Estate of Anderson

142 Cal.App.2d 391 (1956) Estate of GRACE R. ANDERSON, Deceased. DANIEL HARTWELL SHATTUCK et al., Appellants,

v.

CROCKER FIRST NATIONAL BANK, as Executor, etc., et al., Respondents.

Civ. No. 16922. California Court of Appeals. First Dist., Div. Two.

June 19, 1956. Elkins & Wright for Appellants.

Peart, Baraty & Hassard, Joseph S. Rogers, Peter S. Sommer and Ronald P. Klein for Respondents.

DOOLING, J.

This appeal by the heirs of the decedent, Grace R. Anderson, is taken from so much of the order and decree of the probate court as determined that one- third of the residue of her estate, as to which she died intestate, was all, with the exception of the proportionate share of $4,239, which she received as executrix' fees in the probate of her predeceased husband's estate, the proceeds from community property of the decedent and said predeceased husband. The court accordingly determined that under Probate Code, section 228, the heirs of the predeceased husband were entitled to distribution of one-half of the property so determined to be community property.

[1] The burden is on the heirs of a predeceased spouse seeking to inherit through the estate of the surviving spouse under Probate Code, section 228, to establish that the property was the community property of the spouses and, where the identical property is not found in the estate of the surviving spouse, to prove that specific property in that estate is the proceeds of such community property. (Estate of Simonton, 183 Cal. 53, 60 [190 P. 442]; Estate of Harris, 9 Cal.2d 649, 662 [72 P.2d 873]; Estate of Rattray, 13 Cal.2d 702, 705-706 [91 P.2d 1042]; Estate of Abdale, 28 Cal.2d 587, 593 [170 P.2d 918]; Estate of Adams, 132 Cal.App.2d 190, 196 [282 P.2d 190].)

Decedent's husband died in 1939 leaving a gross estate appraised at $160,946.38. This was alleged by the widow [393] in the probate of that estate to be community property. In 1941 the widow received under the decree of distribution property of the appraised value of $148,578.88. The widow's estate was appraised at $424,581.76. She died in 1954, approximately 15 years after her husband's death.