Wedemeyer v. Elmer

[337]

SPENCE, J.

Plaintiff, the surviving husband of Georgie Wedemeyer, deceased, brought this action against defendant, as executrix, seeking to quiet title to an undivided one-half interest in two parcels of real property. One of said parcels was located in the city and county of San Francisco and the other was located in the county of Santa" Cruz. It was the claim of plaintiff that both parcels were the community property of plaintiff and the deceased. The trial court found in favor of plaintiff’s claim and entered judgment quieting plaintiff’s title to an undivided one-half interest in both parcels. Defendant appeals from said judgment.

It was conceded at all times by defendant that the Santa Cruz property was communi-ty property and while this appeal was taken from the entire judgment, no claim is here made that the judgment is erroneous in so far as it affects said Santa Cruz property. The controversy is therefore narrowed to the attack made upon the portion of the judgment relating to the San Francisco property.

Plaintiff and the deceased were married in 1912 and lived happily together on the San Francisco property from that time until the death of the deceased in 1936. Said property consisted of a lot improved with a building consisting of four flats. Prior to the time of the marriage, deceased had purchased said lot and had caused the improvements to be erected thereon. The property was subject to a mortgage in the sum of $6,000 at the time of the marriage. Plaintiff and deceased lived in one of said flats and deceased collected the rentals from the other flats during the entire period of her married life. The total rentals from the other flats averaged from $60 to $70 per month throughout that entire period. At the time of the death of the deceased, the unpaid balance on the mortgage amounted to $1975.

Plaintiff was a fireman in the San Francisco Fire Department and was earning $120 per month at the time of the marriage. He was so employed until 1930 during which time his earnings had gradually increased to $200 per month. He was retired in 1930 and thereafter received a monthly pension of $100 per month.

Plaintiff testified that all of his earnings were turned over to his wife and that said earnings, together with the rentals from said San Francisco property, were kept in a bank account in his wife’s name. He further testified that the pro