In re the Estate of Boody

California Supreme Court Aug 8, 1896 No. Sac. No. 199Published

Before: Fleet

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Holding. The court held that property acquired during marriage is presumed to be community property, and this presumption can only be overcome by clear and convincing evidence tracing the purchase funds to separate property, which the respondents failed to provide.

Issues

Whether real estate acquired during marriage by a spouse is community or separate property when the evidence of pre-existing separate means is speculative.
Whether a mere possessory interest in public land prior to marriage creates an equity that makes subsequently acquired title separate property.

Disposition. reversed

Quotations verified verbatim against the opinion

“The purchase of the lands having been made during marriage, the presumption is that it was community property, and this presumption could be overthrown only by evidence of a clear, certain, and convincing character establishing the contrary”

“It was incumbent upon the parties claiming the land as separate estate to trace clearly the sources of the particular funds with which the lands were purchased to the separate property of Boody”

Synopsis

Husband and Wife—Community Property—Presumption—Burden of Proof.—The presumption is that lands purchased during marriage are community property, and this presumption can be overthrown only by evidence of a clear, certain, and convincing character, establishing the contrary; and the burden of rebutting this presumption rests upon the parties claiming the separate character of the property; and, in the absence of such rebutting proof, the presumption as to the community character of the property is absolute and conclusive.

Id.—Partnership before Marriage—Possessory Right—Patents Ac^x quired after Marriage.—The presumption that lands, the patents to which were applied for and acquired long after marriage, are community property, is not overcome by proof that a possessory right to such lands was held by a partnership before marriage, of which the husband was a member, in the absence of proof that the money paid to obtain the title was clearly and distinctly traceable to the separate property of the husband, not by way of surmises and probabilities, but by ain and connected channels; nor is the naked right of possession by the partners jointly such a right as to give one of the partners an equity to which the subsequently acquired title to part of the land so held could attach.

Id.—Succession to Community Property—Estates of Deceased Persons —Distribution.—At the death of the husband without descendants, the wife is entitled to succeed to three-fourths of the community property, which passes to her heirs at her death, and a decree of distribution of the deceased husband’s estate, awarding only one-half of the property to the heirs of the deceased wife, is erroneous and will be reversed.

Van Fleet, J. This is an appeal from an order of partial distribution, distributing certain parcels of real estate belonging to said estate, and the only question involved is whether the lands were community property, or the separate property of the deceased.

The deceased, Joseph B. Boody, died intestate, in the county of San Joaquin, November 7,1893, without issue, leaving him surviving as his heirs at law Elizabeth Boody, his wife, a sister, and the children of a deceased brother.

Elizabeth Boody, the wife, died intestate November 10, 1893, without issue, leaving as her next of kin and heirs at law a sister, one child of a deceased sister, and the children of certain deceased brothers.

The heirs of Elizabeth' Boody claimed on the distribution that the property in controversy was the community property of Joseph B. and Elizabeth Boody, and that they were entitled of right to have distributed to them three-fourths thereof. The court below denied this claim. It found that all of the real estate involved was the separate property of Joseph B. Boody, and accordingly distributed to the heirs of Elizabeth but one-half thereof. The latter appeal, contending that the finding [684]as to the separate character of the property is not warranted by the evidence.

It appeared without conflict that Joseph B. and Elizabeth Boody were married in 1857, and that the title to all of the real estate in question was acquired long subsequent thereto—the first parcel in March, 1867, and the various other parcels at different dates thereafter; and that all of said lands were acquired by purchase.

The only evidence other than that of the record title bearing upon the circumstances under which any of the land was acquired relates to two pieces, one known as the “ Locust Shade Place,” and the other the “ Swamp Land Tract.” The evidence tends to show that at and prior to the date of his marriage the deceased, Boody, and one T. P. Heath were in possession of these two pieces of land, then public unsurveyed lands, and were farming in partnership, cultivating the land to grain. The extent of their possessory holding does not appear, but they owned some stock and farming implements, and raised sometimes as high as two or three hundred acres of grain. It does not appear what the value of the partnership property was, or whether they were indebted to any extent, or how much, if anything, was realized from their operations, over and above expenses. Some of the witnesses on behalf of respondents testified in a general way that Boody & Heath were regarded in the community as successful farmers, and were reputed to have money to loan, but none of the witnesses knew anything of their affairs except through general current rumor in the neighborhood. The testimony of Albert Drouillard, a witness on behalf of respondents, very fairly illustrates the character of the evidence relied upon to establish the separate character of the property. He testified:

In re the Estate of Boody

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