In Re Estate of Bollinger

MELVIN, J.

Emma C. Bollinger, widow of Samuel Pierce Bollinger, appeals from a decree distributing his estate to his three children by a former marriage, who are the legatees and devisees mentioned in his will.

[382]

Appellant contends that the evidence before the probate court was not sufficient to overcome the presumption that all property in the possession of the testator at the time of his death was community property. Conceding that the presumption which appellant invokes does attend the possession of property by either spouse

(Meyer

v.

Kinzer,

12 Cal. 253, [73 Am. Dec. 538] ;

In re Bauer,

79 Cal. 308, [21 Pac. 759]), such presumption is a disputable one

(Freese

v.

Hibernia Sav. and Loan Society,

139 Cal. 394, [73 Pac. 172]), and in the present proceeding the proof was clear and ample that Mrs. Bollinger had no community interest in the property of which her husband was possessed at the time of his death.

The court’s conclusion that all of the property of the estate was testator’s separate property was supported by the testimony of one of his sons, who swore that the real property involved in this dispute was owned by his father prior to the latter’s marriage to Emma C. Bollinger. The son also testified that at the time of his father’s marriage to Emma C. Bollinger the former was worth eighteen or twenty thousand dollars, with the real estate; that all of this property was acquired by the father of the witness before his marriage ; that he did not become insolvent after marriage, and that he kept the property as his own. (At the time of testator’s death the estate was valued at $12,670.80.) The testimony of this surviving son was uncontradicted.

To appellant’s statement that this evidence was hearsay, containing merely conclusions of the witness, and not the best evidence, respondents reply that no such points were made at the hearing, counsel for appellant contenting themselves with the stock objection that the testimony sought was “incompetent, irrelevant and immaterial.” We think this answer is sufficient. The evidence was clearly pertinent to the issue involved, and if objectionable in the form in which it was offered, the ground of objection should have been clearly specified. The mere fact that it was oral did not render it inadmissible.