Estate of Sill

SPENCE, J.

Respondent, the surviving widow of the deceased, petitioned for an order setting apart a probate homestead claiming that the property was community property. Appellant, a daughter of the deceased by a former marriage, filed her written objections denying that the property was community property. Upon the hearing the, trial court found that the property was community property and ordered that it be set apart as a homestead for the use of respondent and that said property should belong to said respondent. Appellant appeals from said order.

The sole contention made on this appeal is that the evidence was insufficient to support the finding that the property was community property. In our opinion this contention is without merit.

Respondent and the deceased were married in 1909. Each had been married previously and each had children by such former marriage. It appears that both respondent and the deceased had some property at the time of their marriage and that each thereafter kept a separate bank account. The deceased was a police officer and continued as such until 1913, when he was retired. His only income thereafter was from the rentals from his separate property in Oakland and from his police pension. The Santa Clara County property here involved was purchased in 1919 for the sum of $2,800. The deposit on the purchase price was made by the deceased, but the evidence does not clearly show whether this sum advanced as such deposit was community property or the separate property of the deceased. Nevertheless it was stipulated by counsel at the opening of the hearing that the $500 in cash contributed by the deceased on the purchase price was from his separate funds. Respondent agreed to and did contribute $500 in cash from her separate

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funds and the balance of $1800 was raised by placing a mortgage upon the separate property of the deceased in Oakland. Apparently nothing was said regarding the manner of taking title to the property in the preliminary conversations between the deceased and respondent. After the deposit had been made the real estate agent asked the deceased, “Shall I put this in your wife’s name?” Deceased made no answer, but respondent spoke up and said, “It doesn’t make any difference.” As the parties left the real estate office deceased said to respondent, “Don’t feel bad about it, you know it is just as much yours as it will be mine; this is our home.” The property was conveyed to the deceased and was thereafter used as the home of the parties. Deceased paid the taxes and also paid for certain improvements while other improvements were paid for out of the separate funds of respondent. It does not appear that the $500 originally paid by respondent on the purchase price or the sums thereafter paid by respondent for improvements were ever repaid to her or that there was any agreement or understanding between the parties that said sums should ever be repaid.