Gartland v. Gartland

NOURSE, P. J.

Appeals were taken from the portion of a final decree of distribution which found all the estate to be community property, and from the order allowing a claim of respondent against the estate. The appellants are two sisters of the deceased who were beneficiaries under the will.

James Gartland died November 30, 1927, leaving a will which read: “San Francisco, Feb. 23, 1926. This is my last will and testament. All former wills are revoked. I leave and bequeath Five Thousand Dollars ($5000.00) to my sister Mrs. Gertrude McMahon and Five Thousand Dollars ($5000.00) to my sister Miss Catherine Gartland. Both bequests to be paid them at the rate of $25.00 each monthly. I appoint my dear wife, Anna G. Gartland executrix of my estate to serve without bonds—The balance or residue of my estate I bequeath to my dear wife, Anna G. Gartland (signed) James Gartland.” The surviving wife presented a claim for $10,000 for money which she had loaned her husband on February 11, 1926. The probate court allowed the claim for $5,000. The appraised value of the estate available for distribution was about

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$17,000, all of which the court found to be community property. After deducting the amount of the claim and dividing the remainder in half to determine the portion of the estate available for testamentary disposition the court awarded to each of the beneficiaries $2,997.96, disregarding the provision of the will that the legacies should be paid in monthly installments.

The question whether the estate was community or separate property is a simple question of fact. The presumption of law is that it was community. The burden was on the appellants to overcome this presumption by substantial evidence. The probate court found that they had failed to do so and we are in accord with the finding. The Gartlands were married in 1906. The deceased was a stock-broker and at times made considerable money and at other times suffered severe losses. In 1918, by agreement, he and his wife divided the community property by giving Mrs. Gartland a separate credit on the books of" the Gartland firm. Her “share” was about $12,000. From that time the speculations of the parties were treated separately and, until the year 1926, each made separate income tax returns, which at times showed large profits. Mrs. Gartland purchased from her own funds the home in which the family lived and, when her husband’s firm became involved in financial difficulties in 1926, she mortgaged this home and loaned her husband $10,000, which was not repaid.