Estate of Gold

SHAW, J.

This was a proceeding under section 1664 of the Code of Civil Procedure to determine the heirship of the estate of Henry L. Gold, deceased, and the several rights and interests therein of the persons claiming to inherit the same.

The appeal was from the entire judgment, hut in pursuance of a stipulation of the parties, the appeal was dismissed as to that part of the judgment determining heirship and adjudging certain of the property to he the separate property of Gold. The sole question presented is whether or not the decision of the court below is correct, in so far as it declared that certain property belonging to the estate of said Henry L. Gold, deceased, was community property of Gold and his wife, Prances S. Gold. Of this property the appellants concede that eleven parcels were community property. The controversy is confined to the remaining parcels.

Henry L. Gold died intestate on January 17, 1908. It appears that in January, 1898, Gold formed a partnership with one Sullivan, to carry on the business of conducting a saloon and gambling. The property in controversy was all derived from the profits of this business. The portion thereof resulting from the profits of the saloon, as distinguished from the profits of gambling, is comparatively insignificant and we find it unnecessary to consider the question with respect to the

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saloon profits alone. Henry L. Gold married Prances S. Gold on May 16, 1903. The main inquiry relates to the question whether this property declared to be community property, was acquired by Henry L. Gold before, or after, the said marriage. Gold and his wife had no children, and he left no issue. The plaintiffs are his collateral relations, entitled to inherit from him as such.

The plaintiffs claim that Gold’s share of the partnership profits made after the marriage became Gold’s separate property by reason of the fact that the partnership was formed prior to the marriage. Where a business has been carried on and capital has been invested therein before marriage, the entire profits therefrom, after marriage, are not necessarily separate property of the husband. The rules regarding the character of such property were considered in

Pereira