Perkins v. West

MUSSELL, J.

Caroline R. West, the surviving spouse of J. Howard D. West, deceased, appeals from a judgment in which it was decreed that certain real and personal property standing of record in the names of appellant and her predeceased husband as joint tenants, was nevertheless the community property of appellant and said J. Howard D. West. West, hereinafter referred to as decedent, purchased the real property involved in April, 1942, and took title in his own name. The total price of the property was $6,500, $2,500 being paid in cash, of which appellant paid $500 and the balance being secured by a promissory note and trust deed signed by decedent and appellant. Decedent and appellant were married on May 29, 1943, and the $4,000 note and trust deed, which had been given as part of the purchase price of the property, was paid off, and a reconveyance was executed on January 10, 1944. On January 14, 1944, decedent and appellant joined in executing a deed to- said real property (which was known as the Carbon Canyon property) whereby it was conveyed to decedent and appellant as joint tenants. Bank accounts were opened by decedent and appellant and both signed the bank’s joint account forms without any discussion between them as to whether the funds would be considered as community property . . . “just a routine matter.” Beginning in October, 1946, decedent caused various stock certificates, some theretofore standing in his own name, to be issued or reissued in his name and that of appellant as joint tenants, each being pursuant to written instructions from the decedent.

On July 16, 1949, decedent made his will in which he stated that all of his property was community property with his wife, with the exception of a Hudson car which he directed

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his executor to sign over to his daughter. He directed his executor to make certain payments from his interest in the community property to his first wife, Amy L. West, one of the plaintiffs herein, to his daughters and to appellant. The will was dictated by decedent to G. E. Case, a certified accountant, who was called to decedent’s home at his request. At the time decedent was suffering considerably with a severe heart attack and was in bed. Case testified that when he came into decedent’s bedroom, decedent suggested that appellant leave the room so that he could dictate the will; that she did leave the room, and after decedent dictated the first part of the will, he had “another attack” and called out or made some noise which resulted in appellant’s coming back into the room; that decedent did not make any statement to the effect that his property was community property during any time that appellant was in the room; and that appellant was in and out of the room during the remainder of the dictation-; that after decedent had completed dictating the will, he, Case, went away, prepared the will and returned with it. shortly thereafter; that decedent then read the will and signed it; that it was also signed by witnesses and delivered to the witness and left in his possession; that appellant did not see the will prior to the death of the decedent. In this connection appellant testified that at the time she did not see the will and could not say what was in it; that she heard the deceased talking and did not “pay too much attention”; that decedent did what he wanted to and she did not interfere ; that she could not say whether she was in the room when decedent actually started talking; that she and the decedent did not agree at any time that any or all of the property-of the decedent which he had acquired before his marriage to her or thereafter should become community property.