Estate of Ballard

KAUFMAN, P. J.—

This is an appeal by Frank Ballard, the husband of the decedent and life tenant of the disputed property, from two probate orders in favor of the respondent, Lucy Weare, a niece of the decedent and the remainderman of the property. The first order approved and adopted the report of the referee that the disputed real property and its contents were the separate property of the decedent; the second order granted respondent’s motion to compel the sale of assets to pay the expenses of administration and inheritance taxes. Appellant contends that: the first order is void as the court lacked jurisdiction, as well as its being based on hearsay and contrary to the evidence. As to the second order, appellant contends that the order is premature, contrary to the best

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interest of the estate, and erroneous, as the inheritance tax cannot be charged against the corpus, but should be apportioned between the life tenant and the remainderman. There is no merit in any of these contentions.

The decedent, Lucia K. Ballard, died testate on April 17, 1960. Her entire estate consisted of the disputed real property at 2610 California Street in San Francisco, the house thereon and its contents, used as an apartment house. The will provided that the entire estate was devised to the respondent, subject to a life estate in favor of the appellant. Appellant was appointed one of the executors of the will and filed his first report and petition for distribution on May 29, 1961, alleging that he owned an undivided one-half interest in the property. By stipulation of the parties, the matter was referred to Probate Commissioner Eugene H. 0 ’Donnell who heard testimony on July 3, 1961. On July 13, the referee filed his recommendation that the court find that the entire estate of Lucia K. Ballard was her separate property and that the appellant had no interest therein. Subsequently, respondent filed her petition to sell the assets of the estate in order to pay the expenses of administration, funeral expenses, inheritance taxes, and other similar proper charges against the estate. The appellant filed his objections to the report of the referee and to the respondent’s petition to compel the sale. The probate court subsequently heard the matter, adopted the report of the referee, granted respondent’s petition, and entered the orders which are the subject of this appeal.

The evidence adduced at the hearing before the probate commissioner established that the appellant and Lucia K. Ballard were married on October 10, 1924. The property was acquired by the decedent on February 25, 1927, and title was taken in her name alone. The title remained in the sole name of the decedent until her death 33 years later. The sister of the decedent, Margaret Nugent (the mother of the respondent), testified that the California Street property was purchased for $7,000, which the decedent had received from the estate of their parents in San Salvador. Appellant testified that the property was community property, was acquired for $7,000 ($2,500 of his wife’s separate funds, $3,000 of his own separate funds, and $1,500 borrowed community funds), and maintained with community funds, but was always kept in his wife’s name for business reasons so that the house could not be attached by his business creditors. He also testified that his wife claimed the property was not community, and testified