Estate of Durham

[150]

McCOMB, J.

These are appeals by William C. Durham as executor of the estate of Virginia Fair Durham, decedent, and William C. Durham, individually, from an order of the probate court:

1. Determining heirship;

2.

Setting apart a recorded homestead ;

3. Fixing an allowance of attorneys’ fees for extraordinary services; and

4. A purported appeal from the order appointing appraisers to appraise certain property upon which decedent had declared a homestead.

1.

The appeal from a decision of the probate court on the petition to determine heirship.

Question: Was there substantial evidence to sustain the probate court’s findings that (a) three separate parcels of real property standing in the name of decedent at the time of her death were her separate property, and (b) two ba/nk accounts standing in decedent’s name at the time of her death were community property?

Tes.

An appellate court will view the evidence in the light most favorable to respondent, will not weigh the evidence, will indulge all intendments which will sustain the finding of the trier of fact, and will not disturb such finding if there is substantial evidence in support thereof.

(Estate of Isenberg,

63 Cal.App.2d 214, 216 [2] [146 P.2d 424].)

Applying the foregoing rule to the evidence as disclosed by the record in the instant case we find:

(a) The title to the real property in question was deeded to decedent by a written instrument as her separate property. Appellant concedes this in his brief by saying, “The only evidence of any kind or character on this subject was the presumption established by the deed in each of the three parcels and a declaration in a will drawn in 1933 at a time when decedent and appellant owned only one of the three parcels involved.” This property was taken in decedent’s name as her sole and separate property for the purpose of avoiding and defrauding her husband’s creditors.