Opinion
As Corrected on Denial of Rehearing July 23, 1940
Hearing Granted Aug. 26, 1940
Appeal from Superior Court, Los Angeles County; Charles S. Burnell, Judge.
Proceeding in the matter of the estate of Jean Watkins, deceased, wherein William Elmer Watkins and others filed their petition to share in the distribution of the residuary estate of deceased, and Laurence Keele filed his statement of claim with his petition claiming that he was entitled to the residuary estate of deceased. From the judgment, William Elmer Watkins and others appeal.
Reversed, with direction. [Copyrighted Material Omitted] COUNSEL
Simpson & Simpson, of Los Angeles, for appellants.
Noel Edwards and Louis Thomsen, both of Los Angeles, for respondent.
Faries & McDowell, of Los Angeles, amici curiae.
OPINION
MOORE, Presiding Justice.
This is an appeal from the judgment in a proceeding to determine heirship. Appellants are the collateral relations of the decedent, Jean Watkins. The respondent, Laurence Keele, filed his statement of claim with his petition in the probate proceedings of said decedent claiming that by reason of his being the grand-nephew and sole heir of decedent he was entitled to the residuary estate of decedent. In the same proceeding appellants filed their petitions alleging that the said residuary estate consisted either of community property of decedent and her deceased spouse or, in the alternative, that if it was not such community property it had become the separate property of decedent by reason of an inter vivos gift of her said deceased husband out of the community estate, and that in either event they were entitled to share equally with the heirs of Jean Watkins in the distribution of said residuum. The trial court adjudged the respondent to be the sole heir of decedent and as such entitled to the residue of all of decedent’s estate, after the payment of specified legacies.
Henry and Jean Watkins, having married in 1899, continued as husband and wife until Henry’s death on December 30, 1926. Just six days prior to his demise Henry and Jean executed their joint and mutual wills wherein they declared that "all property here disposed of was accumulated and acquired during our marriage and is community property". On November 20, 1920, Henry and Jean had jointly rented a safe deposit box. Subsequent to his death it was found to contain securities of the value of $129,262. Also, at the same time there was on deposit in the commercial department of the Merchants National Bank of Los Angeles a joint tenancy account in the amount of $16,087.40, which had been created by virtue of an agreement signed by decedent and her said husband May 20, 1915. Prior to Henry’s death he and Jean had acquired various parcels of real property which at the death of Henry were held in joint tenancy by the two. But when his will was probated all of the estate was distributed to Jean Watkins in accordance with the terms of his said will.
On November 2, 1936, Jean also departed this life, leaving a will by the terms of which she made specific legacies and bequeathed the residue of her estate to her business manager and her attorney in equal shares. When her said will was offered for probate various contests were filed. The controversies resulted in a settlement in which said residuary legatees and devisees assigned to the heirs of Henry and Jean Watkins, as their interests might appear, all right, title and interest in said residual estate except certain specified items. To establish their right to share in the interest thus assigned appellants seek a decree awarding to them out of said residuum the share which had belonged to Henry Watkins as community partner of Jean. 1. It is contended by appellants that the evidence is insufficient to support the finding that the securities found in the safe deposit box at the time of Henry’s death were held in joint tenancy by Henry and Jean Watkins. To answer this contention we now refer to the agreement of said decedents under which the deposit box was rented. It reads as follows: "The undersigned acknowledge they have this day rented from the Merchants National Bank of Los Angeles *** Safe Deposit Box No. 745. Said box is rented and held during the rental period by said undersigned in joint ownership, with right of survivorship, to be open and accessible to the joint or several order of said undersigned during their lives and upon the death of either to the order of the survivor of them subject to State and Federal laws relating thereto. Upon the death of either, the contents of said rental box shall be, insofar as the Merchants National Bank of Los Angeles is concerned, the absolute and exclusive property of the survivor by right of survivorship, and such survivor may have access to said box and remove therefrom all the contents thereof subject to State and Federal laws relating thereto. *** All property of whatever kind or nature deposited or hereinafter deposited in said box shall be subject to the terms and conditions herein expressed. ***" This writing discloses a clear intention on the part of the husband and wife that the contents of said safe deposit box at the time of the writing or at any subsequent time should be jointly owned by them during their lifetime and that upon the death of one of them all of the contents of said box should be owned exclusively by the survivor. By said writing a valid joint tenancy was created. Young v. Young, 126 Cal.App. 306, 14 P.2d 580; Hurley v. Hibernia Savings, etc., Soc., 126 Cal.App. 314, 14 P.2d 574. Appellants contend that by the phrase which appears in the agreement, towit, "insofar as the Merchants National Bank of Los Angeles is concerned", it was intended to restrict the application of the agreement and the rental of the safe deposit box to their relation to said bank. Such interpretation would be a narrow construction of the agreement. Said phrase did not in the slightest detract from the validity of the agreement as between its authors, nor does it defeat their avowed purpose to create a joint tenancy account. The inclusion by them of an express direction to the bank did not alter the binding force of the agreement upon the parties themselves. They could not declare themselves joint tenants and require the bank to permit the survivor to remove the contents of the box and at the same time have reserved to each of them some interest in or title to said contents not disclosed. When they both declared that the survivor of them should have "the absolute and exclusive" ownership of said contents their joint tenancy was established. The cases relied upon by appellants, such as Security-First National Bank v. Stack, 32 Cal.App.2d 586, 90 P.2d 337, are not in point because they involved the renting of deposit boxes where the agreements are silent as to the ownership of the contents.
2. Appellants contend that the court erred in finding that the money on deposit in their joint bank account was owned in joint tenancy. The error of this contention is likewise susceptible of demonstration. The agreement executed by the parties in opening said joint bank account reads as follows: "Know all men by These Presents: That we, the undersigned, do hereby open a deposit and checking account with the National Bank of California, at Los Angeles, California, in the name of H.G. Watkins and Jean Watkins. All deposits made with said bank by us, or either of us, in the names aforesaid, and the increase thereof, are hereby made deliverable or payable to either of us, or to the survivor, or survivors of us, on checks, drafts or orders drawn upon said account in the name of either of us, or the survivor or survivors of us; and in order to further facilitate the transaction of said business, each of us hereby assigns, each to the other, the whole of said account and the moneys deposited in said account, and all future deposits or increase thereof." This writing is neither ambiguous nor uncertain. It demonstrates a zealous intention of both parties to create a joint tenancy in establishing said account and in providing that all subsequent deposits and additions thereto should be held in joint tenancy. That such is clearly the law may at once be determined by reference to section 16 of the Bank Act, Stats.1909, as amended by Stats.1913, p. 335, which was in effect at the time the account was opened. Said section reads as follows: "When a deposit with a bank shall be made by any person in the names of such depositor and another person or persons, and in form to be paid to either or the survivor or survivors of them, such deposit thereupon, and any additions thereto made by either of such persons upon the making thereof, shall become the property of such person[s] as joint tenants, and the same, together with all interest thereon, shall be held for the exclusive use of the persons so named ***." Said section was amended in 1925, Stats.1925, p. 512, and became section 15a of the Bank Act. It was in effect at the time of the death of Henry Watkins and contained in substance the same provisions as said section 16, which it superseded. That such is a fair construction of the contract of said decedents as well as of said section is emphasized by the decision of Hurley v. Hibernia Savings, etc., Society, supra. In that case Patrick J. Hurley opened an account in joint tenancy with his minor son, Daniel. The surviving widow of Patrick sued to recover the money on deposit in said bank account. The account was opened with an agreement as follows: "Patrick Hurley and Daniel Hurley, a minor age 14 years, 8 months. Payable to either or to the survivor of them. In account with the Hibernia Savings and Loan Society". At the same time they jointly subscribed to an agreement to the by-laws and rules of the society. The question squarely presented to the court was whether or not said bank account constituted an account in joint tenancy between Patrick and his son. "There is no ambiguity or uncertainty about this language," said the court. "It was undoubtedly intended to and did create a joint interest or ownership in the deposit *** it must have been the intention of the deceased Hurley *** that upon his death his son should take the deposit as survivor. *** He declares that as deposited by him it is not his separate property but the joint property of himself and his son." [126 Cal.App. 314, 14 P.2d 577.] In the light of that language we could find no excuse for the trial judge herein had he determined otherwise. The language used by Mr. and Mrs. Watkins in opening their said bank account can lead to no other conclusion than that they purposed to create an account in joint tenancy with its concomitant incidents. By such an account "the title to the money deposited passed out of the community at the time of the deposit" and each tenant was seized of the whole estate from the moment of the deposit and agreement. Estate of Gurnsey, 177 Cal. 211, 170 P. 402, 403.
3. It is contended that the court erred in finding that all of the property owned by said decedents was held in joint tenancy. They urge that the court committed error in admitting the deeds and contracts to vary the declaration in said will; that as a matter of law the effect of said declaration was to convert titles held in joint tenancy into community property. The joint and mutual will of the decedents contained the following provisions: "We declare that the property here disposed of was accumulated and acquired during our marriage and is community property". Also, each party declared that he devised and bequeathed to the other "all of my property, community and separate, whatsoever and wheresoever". Said contention of appellants is without support. In the absence of some agreement between spouses, the mere declaration in a will that certain property is separate or community is insufficient in itself to establish the actual character of the ownership of such property. Rather is the character of an estate determined "from the mode in which the property was acquired". Estate of Granniss, 142 Cal. 1, 75 P. 324, 325; Bias v. Reed, 169 Cal. 33, 145 P. 516; Estate of Fritz, 130 Cal.App. 725, 20 P.2d 361. Such a declaration is merely the testator’s opinion as to the character of the ownership of such property and cannot be considered to contradict the terms of the actual agreements by which the joint tenancies were created. Estate of Fritz, supra.
The cases relied upon by appellant are not in point. In Flanagan v. Capital National Bank, 213 Cal. 664, 3 P.2d 307, at the time the husband executed his will in which he disposed "of all the community property" his wife signed a writing in which she agreed to the provisions of the will and waived all of her rights in the community property. Under such circumstances the instrument which the wife signed was held to be a contract in which she agreed to accept the devises and bequests in the will in lieu of her rights in the community estate.
In Security-First National Bank v. Stack, supra, [32 Cal.App.2d 586, 90 P.2d 338], the will of the husband declared "that all of the property *** in my name or in the name of myself and my wife, is our community property, and it is my intention hereto to dispose not only of my separate estate and my share of the community property, but of the entire community estate". A waiver and election to take under the will was signed by the wife. By that instrument it is recited that the wife understood that the will disposed of the husband’s separate property and "our community property"; that the wife waived all claims to the community estate and "upon any of the property disposed of by said Will". A subsequent claim of the wife to certain securities as the surviving joint tenant failed for the reason that by the will and waiver both spouses had agreed that all property, whether of joint tenancy or otherwise, became a part of the entire community estate and was therefore disposed of by the will.
In the case at bar there is no evidence of any agreement between Henry and Jean Watkins to change the character of their titles from separate or joint tenancy to community. The declaration in their mutual will that the property disposed of was community in character was at most a legal conclusion of the spouses as to the status of the titles of their properties. It appears affirmatively from the evidence that such declaration was undoubtedly inserted in said will through inadvertence or ignorance. The attorney who prepared the will testified that he had advised the decedents that if the property had been acquired before marriage or after marriage by gift, devise or descent, it would be separate property; but that "if it was acquired after marriage otherwise, it would be community property". They thereupon announced that their "property to be disposed of by this will was community property". No inquiry was made by said attorney concerning the manner in which such property had been acquired or in whose name the title stood at the time of giving his advice. Nothing was said by either decedent relative to the fact that all of their property was held in joint tenancy.
During the course of the administration of the estate of Henry Watkins, Jean filed, in connection with her petition for an order terminating said joint tenancy, an affidavit for the purpose of determining the inheritance tax, in which she alleged "that all of the property of which the said Henry G. Watkins died possessed, either in his own right or as tenant in common with affiant, or as joint tenant with right of survivorship with affiant *** was as to each and every item and parcel thereof community property of this affiant and said Henry G. Watkins". The report of the inheritance tax appraiser filed in said probate proceeding of Mr. Watkins contained the following statement: "also property held in joint tenancy amounting to $314,153.75, which is taxable *** (all community property)". Thereafter the court duly made its order concerning said report of said appraiser as being true and correct and fixing the amount of the inheritance tax. Appellants contend that said order is res adjudicata as to the community character of the property taken over by Jean Watkins after the passing of her husband. However, it has been held that even though an order fixing the inheritance tax may incidentally decide questions concerning succession and beneficial ownership, such an order is not binding except for tax purposes as between those who claim the estate. Estate of Rath, 10 Cal.2d 399, 75 P.2d 509, 115 A.L.R. 836. The report of the inheritance tax appraiser, in the absence of other showing, was sufficient for the purpose of determining the inheritance taxes, but it cannot be construed as forming the basis of any judgment concerning the character of the ownership of the property in question. Such report is ambiguous in that it apparently states that the property which is held in joint tenancy is community property. One of the fundamental principles of law is that community ownership of property is inconsistent with ownership as joint tenants, and the two forms of ownership may not exist in the same property at the same time. The order of the court in fixing said inheritance tax was clearly not res adjudicata as to the character of the ownership of the property. Estate of Rath, supra. That order was made on behalf of the state against Mrs. Watkins to fix the amount of her inheritance tax. The doctrine of res adjudicata does not apply except in actions or proceedings where the parties are identical and the issues are the same.
Appellants contend that the declaration of Jean Watkins in her said affidavit, to the effect that said property was community in character, was an admission against interest. It is indeed of the nature of an admission against interest. But here, as in the case of any admission, it must be weighed in the light of the circumstances in which it occurred. Said affidavit was filed in a proceeding to determine the amount of inheritance tax to be paid by Jean upon the estate of her deceased husband, and it merely recited the manner in which the property had been acquired and the fact that it was held in joint tenancy. The affidavit sets forth that she had stated the facts to her attorney and that he had advised her that all of said property was community in character. The same attorney testified on the trial of this action that in his opinion the property was community and that the fact that it was held in joint tenancy did not alter its community character. Argument to show that the attorney’s opinion was erroneous will not be necessary. A husband and wife may be agreement convert their community property into the separate estate of either spouse. In re Kessler, 217 Cal. 32, 17 P.2d 117; Siberell v. Siberell, 214 Cal. 767, 7 P.2d 1003; Estate of Gurnsey, supra. The averment of Mrs. Watkins in her affidavit was not a statement of fact but was here mere conclusion expressly based upon said erroneous advice.
4. It is insisted that the evidence is insufficient to support the conclusion that the joint tenancies were validly created if said decedents acted under a mutual mistake of law. The claim of mistake of law is based upon the mutual misunderstanding between decedents and one of their counsel and upon the erroneous advice of another, as a result of which they both declared in their joint will, and Jean declared in her said affidavit, that their property was community in character. But it appears without conflict in the evidence that it was the intention of both Mr. and Mrs. Watkins to place their properties in joint tenancy. The fact that there is a conflict in the evidence as to the result they may have anticipated is not a conflict as to what they did. They did execute agreements of joint tenancy with reference to their safe deposit box and their bank account, and they took deeds of joint tenancy. From the testimony of the witness Harper, a business associate of Mr. Watkins, it appears that the latter fully and correctly comprehended the result to be achieved by creating a joint tenancy. The trial court was amply warranted in determining that the joint tenancies were validly created and with definite purpose.
5. Appellants contend that prejudicial error was committed in denying them a trial by jury. They base their contention upon the theory that sections 1080-1082 of the Probate Code should be read in connection with section 1230 thereof, and that said section authorizes a jury in such proceedings. Section 1080 provides that any person claiming to be an heir of decedent, or otherwise entitled to distribution of the estate, may after the time for filing claims against the estate has expired file a petition setting forth his claim with a prayer "that the court determine who are entitled to distribution of the estate"; and further, that any person may appear and file a statement of his interest in the estate, and that the clerk shall set the petition for hearing by the court.
Section 1081 reads: "At the time appointed, the court shall hear the petition and any objection thereto that may have been presented, and shall determine who are the heirs of the decedent *** of the estate and shall specify their interests."
Section 1082 provides: "When such decree becomes final it shall be conclusive upon the matters determined during the remainder of the administration of the estate and upon any subsequent proceeding for distribution."
The foregoing three sections comprise chapter XVII, Division III, of the Probate Code, and the title of the chapter is "Determination of Heirship".
Section 1230 of the Probate Code is as follows: "All issues of fact joined in probate proceedings must be tried in conformity with the requirements of the rules of practice in civil actions. The party affirming is plaintiff, and the one denying or avoiding is defendant. When a party is entitled to a trial by jury and a jury is demanded, and the issues are not sufficiently made up by the written pleadings on file, the court, on due notice, must settle and frame the issues to be tried. If no jury is demanded, the court must try the issues joined, and sign and file its decision in writing, as provided in civil actions. Judgment on the issue joined, as well as for costs, may be entered and enforced by execution or otherwise by the court as in civil actions." It is the language of section 1230 which appellants claim should be consulted in connection with an interpretation of said sections 1080-1082, comprising said chapter XVII, and they emphasize those portions of section 1230 which provide (a) that all issues must be tried in conformity with the rules of practice in civil actions, and (b) "when a party is entitled to a trial by jury and a jury is demanded", etc.
In support of their contention appellants cite three cases, namely, Estate of Sheid, 122 Cal. 528, 55 P. 328; Estate of Baird, 173 Cal. 617, 160 P. 1078, and In re Barton’s Estate, 16 Cal.App.2d 246, 60 P.2d 471, 472. Upon a consideration of said code section and said authorities we are forced to the conclusion that the claim of the appellants cannot be sustained. Referring first to the cited cases, it will be observed that in Estate of Barton a verdict was returned in favor of the Connor claimants, whereupon the court sustained the motion of the McGrew claimants for a judgment notwithstanding the verdict. The motion was granted and judgment was entered accordingly. Subsequently the motion for a new trial was granted in favor of the Connor claimants on the ground of newly discovered evidence, and both parties appealed. The holding of the district court of appeal that was pertinent to the contentions made by the parties was that the trial court has no power to grant a motion for judgment notwithstanding the verdict where there is a conflict of evidence. Since there was a conflict in the evidence presented by the two groups of claimants, it was held error to have granted said motion of the McGrew claimants. For that reason the case was remanded with instructions to enter judgment on the verdict. The opinion of the court continues thus: "In a proceeding to determine heirship issues of fact are joined and either party is entitled to a jury trial." This was emphatically dictum, in view of the paramount question which was presented there. The direction of said court of appeal to the trial court to enter a judgment upon the verdict is more rationally construed as meaning that the trial court having asked for an advisory verdict got it and in reason should act upon it in the absence of any contrary finding by the trial judge. Also, the authorities cited in said opinion fall far short of supporting dictum. Estate of Baird, supra, is a case which arose on a petition for distribution, which is provided for in chapter XVI of the Probate Code, within which there is no such language as that contained in chapter XVII, sections 1080-1082. Furthermore, section 1081 was not cited in connection with said Barton’s appeal.
The McGrew claimants merely denied the right to a jury trial under said section 1081; the Connor claimants replied by citing Estate of Baird, supra, and Estate of Sheid, supra. When a hearing was sought in the Supreme Court, the petition omitted any reference to the question of a jury trial but was confined to a discussion of the evidence. The Estate of Sheid case arose out of the petition for distribution, which was dismissed by the superior court. The Supreme Court held that such a petition could not be properly filed prior to the settlement of the final account and that it could not be considered because it was premature, having been filed within less than a year after the issuance of the letters of administration. The language of the Supreme Court, at page 532, of 122 Cal., at page 330 of 55 P., in which they said "that said issue is of a character which would render its submission to a jury entirely proper", meant no more than to say that there is no objection to having a jury render an advisory verdict in such a case.
Returning now to a consideration of the code sections, said section 1230 is a general rule, is a part of article III of chapter XXII, Division III, dealing with notices, orders and procedure and applies to the administration of estates. In its enactment the legislature had in mind that there are, definitely, certain probate proceedings in which a party is entitled to a trial by jury while in others he has no such right. But sections 1080-1082 are of a separate chapter and apply specifically to proceedings for the determination of heirship. Section 1080 provides that the claimant shall pray that the "court determine who are entitled to distribution of the estate". Had it been intended that a jury should ever have to pass upon the question as to who constitutes the heirs, the section would have said "the jury, or when the jury is waived, the court". The word "court" has a clearly defined and settled meaning, in that it is commonly "used *** synonymously or interchangeably with [[[[the word] ‘judge.’ " Newby v. Bacon, 58 Cal.App. 337, 339, 208 P. 1005; Von Schmidt v. Widber, 99 Cal. 511, at page 513, 34 P. 109.
Even the code itself distinguishes between trial by a jury and a trial by the court. Chapter V, Title VIII, Part II, of the Code of Civil Procedure, sections 631-636, treats of "trial by court"; but Chapter IV of Title VIII, sections 600-629, treats of "trial by jury". In the last-mentioned chapter the trials referred to comprehend the submission to the jury of issues of fact. Said Chapter V likewise treats of the trial by the court of questions of fact. A similar distinction is followed in the Probate Code, Section 371 provides "If no jury is demanded, the court must try and determine the issues joined", with respect to will contests. Also, section 382 observes the same distinction when it provides "if the jury shall find or the court shall decide that the will is invalid ***," in will contests after probate. And the very section 1230 itself maintains the same policy when it provides that "if no jury is demanded, the court must try the issues joined."
Within the Probate Code four separate sections provide expressly for jury trials. In view of the principle of common law wherein trial by jury was unknown in probate, can there be any conclusion other than that the legislature intended that jury trials should be allowed only in those cases for which the statutes specifically provide for it? It is an elementary rule of construction that the expression of one excludes the other, and it is equally well settled that the court is without power to supply an omission. Estate of Pardue, 22 Cal.App.2d 178, 181, 70 P.2d 678; Estate of Ohm, 82 Cal. 160, 22 P. 927.
Since this controversy arose out of a proceeding to determine heirship, it cannot be that a statutory provision outside of the chapter providing for such determination could control. "If the provisions of any chapter conflict with or contravene the provisions of another chapter of the same title, the provisions of each chapter must prevail as to all matters and questions arising out of the subject matter of such chapter." Sec. 4482, Title II, pt. 5, Political Code.
In section 371 of the Probate Code, Article I, which is a part of Chapter II, Division III, dealing with contests before probate, it is provided that any issue of fact, etc., "must be tried by a jury, unless a jury is waived". Also, in section 382, which is a part of the article providing for "Contests After Probate", it is provided that "a trial by jury must be had", etc., unless a jury is waived. In section 928, which is a part of Chapter XV, Article III, dealing with exhibits and accounts, it is provided that either party "is entitled to a trial by jury of the issues of fact", etc.; and in section 1471, which is part of Chapter V of Division IV, dealing with "Restoration to Capacity", it is provided that "the question of his restoration to capacity" must be tried by a jury. The emphatic language used in the four quoted sections indicates an intention to veer from the common law rule in those particular cases.
Therefore, in view of the language of the said section 1081 that "the court shall hear *** and shall determine who are the heirs", the legislature could not have intended to grant trial by jury in questions involving determination of heirship solely because of the provisions of said section 1230, which says no more than that a trial by jury shall be had "when a party is entitled to a trial by jury ***." The authors of that section had in view the variety of probate proceedings that pass through the courts, and for some of them such authors had provided for trials by jury. The language there used does not attempt to declare a rule for jury trials, but on the contrary it is a specific requirement that the court must settle the issues when a jury is demanded. It indicates no intention to authorize trial by jury in probate proceedings other than in those where that privilege is unmistakably granted.
Another reason why a jury trial is not authorized by sections 1080-1082 is that the proceeding to determine heirship is not an adversary contest but is rather a proceeding in rem. Section 1082 requires that the decree entered by the court provides that "when such decree becomes final it shall be conclusive upon the matters determined". It does not provide that the decree shall be conclusive upon merely the parties or the claimants but, on the contrary, it shall be conclusive as against the world. In such proceedings there is no issue created by the traversing of allegations of fact in the petition. It is a proceeding to determine a fact concerning a decedent, and the determination of that fact controls the matter of inheritance. The proceeding is not limited to the conflicting claims of those parties who appear, but it applies to any person extant who might, by reason of the degree of his consanguineal relationship to the decedent, be entitled to inherit from him whether or not such person appear to present his claim. There need be no conflict between the several claimants and groups of claimants. If a proceeding be undertaken to establish the rights of a nephew and at the hearing the court finds that decedent has a surviving son, the court would decree the distribution of the estate to such son although he had filed no claim.
For these reasons we think the trial court was free from error in denying a jury trial. 6. We come now to the consideration of a more serious question, namely, whether the court erred in finding that decedents had accumulated various parcels of real property, part separate and part community, contrary to the stipulation of the parties that all of the real and personal property of said decedents was community prior to the execution of any of said instruments creating said joint tenancies. The court also found that on September 2, 1922, the titles of real properties held as separate and as community were converted into titles of joint tenancy of the decedents. Appellants rely upon the rule that where the parties to an action stipulate to the existence or nonexistence of certain facts a finding contrary to such stipulation is unwarranted. Faust v. City of San Diego, 115 Cal.App. 277, 1 P.2d 543; Crawford v. Imperial Irr. Dist., 200 Cal. 318, 253 P. 726; Wilson v. Mattei, 84 Cal.App. 567, 258 P. 453; Henning v. Wuest, 48 Cal.App. 147, 191 P. 713.
Respondent asserts that such error, if any, was not prejudicial because it was upon an immaterial matter. But it is not immaterial, as we shall presently see. The descent of property is governed by the law in force at the time of the death of the intestate. Estate of Harris, 9 Cal.2d 649, 72 P.2d 873. When decedent Jean Watkins departed this life, section 228 of the Probate Code was in effect. That section provides that upon the decease of an intestate without issue, any portion of decedent’s estate which had been the community property of decedent and a previously deceased spouse shall be distributed equally to the heirs of the decedent and the heirs of the previously deceased spouse. This section applies also to property which had formerly constituted a part of the community estate of the spouses but which the survivor had acquired as her separate property by an inter vivos gift from her previously deceased spouse. Estate of Rattray, 13 Cal.2d 702, 91 P.2d 1042; Estate of Slack, 13 Cal.2d 721, 91 P.2d 1052. These cases held that where during the lifetime of the spouses the community property is converted into the separate estate of either, the portion received by the wife is to be deemed a gift inter vivos, succession to which is governed by said section 228. Where community property is converted into an estate in joint tenancy of the spouses, the interest of each is separate property (Siberell v. Siberell, supra; In re Kessler, supra); and when the community partners invest their property with a title in joint tenancy it is conclusive evidence of their "intention *** to vest title in the survivor". Estate of Gaines, __ Cal.Sup. __, 100 P.2d 1055, 1061.
Of course, where each spouse contributed his separate property to the creation of an estate in joint tenancy it cannot be denied that the conversion of such separate estate into an ownership in joint tenancy does not constitute a gift inter vivos on the part of either (Estate of Harris, supra) for the evident reason that their contributions were mutually supported. But in this case the stipulation of the parties was that all property owned by the decedents comprised their community estate prior to the creation of any joint tenancy, and the record contains no evidence contrary to such stipulation. Therefore, in the light of the Rattray decision, supra, it is clearly to be seen that if the court had made its finding in accordance with said stipulation, or no finding at all, the appellants would necessarily have been awarded their share in the distribution of the estate of decedent herein on the theory that one-half of her estate was an inter vivos gift from her previously deceased spouse. The error in making such finding, it is plainly to be seen, is prejudicial. It follows that the judgment awarding respondent all of the residual estate cannot be supported.
For the reason above mentioned the judgment is reversed with direction to proceed in accordance with the views herein expressed, appellants to recover costs on appeal.
We concur: WOOD, J.; McCOMB, J.