Luchsinger v. Wieling

TRAYNOR, J.

The administrator of the estate of Matilda Wieling appeals from a judgment of the probate court in an heirship proceeding determining that certain real property was the separate property of Andrew Wieling and not his and his wife’s community property.

Andrew and Matilda Wieling were married in 1912. Matilda had five children by a previous marriage, four of whom survived her. Andrew Wieling, Jr., is the only child of the marriage between Andrew and Matilda and is the sole beneficiary of Andrew’s will. Andrew died January 13, 1947, and Matilda May 9, 1947. During their marriage they acquired eleven parcels of real property. Title to seven of these parcels was taken in Andrew’s name, and title to the remaining four in Matilda’s name. The evidence is not clear whether the money used to purchase the property was the

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community property or the separate property of either spouse. One of the lots in Matilda’s name was a gift from two of her children.

On the basis of the foregoing evidence and applicable presumptions appellant contends that the property in Matilda’s name was her separate property (Civ. Code, § 164), and that the property in Andrew’s name was community property, on the ground that it was acquired by him after marriage other than by gift, bequest, devise, or descent. (Civ. Code, §§ 163, 164.) Respondent Andrew Wieling, Jr., executor of the estate of Andrew, contends that the property in Andrew’s name became his separate property by virtue of an oral agreement between him and Matilda. It is therefore necessary to determine whether the evidence relating to the alleged oral agreement sustains the trial court’s finding that the seven parcels in Andrew’s name were his separate property.

Evidence of the agreement was presented by respondent, who testified that in 1925, when Matilda took title in her name to the tenth parcel of property, Andrew asked her, “Why wasn’t it good enough to keep all of it in the community?” She said, “I am going to have half of it in my name and half in your name, and we each have our own property, and there won’t be any trouble about it.” Respondent further testified: “My mother [Matilda] was going to have half in her name, and my father [Andrew] was going to have half in his name, and she was going to build up until she got that much. . . . That plan was followed out right to a T’.” At the time the agreement was made there were seven parcels in Andrew’s name and two in Matilda’s name. At that time Matilda took title to a third parcel, and the following year she took title to a fourth parcel. No additional property was acquired by either spouse, and at the time of their deaths in 1947 the appraised value of the property in Andrew’s name was approximately twice that of the property in Matilda’s name.