Woolman v. Hunter

BISHOP, J. pro tern.* Sherlie Edison Woolman, the decedent in this probate proceeding, died, intestate, February 19, 1955. He was a widower at the time of his death, his wife having predeceased him, December 16, 1944. A son of the predeceased wife by a former marriage initiated the particular proceedings now engaging our attention, by filing a petition, under section 1080 of the Probate Code, to have it decreed that he, the petitioner, was entitled to have all the property in the estate distributed to him. He was not entirely successful in his quest, but the probate court found that certain designated items of property had been either the community property of the decedent and his predeceased wife, or purchased from the proceeds of such property, and so should be distributed to the petitioner. This result was displeasing to the brother of the decedent, who, but for the decree, would receive all of the estate, and he appealed. We are reversing the decree because the evidence is insufficient to support an essential finding.

Petitioner’s claim to any portion of the estate of the decedent, who is no blood relation of his, depends upon the provisions of section 228, Probate Code, which, since 1939, has read as follows: “If the decedent leaves neither spouse nor issue, and the estate, or any portion thereof was community property of the decedent and a previously deceased spouse, and belonged or went to the decedent by virtue of its community character on the death of such spouse, or . . . became vested in the decedent on the death of such spouse by right of survivorship in a . . . joint tenancy between such spouse and the decedent . . . such property goes ... to the [child] of the deceased spouse.”

The burden of proving that the property he sought to have distributed to him came within the purview of this section, rested upon the petitioner. (Estate of McGee (1959), 168 Cal.App.2d 670, 674 [336 P.2d 622, 624] ; Estate of Ball (1959), 171 Cal.App.2d 62, 64 [339 P.2d 912, 913] and cases cited.) The rule is clearly stated in Estate of Adams (1955), 132 Cal.App.2d 190, 204 [282 P.2d 190, 199] : “Upon his death intestate the heirs of the wife who, by virtue of section 228, become the statutory heirs of the husband, are entitled [575]under that section in the circumstances there set forth, to one-half of the property that was formerly community property. But the burden is on them to prove what was community property, and to trace it into the estate of the surviving spouse. That burden requires two steps in the proof. First, as already pointed out, the predeceased spouse’s heirs must prove what portion of the property was community property at the time of the death of the predeceased spouse. In making that proof, as already held in this opinion, the presumption is that property acquired or in possession during the marriage was community property. Then the heirs of the predeceased spouse have the burden of tracing the community property into the property found in the estate of the surviving spouse. In meeting this burden such heirs now find the presumptions reversed. Now the presumption is, that the property in the estate of the surviving spouse is the separate property of the surviving spouse, and, under the rule of the cases cited above, the heirs of the predeceased spouse must overcome that presumption by tracing the community property existing at the death of the predeceased spouse into the estate of the surviving spouse. Failing to so trace the community property by overcoming the presumption of separate character, the property in the estate of the surviving spouse must be treated as the separate property of the surviving spouse and distributed to his blood heirs. ’ ’