Stephenson v. Brand

California Court of Appeal Apr 13, 1932 No. Docket No. 8405.Published

Before: Tuttle

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Holding. The court held that the trial court's finding that the husband did not intend to make a gift of community property to his wife is conclusive on appeal, even if the husband's testimony was impeached by prior inconsistent statements.

Issues

Whether the presumption that property acquired by a married woman and her husband is held as tenants in common was sufficiently controverted by the husband's testimony.
Whether an appellate court may reweigh the credibility of a witness whose testimony was impeached by prior inconsistent statements.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Whether or not it is so controverted is a question of fact for the trial court, and the conclusion of that tribunal is conclusive upon an appellate court, unless it is manifestly without sufficient support in the evidence.”

TUTTLE, J.,

pro

tem.

This is an action brought to quiet title

to real

property, and the appeal is prosecuted from a judgment in favor of plaintiff.

Plaintiff is the surviving husband of Lucy C. Stephenson, deceased. During the married life of said parties a parcel of real property in San Francisco was conveyed to both of said parties, and stood in their names upon the records. It is admitted that said property was purchased with community funds. Respondent contends that upon the death of his wife the title to said property vested absolutely in him. Appellant, who is the only child of Lucy C. Stephenson by a former marriage, claims that the title vested in the parties as tenants in common, and that she has an interest therein as the sole heir of her mother, who died intestate.

[545]

Section 164 of the Civil Code provides that property “if acquired by such married woman and her husband, or by her and any other person, the presumption is that she takes the part acquired by her, as tenant in common, unless a different intention is expressed in the instrument”. This presumption is disputable in a case of this character (5 Cal. Jur., p. 321, and cases cited), and any competent evidence, oral or otherwise, touching the manner whereby the property was acquired is admissible.

(Killian

Killian,

10 Cal. App. 312 [101 Pac. 806].) It is only where the presumption is not controverted that the court is bound to follow it. Whether or not it is so controverted is a question of fact for the trial court, and the conclusion of that tribunal is conclusive upon an appellate court, unless it is manifestly without sufficient support in the evidence. It being admitted that the property was purchased with community funds, it was necessary, in order to make any of the property the separate property of the wife, that it should have been given to her by her husband. The intent to make it her separate property is a material factor in the case, and the husband may testify as to his intent when the property was acquired.

Stephenson v. Brand

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TUTTLE, J.,

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