Fellows v. Fellows

WARD, J.,

pro tem.

This matter came on for hearing in the Superior Court of Santa Clara County, upon the petition of Laura E. Fellows, administratrix of the estate of Edmund L. Fellows, deceased, praying for a decree of the court distributing the entire estate to herself as surviving wife of the deceased, claiming that all of the said estate constituted community property. Upon the contest to said petition filed on the part of appellants, the claim was made that a substantial portion of the estate consisted of property owned by the deceased at the time of his marriage, and the rents, issues and profits thereof, thus con

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stituting separate estate, and that contestants were entitled to a distributive share thereof. The court concluded that the entire estate constituted community property of deceased and his surviving wife, Laura E. Fellows, and that she was entitled to have all of it distributed to her. A decree of distribution was entered accordingly and it is from this decree that the appeal isotaken.

Mr. and Mrs. Fellows were married on the eleventh day of July, 1900. Fellows died July 7, 1927. At the time of his death he left estate of the value of over $400,000, as shown by the inventory. At the time of his marriage he owned certain livestock, tools, implements, cash in bank to the extent of $1311.84, a leasehold interest in certain orchards and ranches and a small acreage which he subsequently deeded to his wife, and which is not part of this estate. After marriage he came into possession by devise or succession from relatives of cash in four amounts, aggregating $1290.92.

. In the absence of evidence to the contrary it must be assumed that the horses were lost by death and that the tools, implements, etc., were discarded at some period during the twenty-seven years of married life, as useless. Rough memoranda of various sales of stock, fruit, etc., were kept, but not one of the items comprising the $1290.92 can be traced to a bank or business venture involving either separate or community property. The cash on hand dwindled from $1311.84 to $799.51 some eight months after marriage. The leases expired shortly after marriage and subsequently were renewed, though Fellows continued in possession during the period between expiration and renewal. Appellants contend that the leases having been held by the deceased at the date of his marriage in July, 1900, constituted separate property at that time and that the income from the date of marriage to the dates of the execution of renewals was not community property and that all incomes from the operation of these various leases constituted separate estate at the time of his death. It is a well-settled rule that property partly acquired through separate and partly through community funds continues to maintain such classification in proportion to the separate and community property invested. If the property is so commingled that it is impossible to determine one from