Estate of Rogoff

[651]

SHOEMAKER, J.

This is an appeal by Nicky Rogoff, decedent’s son by a prior marriage and the executor of his estate, from an order confirming the report of the probate commissioner and setting apart a probate homestead to Hazel Rogoff, the surviving spouse of the decedent, Joseph Rogoff.

The record shows that on January 7, 1936, the decedent, Joseph Rogoff, purchased a house on 22d Street in San Francisco for $1,500. On December 29, 1937, he borrowed $1,100 and gave a deed of trust on the property to secure the loan. Sometime in 1938, Joseph met the petitioner, Hazel Rogoff, who was then living in Los Angeles. He subsequently asked her to marry him, informing her that he had a nice home in San Francisco, that “the home is not big, but it is going to be ours.” On March 10,1939, Joseph and Hazel were married. Prior to leaving Los Angeles, Hazel sold her furniture for $100. She and her husband then moved into the 22d Street house in San Francisco, and Hazel gave him her $100 so that he could make a payment on the house. Shortly thereafter, Hazel obtained a job in a laundry. She was employed continuously thereafter until shortly before the death of her husband in 1959. During the entire course of the marriage, Hazel’s earnings were applied to community expenses. Up until 1942, Hazel would cash her paychecks and give the money to Joseph. From their combined earnings he would then make the payments on the house and pay their other living expenses. By April 22, 1940, the encumbrance on the house was paid off.

Thereafter, in 1942, Joseph suggested that Hazel keep her paychecks and use them to buy groceries and other necessities. From that time on, she paid the bulk of the community expenses from her earnings, and Joseph appears either to have saved his earnings in a separate account or to have spent them on items for himself. When Nicky got out of the service, Joseph made him a gift of $3,500 in bonds. Hazel asked him why he had given so much money to Nicky, and Joseph told her, “Ain’t it enough we got a house? We don’t need that money—we are going to get pension and we got the house and what else we want?” On numerous other occasions, Hazel asked Joseph when he was going to put her name on the deed to the 22d Street house in accordance with their agreement. Joseph always told her not to worry about it, that they had no way of knowing which of them would die first, and that the house would be hers if anything happened.