Pabst v. Shearer

SLOSS, J.

Margaret Pabst died in November, 1911. The plaintiff, Albert Pabst, is her surviving husband. Eliza Shearer, defendant and respondent, is the mother of Margaret

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Pabst. Plaintiff and Mrs. Shearer were the sole heirs of Margaret Pabst, entitled to share equally in any separate estate left by her.

This action was instituted by Albert Pabst to quiet title to four lots of land in the county of Los Angeles. The contention was that these lots constituted community property of himself and his wife Margaret, and that upon her death he succeeded to the entire ownership. The answer of Mrs. Shearer asserted that she was the owner of an undivided one-half interest in the property, which, as she claimed, had been the separate property of Margaret.

The court found that at the timé of Margaret Pabst’s death, she and Albert Pabst were the owners, as tenants in common, of three of the lots, and that the fourth lot was the sole and separate estate of Margaret Pabst. Since the interest of Margaret Pabst passed equally to her husband and her mother, the court concluded that the plaintiff owned a three-fourths interest in the three lots which had been owned by the plaintiff and his wife as tenants in common, and that the plaintiff and Mrs. Shearer each owned an undivided one-half interest in the lot found to have been owned by Mrs. Pabst alone. Judgment was entered accordingly. Plaintiff appeals from the judgment, and from the order denying his motion for a new trial.

The principal point urged on the appeal is that the evidence does not support the findings in so far as they declare that any part of the property was the separate estate • of Margaret Pabst. Albert and Margaret Pabst were married in 1900 in Kansas City, Missouri. They came to California a couple of years later. On January 24, 1906, lot 98 of the Hollywood Park tract was conveyed by the Title Insurance and Trust Company to “Margaret Pabst and Albert Pabst, her husband.” The effect of such deed was, presumptively, to vest the property in the husband and wife as tenants in common. (Civ. Code, sec. 164.) On November 6, 1907, Edward D. Silent, trustee, conveyed to Mrs. Margaret Pabst lot 33, Euclid Crest. On April 30, 1908, the same grantor conveyed to Mrs. Margaret Pabst lot 32 of Euclid Crest. On February 14, 1906, Fred L. Paul and wife conveyed lot 18 of Paul Place to “Margaret Pabst and Albert Pabst, her husband, joint tenants with right of survivorship.” On May 25, 1908, Albert Pabst, the plaintiff, executed a deed describ