Attebury v. Wayland

California Court of Appeal Feb 7, 1946 No. Civ. 12947Published

Before: Nourse

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Holding. The court held that the trial court's finding that the real property was the decedent's separate property was supported by sufficient evidence, as the plaintiff failed to overcome the statutory presumption of separate property with clear and convincing proof. Furthermore, the court held that general objections to the admission of evidence are insufficient to preserve specific claims of error regarding authentication for appeal.

Issues

Whether the trial court erred in admitting certified copies of deeds over a general objection of incompetency, irrelevancy, and immateriality.
Whether the evidence was sufficient to support the trial court's finding that the real property was the decedent's separate property.
Whether the trial court's valuation of the community personal property was supported by the evidence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is well settled that an objection to evidence or to the introduction of exhibits into evidence during the trial of an action on the ground of incompetency, irrelevancy and immateriality is too general to be considered on appeal”

“in order to overthrow the presumption the husband must establish by clear and convincing proof that the property was paid for with community funds.”

“It is apparent that the evidence was sufficient to sustain the court’s finding that the property was separate since the appellant failed to sustain his burden of overcoming the statutory presumption by clear and convincing proof.”

NOURSE, P. J.

Plaintiff as special administrator of the estate of his deceased wife, Lina Attehury, brought this action against their daughter to quiet title to certain real property and to recover personal property in which he alleged a community interest.

The evidence presented to the trial court indicated that in 1910 plaintiff Richard Attehury with his wife and ten children moved from Kansas to Oregon where he engaged in the livestock business on a small scale. There was testimony to the effect that Mrs. Attebury also earned money and that one of her sons gave her some calves which she raised into a small herd and sold. In February, 1915, Louis Attebury, the family’s eldest son, conveyed a house and lot in Standfield, Oregon, to “R. Attebury and Lina Attebury, husband and wife.” Subsequently by deed dated April 1, 1915, plaintiff conveyed this property to his wife; it was stated in the instrument that the reason for the conveyance was that the property “should have been deeded directly to the said Lina Attebury, as she paid the entire consideration therefor, and this grantor herein had no interest thereto. Hence this deed from him to his said wife to place the title of record where it properly belongs.” Finally, by a deed dated March 9, 1923, Lina Attebury and R. Attebury conveyed the property to one Virgie

[3]

Ball. Certified copies of the three deeds were admitted into evidence over plaintiff’s general objection.

The evidence showed that decedent, who had received the monetary consideration for the sale of the Oregon property, left her husband and moved to Yuba City, California, with her son, Theodore. She received no support from plaintiff while living there. Mrs. Attebury purchased a partially completed house in Yuba City in her own name and her son finished the interior of the dwelling for her. The purchase price of approximately $650 was paid by the decedent from money she brought from Oregon, although its exact origin is left in doubt by the record. In 1927 Lina Attebury sold the Yuba City property for $1,250 and moved to San Jose where she resided with various of her children for a period of about five years.

In 1932 Mrs. Attebury moved to Santa Cruz and purchased the property which is the subject of this litigation for $550. The deed, dated September 21, 1932, conveyed the small house to her in her own name. She resided there until her death in 1943. In 1937 plaintiff lived with his wife for six months, after which time they separated again. Finally, by a deed dated December 15, 1938, and recorded on December 21, 1943, the decedent conveyed the Santa Cruz property to her daughter, Ada B. Wayland, defendant herein. The deed described the grantor as “Lina Attebury, a single woman.”

Attebury v. Wayland

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NOURSE, P. J.

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