Painter v. Painter

California Supreme Court Jul 20, 1896 No. S. F. No. 100Published

Before: McFarland

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Holding. The court affirmed the judgment for defendants, holding that the appeal was untimely regarding evidentiary review and that the trial court correctly determined the testator could not bequeath more than his half-interest in community property and that an after-born child was entitled to an intestate share.

Issues

Whether the appeal was timely filed to permit review of the evidence under Code of Civil Procedure section 939.
Whether a testator may bequeath more than his half-interest in community property.
Whether an after-born child not mentioned in a will is entitled to an intestate share of the estate.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Of course, as a legal proposition, a husband cannot, as against the wife, dispose of more than one-half of the community property”

Synopsis

Appeal from Jüdqment—Review of Evidence—Lapse of Time—Rendition of Judgment.—Where an appeal from the judgment is taken more than sixty days after rendition of the judgment, which takes place, within the meaning of section 939 of the Code of Civil Procedure, when the findings are filed, and judgment is ordered, the evidence . cannot be reviewed upon such appeal; and, where the judgment is not entered in time to allow an appeal therefrom to be taken within sixty days from its rendition, the evidence can be reviewed only upon motion for a new trial.

Will—Devise of Partnership Interest—Community Property—Pretermitted Heir — After-born Child. — A will devising all of the partnership interest of the testator in firm property, exclusive of real estate, to his copartners, the interest of the testator in the partnership being community property, does not carry the wife’s interest therein, neither does it carry the interest therein inherited by an after-born child of the testator, who is pretermitted from the will, not having been provided for nor mentioned therein.

McFarland, J. The deceased, Jerome B. Painter, was a brother of the plaintiff, and also of the defendant Theodore P. Painter. At the time of his death, in ¡February, 1883, the deceased and the defendant Theodore P. Painter were copartners in a firm called “Painter & Co.,” engaged in the business of manufacturing and selling printing presses, type, and other printers’ materials. On March 11, 1864, the deceased made his will; and at that time plaintiff was also a copartner in said firm, but he afterward withdrew from the copartnership. The firm owned a large stock of machinery, type, materials, and fixtures necessary to carry on its business, and also some real property which was worth at the time of the death of the deceased about six thousand six hundred dollars. The first clause of the will is as follows: “1st. I give and bequeath to my brothers, J. Milton Painter and Theodore P. Painter, all my share, right, title and interest of, and in and to, the co-partnership of Painter & Co., the stock thereof, its business, goodwill, and all interests, of whatever nature, connected with them as partners (except real estate), debts due us and moneys out at interest, for their own use and benefit, upon the express condition that they assume all debts standing against the concern, and pay [373]off that certain mortgage on property, S. W. cor. of Washington and Sansome streets”; and the only interests or rights of plaintiff which are involved in this action are those which belong to him as legatee under said first clause of said will. These embrace only his claim to his share of the personal assets of the copartnership. He has no proprietary interest in the real property of the firm, for he is not a partner; and by the will said real property is not devised. It appears that down to the time of the withdrawal of plaintiff from the firm the interest of the deceased in the co-partnership was one-half, and the interest of each of the other two one-fourth; and it does not appear whether or not his interest was increased after said withdrawal.

The averments of the complaint necessary to be noticed are, in brief, these: It is averred that the deceased in his lifetime borrowed, from time to time, large sums of money from said firm and paid and agreed to pay interest thereon; and that at the time of his death, on account of such borrowed money and some other items of account, he was indebted to said firm in the sum of thirty-three thousand five hundred and thirty-four dollars and sixty-two cents. It is further averred that the share of the deceased in the personal assets of said firm are not sufficient to repay his said indebtedness; that the executors and executrix, or some of them, claim that the deceased was not indebted to said firm in any sum of money whatever; that the defendant Theodore P. Painter, as surviving partner, is engaged in liquidating the affairs of said copartnership, and claims that it is necessary for him to sell all of the stock on hand, machinery, type, materials, fixtures, general assets and goodwill of the business in order to repay the said amount due from the deceased to said firm and to settle the accounts of the deceased with the firm, and threatens so to do; and that if he be permitted to do so the legacy to plaintiff will be wholly defeated. It is further averred that plaintiff, as such legatee, is entitled to de

Painter v. Painter

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