In Re Estate of Putnam

FORD, J.

Appellant, as executrix, bases her appeal upon the failure of the superior court to make a determination, pursuant to her petition for instructions, that property inventoried in the estate was community property.

In her petition filed June 9, 1958, appellant alleged that the decedent died on April 16, 1957, and that she was appointed executrix on November 14, 1957. She further alleged that at the time of the death the decedent and the petitioner were husband and wife and owned as community property the shares of stock and the real property listed in the inventory and appraisement on file, but that all of said property stood in their names in the form of joint tenancy. The petition contained the following statement as to the purpose of appellant in seeking the determination: "That in order for your petitioner to be able to efficiently administer the estate of the decedent, it is necessary that a judicial determination be made that said property was community property and therefore subject to administration herein; that no other or different procedure is provided by statute for the determination of such issue.”

In the same petition, the executrix also sought authority to comply with the terms of an option agreement made by decedent to sell a parcel of the real property for $450,000, which option was exercised after the death, and to convey the parcel of real property to the holder of the option. A copy of the option agreement and of the amendment thereto were attached to the petition and disclosed that each was signed by both the decedent and the petitioner.

The inventory and statement of assets in the estate, as shown

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by the copy thereof attached to the petition, had the prefatory statement that “All the property listed herein was community property of decedent and spouse. ’ ’ The affidavit of the appellant in that document was dated January 14, 1958. The property therein listed was appraised by the inheritance tax appraiser as having a total value of $962,613.84.

After the required posting of notice of the hearing, the matter was heard by the court, in the probate department thereof, on June 24, 1958. No one appeared in opposition to the petition. The petitioner, appellant herein, testified that she and the decedent came to California shortly after their marriage in Iowa on December 17, 1913, that her husband acquired no part of the property by gift or inheritance but that said property was acquired during the period of the marriage as the result of their joint savings and efforts, and that, although title was taken in the form of joint tenancy, it was intended by both to be community property. She further testified that they attended a class on California law and discussed the fact that their property was community property before they made their wills. The daughter of the petitioner and of the decedent gave evidence of a discussion between her z father and mother, prior to the execution of the wills, in which they referred to the property as community property.