Estate of Hansen

California Court of Appeal May 3, 1949 No. Civ. 16713Published

Before: Shinn

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Holding. The court held that military pay and allowances accumulated after the dissolution of a marriage by the death of a spouse are not community property, even if the presumptive date of death was determined by the government at a later time.

Issues

Whether the evidence supported the trial court's finding that the decedent died on March 13, 1944.
Whether military pay and allowances received by an estate after the dissolution of a marriage constitute community property.

Disposition. reversed

Quotations verified verbatim against the opinion

“The sum paid to the executors was not acquired by Lieutenant Hansen or by his surviving wife, nor was it acquired during the existence of their marriage.”

“The accumulation took place and the money was received by the estate after the dissolution of the community. It belongs to those who take under the will of decedent, subject to administration. No part of it is community property.”

SHINN, P. J.

Carl H. Hansen, deceased, made a will September 22,1943, by the terms of which he bequeathed $1.00 to his then wife, Doris Hansen, and the entire residue of his estate to the child of their marriage, Sheila Virginia Hansen. The will was duly admitted to probate and thereafter Doris, who had remarried to one Toomey, filed a petition for a decree determining her,interest and that of the daughter in the estate. The court found that there was community property consisting of $4,716.29 in cash, awarded $1.00 to Doris Hansen Toomey and divided the remainder between her and the daughter. Both parties appeal. The record consists of the clerk’s transcript.

The petition of Mrs. Toomey came on for hearing September 18, 1947, she and the daughter being represented by counsel. The court made findings, conclusions and a decree which recite that oral and documentary evidence was introduced in the hearing by all parties and that the same was duly considered by the court.

The court found that decedent, an air corps pilot, failed to return to his base in New Guinea while on a campaign mission over a wild jungle area and that he died on or about March 13, 1944. It was also found that the War Department continued decedent in a status of “missing in action’’ until January 27, 1946, when the department issued a presumptive finding of death as of that date. Through the Finance Officer of the United States Army $4,716.29 was paid to the executors of the will of decedent as pay and allowances earned by him to January 27,1946. Upon these facts the court concluded that the amount in question is community property and distributed it as aforesaid.

On the appeal of Doris Toomey she contends there was no evidence to support the finding that decedent’s death occurred March 13, 1944. This contention cannot prevail. In view of the recital of the findings and judgment that oral

[612]

and documentary evidence was received, and in the absence of any record as to the evidence that was taken, it must be conclusively presumed that the finding had support in the evidence.

(Harrison

Adams,

Estate of Hansen

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SHINN, P. J.

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