In Re Kessler

LANGDON, J.

This is an appeal from a decree terminating a joint tenancy. H. J. Horstman and Laura V. Horstman were husband and wife. All real and personal property acquired by them prior to May 19, 1929, was through their earnings after marriage, and hence, in its origin, community property. With certain minor exceptions, however, the ownership in such property was evidenced by deeds, bank accounts, and assignments of promissory notes and certificates of stock to the parties “as joint tenants”, or “as joint tenants, with full rights of survivorship”. H. J. Horstman died intestate May 19, 1929, leaving no father, mother or lineal descendants. Shortly afterwards, on June 24, 1929, Laura Y. Horstman died intestate, leaving no father, mother or lineal descendants. Petitioner is administratrix of the estate of Mrs. Horstman. She applied for and received a decree terminating the joint tenancy interest of the deceased husband, on the theory that the property vested in the wife by right of survivorship upon his death, and that upon her death, her heirs (a sister and a brother) were entitled thereto. The appellants are the next of kin of the deceased husband (two sisters, a nephew and a niece). They contend that the property was community; that upon the death of the husband intestate it vested in the surviving wife under section 1401 of the Civil Code (now section 201 of the Probate Code); but that upon her death, leaving no father, mother or lineal descendants, only one-half should

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have gone to the heirs of the deceased wife, and the other one-half should go to the heirs of the previously deceased husband, by virtue of former section 1386, subdivision 8, of the Civil Code (now section 228 of the Probate Code).

The controlling question is whether the taking and holding of community property by husband and wife as joint tenants changes the character of such property. The contention of appellants that its community character is left unchanged is answered in the ease of

Siberell

v.

Siberell,

214 Cal. 767 [7 Pac. (2d) 1003], wherein this court held that in such a case a true joint tenancy is created in which the interest of each spouse is separate property. (See, also,