Wheeland v. Rodgers

CARTER, J.

Plaintiff, as the administrator with the will annexed of the estate of his mother, Lena P. Rodgers, deceased, brought an action against defendant, Clarence S. Rodgers, the surviving husband of the decedent, and others, asserting a claim to certain property held by said defendant.

[220]

From a judgment in favor of defendant, Clarence S. Rodgers, plaintiff appeals.

Decedent and defendant Clarence S. Rodgers were married in 1911. At that time defendant owned, as his separate property, real property consisting of a lot upon which was located a brick house. Defendant followed his vocation of foreman bricklayer in which he earned $7.00 to $8.00, and sometimes as high as $14.00 per day, until his retirement in 1929. On August 23, 1920, a joint tenancy savings bank account was opened by defendant and decedent. Defendant informed decedent that he would sell the brick house property and place the proceeds thereof in the joint tenancy account and use them to construct a new house on other real property which was the separate property of defendant, title thereto being in his name. To that decedent agreed. The sale was finally consummated in July, 1924. During 1924, funds obtained by defendant from the sale of his separate property were deposited in the joint tenancy account and used therefrom to construct the new house in which defendant and decedent resided until her death in 1937. Defendant is in possession of the new house. After his wife’s death, he encumbered it with a trust deed given to his sister, one of the defendants herein, to secure a promissory note for $5,000. Certain furniture and household equipment had been given to decedent during her lifetime by plaintiff. Plaintiff claimed that because the funds for the construction of the new house were derived from the joint tenancy account, the decedent acquired a half interest therein as her separate property, which defendant now holds in trust for her estate; that the furniture being a gift to decedent was her separate property and now is an asset of her estate. The trial court found against those contentions, finding particularly as to the furniture that its value was “practically exhausted’’.and i(hat defendant would be entitled to have it set aside to him as exempt property.

On this appeal plaintiff urges that defendant holds a half interest in the new house in trust for decedent’s estate because it was paid for from the joint tenancy account, relying upon