CURTIS, J. This is an appeal from an order of partial distribution made and entered in the estate of Elizabeth Rattray, deceased. The contest is between the relatives of said Elizabeth Rattray and relatives of James Rattray, the predeceased husband of the said Elizabeth Rattray. By said decree of distribution, certain property in the estate of Elizabeth Rattray, deceased, was distributed in equal shares, that is to say, one-half thereof was distributed to relatives of Elizabeth Rattray, and one-half thereof to the relatives of James Rattray. The relatives of Elizabeth Rattray entitled to share in her estate are a brother and sister and the several children of a predeceased sister and two predeceased brothers. They have appealed from said order of partial distribution, and will be referred to herein as the appellants. The relatives of James Rattray, seeking to share in the distribution of the estate of Elizabeth Rattray by virtue of their relation[704]ship to her predeceased husband, are the brothers and sister of James Rattray, deceased, and will be referred to herein as respondents. The deceased, Elizabeth Rattray, will hereafter be referred to as the decedent.
The estate of Elizabeth Rattray consisted of cash in the amount of $26,890.67, some stock of little or no value, and a parcel of real estate of little value. This property, for the sake of this discussion, may be divided into two classifications : (1) Community property which came to the decedent, Elizabeth Rattray, upon the death of her husband. Said property had been devised and bequeathed to her by the last will and testament of her husband and had been inventoried and accounted for as part of his estate. (2) Property owned by decedent at her death which had not been included in the inventory of the husband’s estate.
At the outset it was readily admitted by appellants that as to that portion of the estate of decedent in the first classification, that is to say, the property which had formerly been the community property of the spouses and which had come to the decedent upon the death of her husband, having been devised and bequeathed to her in his last will and testament, the respondents are entitled under the provisions of section 228 of the Probate Code to share equally with them by virtue of respondents’ relationship to James Rattray, the predeceased spouse of decedent. However, as to that portion of the estate of decedent which had not been included in the inventory of the estate of her predeceased husband, and which amounted to the sum of $18,307.03, appellants object to respondents’ receiving any part thereof, contending that such property was the separate property of the decedent, that as to such property section 228 of the Probate Code has no application, and they, as the sole heirs of decedent, are entitled to receive the whole thereof.
The trial court found, and made its order of distribution accordingly, that “all of the estate of Elizabeth Rattray, deceased, was community property of said decedent and her said previously deceased spouse, James Rattray, and came to Elizabeth Rattray, from James Rattray, by gift, devise and bequest”, and that said respondents “constitute heirs of the within decedent under the provisions of section 228 of the Probate Code of the State of California, and are en[705]titled to succeed to one-half of the estate of Elizabeth Rat-tray.”
It is at once apparent that the order of distribution of the property in the first classification by the trial court was based upon the finding that the property was the community property of the spouses which had come to Elizabeth Rattray from her predeceased husband “by devise and bequest”. There is no question as to the correctness of the order of distribution in so far as it relates to this property. As to the second classification of property, the order of distribution, it is apparent, was based upon the finding that the property was the community property of the spouses which had come to Elizabeth Rattray “by gift”. The correctness of the conclusion of the trial court that respondents as relatives of the predeceased spouse were entitled to share in the distribution of this property depends upon the answer to two questions: Was the finding of the trial court that the property was the community property of the spouses which had come to the decedent by gift from her husband supported by the evidence? Do the provisions of section 228 of the Probate Code control the distribution of the property of a decedent dying intestate without issue who acquired said property as an inter vivos gift of community property from a predeceased spouse ?
We are satisfied that the answer to both questions is in the affirmative and consequently the order of distribution of the trial court with reference to this property is correct.
With reference to the money claimed by appellants to have been the separate property of the decedent, proof was offered to the probate court by appellants that at the time of the death of decedent’s husband in 1930, decedent had on deposit with a bank in her own name, as shown by her bank books, the sum of $16,618.90. A property search report by a title company was also introduced by appellants which tended to show that decedent during her married life, had held title in her own name to several parcels of real estate. Aside from the fact of title being held by her as her separate property, no evidence was produced to explain the source of the funds by which the property was acquired by her as her separate property. If no evidence of probative value was offered by respondents in proof of the fact that the source of this property was the community prop[706]erty of the spouses, respondents would necessarily fail to establish their right to inherit by virtue of their relationship to the predeceased spouse of decedent. Since their right to inherit depended not merely upon the fact of that certain relationship, but upon the fact of such relationship plus the fact that the property claimed by them as heirs had formerly been the community property of the decedent and her predeceased spouse, the burden of showing such additional fact rested upon them. (Estate of Simonton, 183 Cal. 53 [190 Pac. 442].)
The sole evidence available upon this question, and produced by respondents, was the testimony of William Battray, a brother of the predeceased spouse. Undoubtedly the trial court, in accepting as true the testimony of said witness, had in mind his interest in the outcome, and in weighing his evidence, gave due weight to this factor. We are of the opinion that this testimony was sufficiently substantial to support the finding of the trial court with reference to the community character of this property, and the necessary inference therefrom that since all of the property had been the community property of the spouses, and the wife had no other source of income, this property of the wife had come to her as an inter vivos gift from her husband. Briefly summarized, the testimony of William Battray was to the effect that he first met decedent two years after her marriage in 1908 to his brother, James Battray, and that he stayed with them for some little time; and then saw them at intervals for several years; that quite often he had discussions with them relative to their financial affairs; that at the time of the marriage his brother had no property; that his sister-in-law had no property at the time of their marriage; that after their marriage she was a housewife for her husband; that shortly after the marriage his brother started to work for the Los Angeles Water Company and worked for that company for approximately twenty years; that he worked up to the position of foreman in which position he earned $200 a month; that his brother was ill for about a year prior to his death in 1930 and left the employment of the company; that his brother had never inherited anything from anybody and that he had never heard from his sister-in-law or anyone else that she had ever inherited any; that she did nothing to earn her livelihood after her husband’s death but con[707]tinued to be a housewife; that at the time of the husband’s death they owned one piece of real property, and at different times had sold three other parcels of property; and that they were very frugal in their manner of living. This testimony, although uncorroborated, was likewise uncontradicted by any fact or circumstance which would support in the slightest degree any inference that the source of the property was not community property of the spouses. The property acquired by them totaled an amount commensurate with the income of the husband and their manner of living. The trial court was justified, therefore, in concluding that all of the property of the spouses, including the amount on deposit in the bank in the wife’s name, was acquired by their joint efforts and from the frugality of the spouses during their twenty-two years of married life.
With reference to the sum of $1688.13, acquired by decedent from some unexplained source, and which goes to make up the total of $18,307.03, claimed by appellants as a part of decedent’s estate wholly distributable to them, since the wife engaged in no gainful occupation subsequent to the death of her husband, this money may reasonably be traced as interest upon her bank deposits, and as such fruit of community property, must likewise be deemed to be community property. The contention of appellants therefore, that the evidence does not support the finding of the trial court to the effect that all the property in the estate of the decedent was the community property of the spouses, and that a portion thereof came to the decedent by gift from her predeceased husband, cannot be sustained.
A more difficult problem is presented with reference to the question of whether or not the provisions of section 228 of the Probate Code control the distribution of property of a decedent dying intestate without issue who acquired said property as an inter vivos gift of community property from a predeceased spouse.
Appellants contend that the first paragraph of subdivision 8 of section 1386 of the Civil Code (which upon the adoption of the Probate Code by the legislature in 1931 was reenacted as section 228 of the Probate Code) has been construed as applying only to the community property of the spouses received by the surviving spouse “by will or inheritance or retained by virtue of its character as community [708]property”, and as having no application to community property which had come to the decedent during the lifetime of the spouses as an inter vivos gift from the predeceased spouse, and hence section 228 of the Probate Code must necessarily receive the same construction. (Estate of McCauley, 138 Cal. 546 [71 Pac. 458]; Estate of Simonton, supra.) It cannot be gainsaid that there is a great deal of force in this argument.
Respondents contend that section 228 of the Probate Code and section 229 of the Probate Code should be construed together, as were the two paragraphs of subdivision 8 of section 1386 of the Civil Code upon which the above sections of the Probate Code were based, and as so construed, by an enlargement of the scope of section 229, the scope of section 228 has likewise been enlarged to include the community property of the spouses which came to the decedent by an inter vivos gift from the predeceased spouse.
We are of the opinion that a study of the history of these two sections since the original enactment of subdivision 8 (mistakenly numbered subdivision 9) of section 1386 of the Civil Code in 1880, and an understanding of the obvious purpose behind the enactment of these two provisions, controlling, in the absence of issue or testamentary disposition, the descent and distribution of property of a decedent which had been either the community property of the spouses or the separate property of a predeceased spouse, compels the conclusion that section 228 and section 229 of the Probate Code should be read and construed together.
At the time of its enactment in 1880, subdivision 9 of section 1386 of the Civil Code (later renumbered correctly, subdivision 8) read as follows: “If the decedent be a widow or widower, and leave no kindred, and the estate, or any portion thereof, was common property of such decedent, and his or her deceased spouse, while such spouse was living, such common property shall go to the father of such deceased spouse, or if he be dead, to the mother. If there be no father nor mother, then such property shall go to the brothers and sisters of such deceased spouse, in equal shares, and to the lawful issue of any deceased brothers or sisters of such deceased spouse, by right of representation.” In other words, this subdivision was a mere last resort to prevent property escheating to the state in the event the decedent [709]left no kindred. (See Article, Rules of Descent under Probate Code sections 228 and 229, by W. W. Perrier, Jr., in 25 California Law Review, p. 261.) (Apparently by an oversight issue of the predeceased spouse by a former marriage were not included among the designated relatives entitled to inherit.) Under the section as it then read, the question of the scope of said provision relative to community property was first presented in 1903 for determination. The court in Estate of McCauley, supra, held that the community property referred to in subdivision 9 of section 1386 of the Civil Code as distributable to the relatives of a predeceased spouse of a decedent leaving no kindred, must have been property which came to the decedent on the death of the predeceased spouse and that said section had no applicability to the property which had been the community property of the spouses and had come to the decedent as a gift from such predeceased spouse. In that case a widow who had received the bulk of her estate as an inter vivos gift from her husband died testate leaving no kindred. She bequeathed to nine individuals and five charitable corporations a money legacy. The legatees, other than the charitable corporations, sought to have the legacies to said corporations reduced to one-third of the distributable estate by reason of the provisions of section 1313 of the Civil Code which provided that charitable corporations could not take devises or bequests by will which should collectively exceed one-third of the estate of the testator leaving “legal heirs”. Appellants argued that two nieces of the predeceased husband of decedent (not mentioned in decedent’s will) were “legal heirs” of the decedent by virtue of subdivision 9 of section 1386 of the Civil Code, and that if any of decedent’s property of which she died seised had been common property at any time before the death of her spouse, it must be regarded as community property regardless of any gift to her by her husband in his lifetime, and as her husband left legal heirs, and she left no kindred, such property must be taken into account in determining the “one-third of the estate of the testator leaving legal heirs (Section 1313, Civil Code) ”. The court was impressed by the fact that such a construction would greatly circumscribe the right of the wife of absolute testamentary disposition, if she left no kindred, and held that the nieces of the predeceased husband were
“Section 228. No issue: Community property. If the decedent leave no issue, and the estate or any portion thereof was community property of the decedent and a previously deceased spouse, such property goes in equal shares to the children of the deceased spouse and to their descendants by right of representation, and if none, then one-half of such [713]community property goes to the parents of the decedent in equal shares or if either is dead to the survivor, or if both are dead in equal shares to the brothers and sisters of the decedent and to their descendants by right of representation, and the other half goes to the parents of the deceased spouse in equal shares, or if either is dead to the survivor, or if both are dead in equal shares to the brothers and sisters of such deceased spouse and to their descendants by right of representation. ’ ’
“Section 229. No issue: Separate property of deceased spouse. If the decedent leaves no issue, and the estate or any portion thereof was separate property of a previously deceased spouse, and came to the decedent from such spouse by gift, descent, devise or bequest, such property goes in equal shares to the children of the deceased spouse and to their descendants by right of representation, and if none, then to the parents of the deceased spouse in equal shares, or if either is dead to the survivor, or if both are dead in equal shares to the brothers and sisters of the deceased spouse and to their descendants by right of representation.”
It is apparent from the history of these code provisions and the various changes therein that ever since the amendment in 1905, wherein the origin or source of the property was first set up as one of the determining factors in the descent and distribution of the estate of a decedent dying intestate without issue, that there has been a consistent attempt to work out a reasonable, consistent scheme of distribution wherein upon the death of a decedent intestate without issue, instead of the whole property going to the relatives of the last surviving spouse, the property should go back to the relatives of the spouse from which title was derived. The scheme in general, as was fair and reasonable, provided that the separate property of a predeceased spouse should go back in its entirety to the relatives of said predeceased spouse, and that the community property of the spouses should be shared equally by the relatives of the predeceased spouse and the relatives of the surviving spouse since both spouses are deemed to have contributed equally to its acquisition. (Estate of Brady, 171 Cal. 1 [151 Pac. 275] ; Estate of McArthur, supra; Estate of Putnam, 219 Cal. 608 [28 Pac. (2d) 27].) It will be noted that the provisions relative to the separate property of the prede[714]ceased spouse and relative to the community property of the spouses were contained in one subdivision of one section of the code (subd. 8 of sec. 1386, Civ. Code) and were intended to furnish one general plan of distribution based upon the same underlying fundamental principle, that the origin or source of the property should determine its distribution. As before noted, in Estate of Simonton, supra, the court in arriving at its conclusion with reference to the community property of the spouses based, in part, its reasoning upon the phraseology of the paragraph of the subdivision relating to the separate property of the predeceased spouse, saying, “There is a fair presumption that upon this point the provisions with regard to community and separate property were intended to be equivalent, for no reason for a difference exists ’ ’.
Logically, therefore, it seems that the only correct conclusion is that the two sections should be construed together. If they are construed together, a consistent scheme of distribution is provided. If they are construed separately an inconsistent scheme of distribution is provided for separate and community property which is not based upon reason or justice and has no relation to the obvious purpose which motivated the enactment of said provisions. If the sections are not construed together the result will be that the separate property of a predeceased spouse which has by inter vivos gift been converted into the separate property of the other spouse will go in its entirety to the relatives of the predeceased spouse, but the community property which has been converted by the predeceased spouse by inter vivos gift into the separate property of the other spouse will go wholly to the relatives of the decedent to the entire exclusion of the relatives of the predeceased spouse. In other words, the rational basis of the system of distribution is destroyed and a mere, arbitrary, inconsistent rule of succession substituted.
While the code commissioners disclaimed any purpose of making any substantial changes in the law as it existed prior to the proposed Probate Code, they did make a far-reaching change by the addition of the word, “gift” to section 229 “to make it logically complete”. It would seem self-contradictory to suppose that in adding the word, “gift” to section 229, which has application to separate property [715]“to make the section logically complete” they intentionally planned to destroy the harmony and consistency of the rule of distribution which had theretofore applied alike to separate and community property. In view of the fact that the two sections had theretofore been construed as being mutually dependent on each other, it seems more reasonable to conclude that the code commissioners in proposing the enactment of the two sections of the Probate Code, and the legislature in enacting them, intended that these provisions should in the future, as they had in the past, be construed as interrelated and mutually dependent upon each other and furnishing by this means a consistent scheme of distribution of property falling within the purview of these provisions.
Appellants argue that more solicitude should be exercised in providing that separate property should go to the relatives of the predeceased spouse than should be exercised in providing that the relatives of the predeceased spouse should share in the community property of the spouses, but we are unable to perceive any logical basis of such distinction between the two classes of property with reference to the rights of succession under the circumstances which entitle the designated relatives in either event to inherit. And any argument based upon a claim that there is any real basis of distinction between the two classes of property must, we think, be held to be untenable.
It is true that in the case of Estate of Miller, 23 Cal. App. (2d) 16, 18 [71 Pac. (2d) 1117], in which a hearing was denied by this court, it was held that where the membership fees and dues in the Widows' and Orphans’ Aid Association had been paid for out of community funds of a husband and wife, and the constitution of the association provided that the widow should be paid the sum of $2,500 if no person had been designated by the insured as beneficiary, and no beneficiary had been so designated, proceeds of the policy were properly payable to the administrator of the wife’s estate (she having died within two weeks of his decease) upon the theory that the payment of the membership fees and dues was an inchoate gift by the husband of community property which became complete upon Ms death, and that section 228 of the Probate Code did not apply to this community property which the husband by gift had converted [716]into his wife’s separate property. While it is true that this is a construction of section 228 of the Probate Code subsequent to its enactment in 1931, and the decision therein is necessarily predicated upon the conclusion that section 228 does not apply to community property of spouses which by inter vivos gift has become the separate property of the surviving spouse, it is apparent from the record in that case that the efforts of counsel for the heirs of the predeceased husband were directed primarily to convincing the court that the property had not become the separate property of the wife by gift, but had remained community property which came to her upon the death of her husband by virtue of its community character. However, upon more careful analysis of the two sections of the Probate Code, section 228 and section 229, we are convinced that the holding in that ease was in error. In Estate of Lissner, 27 Cal. App. (2d) 570 [81 Pac. (2d) 448], the court followed the ruling in Estate of Miller, supra, with reference to a part of the property in controversy which consisted of the proceeds of a life insurance policy in which the wife had been named as beneficiary. At the oral argument it was conceded by respondents that appellants were entitled to succeed to such proceeds in accordance with the holding in the Estate of Miller, supra, and the court so held. In the petition for a hearing to this court, this holding was not mentioned nor questioned. While it is to be regretted that a hearing was not granted by this court of the petition in Estate of Miller, supra, we do not believe that our failure to grant it, should preclude us from arriving at what we consider a correct conclusion when the matter is directly presented to us in the instant ease.
As we read section 228 of the Probate Code it provides that that portion of the estate of a decedent who dies intestate without issue, which has been the community property of said decedent and a predeceased spouse, which has come to said decedent by gift, devise, descent or bequest from such predeceased spouse, or belonged or went to the decedent by virtue of its community character on the death of such predeceased spouse, goes in equal shares to the relatives of the predeceased spouse and the relatives of the decedent designated in said section.
[717]The order of the trial court being in conformance with said construction of section 228 of the Probate Code is affirmed.
Shenk, J., Waste, C. J., Houser, J., and Seawell, J., concurred.