Hartnett v. Hartnett

MUSSELL, J.

This is a proceeding to determine heirship and the character of the property of the estate of Leslie Eugene Hartnett, deceased. The petitioner, who is the surviving spouse of the decedent, alleged in her petition filed herein on December 7, 1955, that substantially all of the property listed in the inventory of the estate is community property and that it is necessary that the character of said

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property be fixed and determined in order that proper distribution may be made.

Leslie Eugene Hartnett died on or about February 5, 1954, and on August 25, 1955, his will, dated August 3, 1951, was revoked by order of court as to the petitioner herein since she and decedent were married subsequent to the execution of the will. When the hearing on the petition to determine heir-ship was commenced, counsel for petitioner moved the trial court to define the issues presented by the petition and stated that the first theory they desired to submit was whether or not all of decedent’s property had been transmuted into community property by agreement between the decedent and petitioner. The trial court then stated that they would proceed with the matter of whether or not there was some agreement between the decedent and Lucille Hartnett regarding the property. After hearing testimony on the issue thus defined, the court, on May 31, 1956, made a minute order, in part, as follows: “On the issue as to whether all of the separate property owned by decedent at the time of his marriage to petitioner Lucille Hartnett, was transmuted to community property of decedent and petitioner, Lucille Hart-nett, the court finds that all of said property was not so transmuted.”

On July 2, 1956, petitioner, Lucille Hartnett, after having obtained leave of court therefor, filed an amendment to her petition, alleging as follows:

“6. Petitioner is informed and believes and upon that ground avers that substantially all of the property listed in such inventory is community property; and further, to the extent that the court determines or finds otherwise, the said property is the separate property of Petitioner as surviving joint tenant thereof. Petitioner further avers that it is necessary and appropriate that the precise character of such property as community property or separate property be fixed and determined by this Court in order that proper distribution thereof may be made pursuant to the aforesaid Order of this Court.”