Estate of Thornton

1 Cal.2d 1 (1934) In the Matter of the Estate of WILLIAM M. THORNTON, Deceased. JOSEPH A. GARRY, as Executor, etc., Appellant,

v.

LUCY CRESWELL et al., Respondents.

S. F. No. 14262. Supreme Court of California. In Bank.

May 17, 1934. Jos. A. Garry, in pro. per., for Appellant.

Chase, Barnes & Chase, and J. L. Royle, as Amici Curiae on Behalf of Appellant.

Carey Van Fleet, Treadwell, Van Fleet & Laughlin, Alan C. Van Fleet, Pillsbury, Madison & Sutro, Maurice D. L. Fuller, Frank D. Madison and Marshall P. Madison for Respondents.

Marcel E. Cerf, Henry Robinson, Herbert A. Leland, John Perry Wood, John F. McCarthy and Norman T. Mason, as Amici Curiae on Behalf of Respondents.

PRESTON, J.

Appeal from order denying petition for distribution of one-half of the estate of William M. Thornton, deceased, to his widow, Helen H. Thornton, also now deceased.

The basic question is that of the constitutionality of so much of section 164 of the Civil Code as provides that all other property (than separate property as defined by sections 162 and 163 of said code) "acquired after marriage by either husband or wife, or both, including ... personal property wherever situated, heretofore or hereafter acquired while domiciling elsewhere, which would not have been the separate property of either if acquired while domiciled in this state is community property ..."

The findings of the court in this cause, which have ample support in the record, show the facts material to this discussion [3] to be as follows: The property involved was acquired by said husband and wife during the years 1885 to 1899 and 1906 to 1919, while they were domiciled in Montana and, under the laws of that state, it was the husband's separate property, subject only to the wife's dower rights. The husband returned to California in 1919, bringing said property with him, and was here domiciled until his death on February 25, 1929. His widow petitioned for distribution of one- half of his estate to her upon the theory that said property was converted into community property when it was brought into this state. The court below, however, upheld the testamentary attempt of the husband to dispose of all of said estate as his sole and separate property. The widow thereupon prosecuted this appeal from the order denying her petition for distribution and the executor of her will has now been substituted as petitioner and appellant in her stead.