Aho v. Kusnert

SEAWELL, J.

Respondents brought this action against the executrix of the will of their stepfather to establish a trust in a parcel of real property. Said property was purchased by their mother and- stepfather as a family home, and upon the death of their mother was distributed to their stepfather as community property. Plaintiffs alleged that said property was in fact the separate property of their mother, which fact their stepfather concealed from his attorney and from the court, and thereby procured distribution to himself as community property; that he caused his attorney to represent to them that the property was community and that he was entitled to distribution thereof; and that in reliance on this representation and the promise of their stepfather that he would make a will leaving it to them, they made no appearance in the proceeding for the probate of their mother’s estate. In a second count plaintiffs alleged that their stepfather induced their mother to purchase the property with her separate funds in reliance on liis representation and promise that plaintiffs should have the property when the mother and stepfather “were gone”. In violation of said promise, he devised the property to Louise Kusnert, defendant herein, whom he married after the death of plaintiffs’ mother. The court gave judgment for plaintiffs for the whole of said property, from which defendant prosecutes this appeal.

Plaintiffs’ father died in 1924. About a year later their mother, then Elizabeth Aho, married their stepfather, Gustaf

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Kusnert. Kusnert moved into the Aho family home, a rented house in Falk, near Eureka. Plaintiff Alii Price was then a student at the State Teachers College at Areata, and plaintiff Jouko Herbert Aho was attending high school. The property which is the subject of this action was purchased in March, 1926. It is located in Eureka. The contract of sale provided for a purchase price of $3,600, with a down payment of $1,000, which was made, and payments of $40 a month thereafter. Payments were completed in advance of the time provided in the contract, and on November 3, 1928, a deed was executed to Gustaf and Elizabeth Kusnert. Mrs. Kusnert died intestate in April, 1930.

Plaintiffs herein contend that approximately $1800, which is less than one-half the amount paid for the house as principal and interest, was paid from separate funds of their mother, the balance being paid from community earnings of their mother and stepfather. The evidence is insufficient to establish that so large an amount was paid from the separate funds of their mother. But however this may be, payment from separate funds of the wife of not more than half the purchase price of property taken in the name of husband and wife, does not establish ownership by the wife as her separate property of the entire interest in the property. Furthermore, the testimony of plaintiffs themselves, several times reiterated, that the understanding between their mother and stepfather was that they were to have the property when both their mother and stepfather “were gone’’, negatives the idea that it was the intent of their mother that said property, or even an undivided half interest therein, should be distributed on her death as her separate property, one-third to each of them and one-third to their stepfather.