In Re Carlin
Before: Shaw
Synopsis
Proceeding to Determine Interest op Husband in Community Property in Name op Deceased Wipe—Contest by Wipe’s Sister— Question op Pact—Review upon Appeal.—In a proceeding taken by a- surviving husband, under section 1723 of the Code of Civil Procedure, to determine his interest in community real estate held in the name of the deceased wife, and bought with community funds, in which Ms claim was contested by a sister of the deceased wife, as being her separate estate, in the interest of the heirs, and the court found and adjudged that the property was community property and was bought in the wife’s name with community funds, and was not given by the husband to the wife, and adjudged that the entire property vested in the surviving husband, it is held upon appeal that whether or not the conveyance was a-gift to the wife was a question of fact to be determined by the trial court, upon the evidence, and its conclusion, if not manifestly without sufficient support, should not be disturbed upon appeal.
Id.—Presumption op Separate Property in Wife—Rule of Evidence —Burden op Proof Sustained.—When property is conveyed to a married woman by an instrument in writing, the presumption is that the title is thereby vested in her as her separate property under section 164 of the Civil Code; but this is a mere rule of evidence fixing the onus proiandi in cases where the question of ownership is in litigation. Neither the wife nor her representative is bound to prove that the conveyance was a gift; but it devolves upon the husband to overcome the presumption by showing that it was not a gift. It is held that such burden was sufficiently sustained by the evidence of the husband that it was the intention to provide a home for both and not to give her the property, which, in the absence .of any inconsistent testimony, is sufficient to support the conclusion of the trial court.
Id..—Policy of Daw—Province of Legislature.—The policy of permitting the presumption arising from a conveyance of real estate purchased with community funds to a married woman to be overthrown after the wife’s death by evidence of an undisclosed intent on the part of the husband that it was not the subject of a gift, may well be questioned. It is the province of the legislature, however, and not of the courts, to determine questions of policy.
SHAW, J.
On February 20, 1912, an opinion was filed herein reversing the judgment and order of the trial court. Thereafter an order was made granting a rehearing.
The proceeding was had and taken pursuant to the provisions of section 1723 of the Code of Civil Procedure to determine the interest of L. C. Carlin, as surviving husband of Aurora Carlin, deceased, in whom the legal title was vested, in a certain tract of land alleged by him to have been the community property of himself and his deceased wife. The claim was contested by a sister of Aurora Carlin (she having neither father, mother nor child surviving), who contended the property was the separate estate of deceased, in and to which the contestant and her brother and sister were entitled to a one-half interest. The court found that the land was the community estate of petitioner and Aurora Carlin, and by its decree adjudged the entire property vested in L. C. Carlin, the surviving husband of deceased.
From this decree, and an order denying contestant’s motion for a new trial, she appeals, claiming the evidence is insufficient to justify the finding of the court.
The land was deeded to the wife, Aurora Carlin, by a third person and the consideration therefor paid from the community funds of husband and wife. Since either spouse may hold the legal title to community property, it follows that the land so acquired during coverture with community funds was, unless made the subject of a gift from L. C. Carlin to his wife, the community estate of the marital relation. As to
[170]
whether or not it was a gift was a question of fact to be determined by the trial court upon the evidence adduced at the trial, and its conclusion, unless manifestly without sufficient support, should not be disturbed by an appellate court. “Whenever any property is conveyed to a married woman by an instrument in writing, the presumption is that the title is thereby vested in her as her separate property.” (Civ. Code, sec. 164.) “But this is a mere rule of evidence fixing the
onus probandi
in cases where the question of ownership is in litigation.”
(Jackson
More from California Court of Appeal
- People v. Hill (1998)
- In Re Autumn H. (1994)
- Nwosu v. Uba (2004)
- In Re Casey D. (1999)
- Santisas v. Goodin (1998)
- Cahill v. San Diego Gas & Electric Co. (2011)
- People v. Rivera (2015)
- People v. Barnett (1998)
- People v. Serrano (2012)
- Benach v. County of Los Angeles (2007)