Veitch v. Ericksen

WARD, J.

—This appeal is taken from the decree of distribution in the estate of Mainert Nielsen, deceased, distributing one-half of the estate to appellants, children of Nielsen’s predeceased spouse, Sarah, and one-half to respondents, sisters and nephews of Nielsen.

Appellants’ opening brief is on file. Respondents have failed to file a reply brief within the time prescribed by the Rules on Appeal, and, pursuant to rule 17(b) of these rules the case has been submitted.

(Zeigler

v.

Bonnell,

52 Cal. App.2d 217 [126 P.2d 118];

Ramacciotti

v.

Galiano,

59 Cal. App.2d 8 [137 P.2d 722].)

Appellants contend that under section 228 of the Probate Code they should receive distribution of the entire estate, not one-half as decided by the trial court.

The facts are not in dispute. Appellants, Myrtle Veitch, Conrad von Rappard and Edward von Rappard are the children of Sarah Nielsen and her first husband, von Rappard. After von Rappard’s death, Sarah married Mainert Nielsen and the two acquired community property which they used to purchase a piece of real property. They held this real property in joint tenancy. Sarah Nielsen died intestate on October 26, 1938, and her interest in the real property was thereby terminated. Mainert Nielsen died intestate on December 30, 1941. He did not leave a widow or children.

A dispute has arisen between the children of Sarah Nielsen (appellants) and the sisters and nephews of Mainert Nielsen (respondents) as to who is entitled to take the property which Mainert and Sarah Nielsen had held in joint tenancy. The trial court decreed that appellants take half of the property and that respondents take half.

This case is governed by section 228 of the Probate Code, as amended in 1939: “If the decedent leaves

neither spouse nor

issue, and the estate or any portion thereof was community property of the decedent and a previously deceased spouse,

and belonged or went to the decedent by virtue of its community character on the death of such spouse, or came to