Beckner v. Kelpsch

PRESTON, J.

This is an appeal by certain legatees from the order settling final account and directing final distribution of the estate of Christine M. Kelpsch, deceased. There is no dispute as to the account itself. The dispute is as to the terms of the decree of distribution. The court held one-half of the estate to be community property and to belong to the husband, Joseph A. Kelpsch, he and Ellen C. Moline,

née

Johnson, being respectively executor and executrix under said will. The effect of this holding is to give appellants as legatees only one-half of what they would otherwise receive from said estate.

The issue presented, therefore, to the court below was as to the character of the property reported in the proceedings in said estate, and this appeal is controlled by the settlement of the single question as to whether sufficient evidence may be found to justify the conclusion of the trial court that the entire property reported by the personal representatives of the deceased was the community property of her

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husband and herself. Or it may be stated in another way: Is there sufficient evidence to warrant the conclusion of the trial court that one-half only of the property so reported belonged to said decedent, the other half being the property of the husband?

It may be said here that the only witnesses who testified upon this subject were the husband and the executrix, who was extremely favorable to his claims. But since counsel is so earnest in his presentation of the matter, some of the pertinent facts shown will be recited.

For about twenty-seven years next prior to her death the decedent and Joseph A. Kelpsch were wife and husband and except during the last four or five years of her life they resided in Chicago. Decedent was about ten years older than her spouse. She had been a dressmaker. About the time of their marriage he became an architect and builder. At that time she had six hundred dollars and he four hundred dollars. They bought a city lot in Chicago and in about six months he had erected a dwelling thereon in which they lived for about two years, when the property was sold. This process of buying, building, and selling in said city occurred three or four times, always on a profitable basis, until, when they removed to California they had outstanding on property formerly owned and improved by them several mortgages securing sums of money aggregating several thousand dollars. The deeds and mortgages, the husband states, were all in their joint names. The deeds were not introduced in evidence and appellants strenuously objected to secondary evidence on this point but enough appears to warrant the court in concluding that such was the fact.