Opinion
Hearing Granted in Bank April 26, 1928.
Appeal from Superior Court, Los Angeles County; John L. Fleming, judge.
COUNSEL
Stewart & Stewart, of Los Angeles, for appellants.
Overton, Lyman & Plumb and George W. Prince, Jr., all of Los Angeles, for respondents.
OPINION
SEAWELL, J.
This is an appeal from a judgment in favor of the defendants in an equitable action to establish the plaintiffs as equitable owners of certain property which was distributed in the estate of Jane Simonton, deceased, to defendants herein, other than defendant Los Angeles Trust & Savings Bank, under a provision of the last will of said decedent directing the distribution of the residue of her estate to her ‘heirs at law as provided by the laws of succession for the state of California.’ Plaintiff J. G. Simonton is the son of George W. Simonton, predeceased husband of Jane Simonton, by a former marriage, and the other plaintiffs are the children of a predeceased son of said George W. Simonton by said former marriage.
The facts pertinent to the present appeal are stated in Estate of Simonton, 183 Cal. 53, 190 P. 442, and in Simonton v. Los Angeles Trust & Savings Bank, 192 Cal. 651, 221 P. 368, wherein this court held that the complaint herein stated a cause of action as to the one-half interest in the shares of corporate stock here sued for in which plaintiffs’ rights, if any they had, were as remaindermen under the will of George W. Simonton, deceased. In reversing the order sustaining defendants’ demurrer to the complaint for insufficiency of the facts alleged to constitute a cause of action, it was held that the failure of a wife who is acting as executrix of her husband’s estate to inventory and account for community property of said husband and herself, through fraud or mistake, constitutes grounds for equitable relief in an action brought by the heirs or devisees of the decedent, as owners in equity of the property. It was further held that the proceedings in the estate of Jane Simonton (183 Cal. 53, 190 P. 442) did not estop plaintiffs herein from establishing the community character of the one-half interest in the shares of stock herein involved, in which their rights were as remaindermen under the will of George W. Simonton. Notwithstanding our statement of the law in the opinion in volume 192 of the reports, at page 651 (221 P. 368), the court below declared in its findings and conclusions of law and in the judgment:
‘That the decree of the above-entitled court in said estate proceedings [decree of distribution of probate court in estate of Jane Simonton] is still in full force and effect, and is conclusive and binding upon plaintiffs herein and upon each of them to the effect that all of the property upon which plaintiffs seek to impress a trust in their favor was the separate property of Jane Simonton at the time of the death of George Simonton, and to the further effect that defendants other than defendant Los Angeles Trust & Savings Bank are the owners thereof.’
It clearly appears that the court in finding that the property was separate in character attributed a conclusive effect to the decree of distribution. In so doing it was in error. The decision in Simonton v. Los Angeles Trust & Savings Bank, 192 Cal. 651, 221 P. 658, must be accepted as settling the law of the case.
Defendants (respondents) further contend that plaintiffs are estopped from obtaining relief as to the one-half interest as remaindermen in the instant action for the reason that they sought relief as to said one-half by objections filed in the estate of Jane Simonton to the petition for distribution to said defendants. As pointed out in the opinion filed upon the reversal of the order sustaining the demurrer to the complaint (192 Cal. 651, 221 P. 658), the probate court in the estate of Jane Simonton had no power to determine disputes as to title to property between the estate of Jane Simonton, deceased, or heirs and devisees of said decedent, and strangers, which plaintiffs herein must be deemed to be as to the remainder in one-half of the community property dependent upon the termination of the life estate in Jane Simonton, which was devised to them by the will of George W. Simonton. If plaintiffs had any claim to said one-half interest in said property it was adverse to the estate, and the probate court in the estate of Jane Simonton could not have taken cognizance of said claim and distributed said one-half interest to plaintiffs upon the theory that Jane Simonton during her life was a constructive trustee for plaintiffs of said estate in remainder because of her fraud or mistake incident to the proceedings for the probate of the estate of her husband. Although plaintiffs upon their objections filed to the petition for distribution in the estate of Jane Simonton claimed the entire interest in the shares of stock here involved as heirs of Jane Simonton under the provisions of subdivision 8 of section 1386, Civil Code, and did not claim a one-half interest as remaindermen, the proof showed that an interest in fee in one-half of the community property never vested in the wife, but that in said one-half interest she received only a life interest with remainder to the plaintiffs, with the result that plaintiffs could have no rights in said one-half as her heirs. The mere circumstance that plaintiffs claimed the entire interest rather than one-half as heirs of the wife, did not authorize the court in the estate of Jane Simonton to ignore the proof and adjudge the rights of plaintiffs as if the entire interest in the property vested in Jane upon the death of her husband, and from an examination of the portions of the record in said estate proceedings introduced herein it cannot be said that the court assumed to so act. The fact that plaintiffs misapprehended their remedy as to said one-half interest in seeking relief upon objections filed to the petition for distribution and sought relief upon a theory of the facts which the proof did not substantiate, would not estop them from later maintaining a separate equitable action appropriate to the facts actually existing. South San Bernardino Land & Improvement Co. v. San Bernardino Nat. Bank, 127 Cal. 245, 59 P. 699.
We cannot agree with defendants’ argument that, irrespective of the effect of the antecedent proceedings as a bar to the proof of the community character of the property herein involved, the judgment in their favor must be affirmed because plaintiffs failed in the instant case to establish the community character of the property. On the contrary, we are of the view that the evidence is insufficient, as a matter of law, to sustain findings that the property was the separate property of Jane Simonton.
Plaintiffs, in establishing the community character of the property, are aided by the presumption that property acquired during coverture is presumed to be community in character and by the rule that a presumption of gift does not arise from the mere fact that title is held in the name of the wife. Section 164, Civ. Code; Nilson v. Sarment, 153 Cal. 524, 96 P. 315, 126 Am. St. Rep. 91; Rowe v. Hibernia Savings & Loan Society, 134 Cal. 403, 66 P. 569; Fennell v. Drinkhouse, 131 Cal. 447, 63 P. 734, 82 Am. St. Rep. 361; Morgan v. Lones, 78 Cal. 58, 20 P. 248; 5 Cal.Jur. 314, note 14. These principles were not altered by the 1889 amendment to section 164, Civil Code, except as to real property conveyed to the wife. Stafford v. Martinoni, 192 Cal. 724, 221 P. 919. Section 325, Civil Code, providing that ‘shares of stock in corporation standing on the books of the corporation in the name of a married woman may be transferred by her, her agent or attorney, without the signature of her husband, and in the same manner as if such married woman were a feme sole,’ which section is found in a chapter of the Code relating to corporate stock, was not intended to change the rules declared in section 164, in a chapter of the Code specifically relating to husband and wife, in controversies between the husband and wife or those who claim in the right of either upon the death of one of the spouses, but was intended for the protection of third parties relying upon the appearance of title in the wife.
The evidence relating to the acquisition of property by either of the spouses is extremely meager. Jeremiah Leiter, a brother of Jane Simonton, testified that he thought his sister had ‘some money’ when she married because she was always working as a seamstress and teacher and she was economical; that between 1877 and 1882 she received $2,500 from the estate of her father of which the witness was administrator; that he could not say what she did with the money, but he thought she invested it in stocks; that he could not say what was the source of the money with which the stocks here involved were purchased, and that after marriage she received a small legacy, between $100 and $300, from the estate of her sister. This witness and Esther Simonton, the widow of a son of George W. Simonton, testified that George W. Simonton taught school in Vallejo at the time of his marriage with Jane and for several years thereafter, and later moved to Los Angeles, where he owned a vineyard and for many years was business manager for a Mrs. Hollenbeck in an enterprise the nature of which is not stated. Esther Simonton stated that George W. Simonton owned several lots in Vallejo, on one of which was his home, at the time of his marriage. The property accounted for by Jane Simonton as executrix of the estate of her husband was appraised at $13,428.33. The stocks here sued for were appraised at $10,023 in a stipulation filed by the parties herein, in which they adopted the valuation placed upon the said stock by the appraisers of the estate of Jane Simonton.
This evidence and the additional circumstance that the shares were issued in the name of the wife during coverture or are the proceeds of shares so issued is all the record contains on the subject. We deem it insufficient to prove that the property herein involved was separate property of Jane Simonton because acquired with funds constituting her separate estate, or because acquired by her after marriage by devise, bequest, or gift from her husband or any other person.
If the said property is shown to be community property it is not necessary that plaintiffs show that Jane Simonton fraudulently withheld it knowing it to be community property. It matters not whether she withheld it fraudulently or under the mistaken belief that it was her separate property. The legal effect is the same in either case. Estate of Simonton, supra; Simonton v. Los Angeles Trust & Savings Bank, supra.
This is the third time this cause has been before us on appeal in one form or another. The case is returned to the superior court for the sole purpose of determining the character of the omitted property in the light of the evidence that may be adduced and the rules of law applicable to the case. The character of the alleged omitted property, claimed to be community property, has not been, as the trial court seemed to hold, conclusively established by the judgment or decree of the court in any of the other proceedings mentioned.
The judgment appealed from is reversed.
We concur: CURTIS, J.; PRESTON, J.