Updegraph's Estate, In re

• Decision Date: 23 January 1962
• Citation: 18 Cal.Rptr. 591,199 Cal.App.2d 419
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Waldo B. UPDEGRAPH, Deceased, Margaret E. UPDEGRAPH, Petitioner and Appellant, v. Velma P. GERLING, Berdene Wright, and Verna Mae Maib, Respondents. Civ. 6656.

Page 591

18 Cal.Rptr. 591

199 Cal.App.2d 419

In the Matter of the ESTATE of Waldo B. UPDEGRAPH, Deceased,

Margaret E. UPDEGRAPH, Petitioner and Appellant, v. Velma P. GERLING, Berdene Wright, and Verna Mae Maib, Respondents.

Civ. 6656.

District Court of Appeal, Fourth District, California.

Jan. 23, 1962.

Coffee & Wolfe, Madera, for appellant.

John D. Boyle, Madera, and Charles F. Hamlin, Fresno, for respondents.

COUGHLIN, Justice.

The appellant herein, Margaret E. Updegraph, is the widow of Waldo B. Updegraph, deceased; appeals from an order determining heirship, by which the trial court determined that the bulk of the decedent's estate was his separate property and defined the boundaries of the 'home property' in which she had been devised a life estate; and also appeals from an order terminating the payment of a widow's allowance.

With two exceptions, which were covered by stipulation, the trial court found that each of the items in the decedent's estate was his separate property; that three of these items were owned and acquired by the decedent prior to his marriage to appellant; that one of these items consisted of a bank account in which the proceeds from his separate property had been deposited including, among other things, police pension payments the right to which had vested in him prior to said marriage; that the remainder of these items, specifically describing each thereof, constituted the proceeds of property owned by the decedent prior to said marriage, designating the separate property source thereof and tracing the proceeds of such source to the item in question; that any services rendered by the decedent in connection with an orange grove owned by him prior to marriage, a part of which was sold during marriage, and a part of which constituted an asset of his estate, 'were insubstantial and the proceeds therefrom cannot be traced or allocated to any of the assets of the decedent included in the Inventory and Appraisement'; that 'any community earnings or other community property of the decedent and petitioner received or acquired during the period of their marriage was expended prior to the death of the decedent for the support and maintenance of the petitioner and the decedent'; and that by a provision in the will of the decedent wherein he devised to appellant a life estate 'in the home property in which we are living at the time of my death,' the decedent intended to provide appellant with 'the home together with such real property adjacent thereto as is necessary to the quiet and peaceful possession' thereof, specifically describing the same, which was a part of the orange grove in question.

In substance, appellant contends that these findings are not supported by the evidence although, in her closing brief, she claims that she does not seek a reversal upon the ground that the evidence is insufficient to support the judgment but, rather, on the ground that the court erred in applying the law to the evidence presented. An analysis of her several arguments reveals that she relies upon both of these grounds; in some instances the contention that the evidence is insufficient to support certain findings is related to the court's allegedly erroneous application of the law; and in other instances appellant succumbs to the oft-repeated practice of many appellants who argue the weight of the evidence under a contention urging its insufficiency.

In the latter category is appellant's contention, based on the rule stated in Tomaier v. Tomaier, 23 Cal.2d 754, 757, 758, 146 P.2d 905, that she and her husband, by oral agreement, converted the orange grove from separate to community property status. It is doubtful that there is any evidence in support of this contention; there is no direct evidence on the subject; the inferences relied upon are weak; and under any circumstances no more than a question of fact is presented, which the trial court determined adversely to her contention.

Appellant and decedent were married a little over ten years prior to the latter's death. At the time of their marriage each of them owned property. The evidence indicates that the parties were conscious of their separate interests; discussed the matter; and justifies the conclusion that they made an effort to maintain the separate status thereof.

After marriage, the husband supervised the operation of his orange grove, but the bulk of the work actually done thereon was performed by others, and the evidence not only fully supports the finding that the services rendered by him in connection therewith were 'insubstantial,' but fails to provide the means whereby they could be evaluated. It appears that the orange grove did not net a profit.

One of the assets of the estate was a bank account which before marriage stood in the name of decedent; after marriage was converted to the joint names of decedent and appellant, at which time both separate and community funds were placed therein; and later was placed in the name of decedent alone. The court found that the latter event occurred with full knowledge of appellant and without any objection from her. Appellant contends that this finding is without evidentiary support, but our review of the record discloses the contrary.

Appellant places great reliance upon two presumptions, i. e., (1) that property acquired by a husband during marriage, even though placed in his name alone, is presumed to be community property (see Estate of Rolls, 193 Cal. 594, 597, 226 P. 608, and Socol v. King, 36 Cal.2d 342, 223 P.2d 627), and (2) that where separate property which is commingled with community property cannot be traced, the whole will be presumed to be community property. (See Mueller v. Mueller, 144 Cal.App.2d 245, 250, 301 P.2d 90.) She mistakenly states the latter presumption; contends that the mere commingling of separate with community property changes the character of the former; and argues that any separate property placed in a community bank account forthwith becomes community funds. This is an incorrect concept. (Estate of McGee, 168 Cal.App.2d 670, 677, 336 P.2d 622.) The presumptions relied upon are not conclusive; may be rebutted by circumstantial as well as direct evidence (Tassi v. Tassi, 160 Cal.App.2d 680, 688, 325 P.2d 872); and a finding contrary thereto supported by substantial evidence will not be disturbed on appeal. (Estate of McGee, supra, 168 Cal.App.2d 670, 677, 336 P.2d 622).

During the course of their marriage the decedent deposited his earnings in the bank account in question along with proceeds from transactions involving his separate property.

'If the exact amount of money allocable to separate property and the exact amount of money allocable to community property deposited in a bank account can be ascertained, the money allocable to separate property is not so commingled that all of the funds become community property.' (Thomasset v. Thomasset, 122 Cal.App.2d 116, 124, 264 P.2d 626, 631; Tassi v. Tassi, supra, 160 Cal.App.2d 680, 689, 325 P.2d 872; Estate of McGee, supra, 168 Cal.App.2d 670, 677, 336...