusion contended for. Thus, appellants point out that the only separate property of Jessie directly traceable to her present estate consisted of an equity in the 91st Street property which could not have exceeded $850 (ten monthly payments being included) at the time of her marriage to Denis; that the place produced no income save and except rent of an undetermined amount paid by her brother; that the possession of money or a bank account by Jessie is left to mere surmise and that, although unemployed after her marriage, the decedent apparently did not default under the contract of purchase and thus was able to dispose of her equity at the time of the Warner transaction some three years later and secure in exchange the rooming house on Stanford Avenue. Appellants argue in effect that Denis must then have been working or otherwise contributing to the community's support, failing which they terim.

There is no evidence that Denis was employed at the time in question or at any subsequent time until 1933 when he worked for approximately one year for wages of an undisclosed amount. Opposed to the conclusion which appellants would have us draw is the testimony of Mrs. Seelig, the only witness who knew the parties at the time of their marriage and thereafter. She testified that she did not know 'the exact amount of money' Jessie had when she married Denis; that Jessie was 'the brains of the family,' handled all the business transactions and all the money and that the couple's living habits were moderately frugal. Undoubtedly the trial court, accepting as true the testimony of this witness despite her interest, had in mind the inference, reflected by its finding, that the parties must have been principally maintained out of the income, commencing initially with Jessie's original venture in the Los Angeles real estate market, and that the estate of which she died possessed resulted from the income and profits growing from that first modest investment. Appellants vigorously criticise the trial court's analysis of the Warner...