Jenkins v. Overholt

DRAPEAU, J.

By petition the surviving widow of Andrew T. Jenkins, deceased, sought an order setting apart a parcel of alleged community property as a homestead for her use. The executor of decedent’s last will filed objections on the ground that said parcel of real estate was the separate property of decedent and not community property, as alleged.

The court found that the realty was the separate property of decedent and that no homestead was selected during his lifetime, and ordered that said parcel be set aside for the use of the widow for a limited period, to wit: for the remainder of her life subject to the terms of the will and the widow’s election to take her community interest in the estate against the terms of the will. The widow appeals.

It is here urged that the evidence is insufficient to support the order. This for the reasons that property acquired during marriage is presumed to be community property (Civ. Code, § 164) and that respondent objector did not sustain the burden of proof necessary to rebut that presumption.

The law with respect to this problem was pointed out by this court in

Estate of Trelut,

26 Cal.App.2d 717, 723 [80 P.2d 147], as follows:

“The sufficiency of the evidence is generally a matter for the trial court or jury, and the findings or verdict will not be lightly set aside. Following the general rule, a finding of the trial court that property is either separate or community in character is binding and conclusive upon the appellate court, if it is supported by sufficient evidence, or if it is based on conflicting evidence or upon evidence that is subject to different inferences. (3 Cal.Jur.Supp. 573.) Further, a finding against a presumption is binding upon the appellate court

(Estate of Cronvall,

220 Cal. 503 [31 P.2d 372]), unless the evidence to rebut it is so weak and improbable that the finding is without substantial support.

(Olson

v.

Cornwell,

134 Cal. App. 419 [25 P.2d 879].) It is finally in each ease a question of fact for the court or jury to determine whether the evidence is sufficient to overcome the presumption. The rule has been expressed as follows: ‘If, upon an analysis of evidence of substantial character, in the' light of established rules, the mind of the trial judge, exercising reasonable discrimination, is satisfied that the naked presumption in favor of community property has been outweighed, then the find