Cory v. Kirby

Opinion

DUNN, J. Afton Kirby appeals from an order fixing inheritance tax, and from an order denying her objections to report of inheritance tax referee,1 made in the matter of the estate of her deceased husband, Josh Kirby. Only the order fixing inheritance tax is appealable. (Prob. Code, § 1240; Estate of Johnston (1970) 12 Cal.App.3d 855, 858 [91 Cal.Rptr. 116].) Accordingly, the purported appeal from the order denying objections to report of inheritance tax referee is dismissed.

[290]The record shows: in 1965 Josh and Afton were married; in 1966 Josh was injured in an accident and filed a personal injury action; in December 1968 the action was tried and judgment for $460,000 was entered in favor of Josh; pending a possible appeal from the judgment, he settled his claim for $230,000, which sum was paid to him on January 17, 1969; Josh died in August 1970; his will (admitted to probate) bequeathed the residue of his estate to Afton, his surviving spouse; the report of an inheritance tax referee determined that the residue of the estate ($93,930.85) and an inter vivos gift ($57,350) to Afton from Josh were subject to an inheritance tax of $5,942.38 because the residue and the gift were part of the $230,000 paid to Josh in settlement of his personal injury claim, and such sum was his separate property.

Afton filed objections to the report on the ground that the personal injury settlement received by Josh was community property. The trial court denied the objections, and signed and filed an order fixing the tax in accordance with the report.

Prior to 1957, both the cause of action and the damages recovered for personal injuries to either husband or wife during the existence of the marriage were community property. (Zaragosa v. Craven (1949) 33 Cal.2d 315, 320-321 [202 P.2d 73, 6 A.L.R.2d 461]; Frost v. Mighetto (1937) 22 Cal.App.2d 612, 614 [71 P.2d 932]; 7 Witkin, Summary of Cal. Law (8th ed.) Community Property, § 13, p. 5104.) To eliminate the imputation of contributory negligence between husband and wife which resulted under this rule (see Zaragosa v. Craven, supra, 33 Cal.2d at p. 317; Basler v. Sacramento Gas & Elec. Co. (1910) 158 Cal. 514, 518 [111 P. 530]; Giorgetti v. Wollaston (1927) 83 Cal.App. 358, 362 [257 P. 109]) the Legislature in 1957 enacted Civil Code section 163.5,2 which provided that all damages for personal injuries were the separate property of the injured spouse. Although this statute solved the imputed negligence problem, it proved unsatisfactory in other respects. (See 7 Witkin, Summary of Cal. Law (8th ed.) Community Property, § 14, pp. 5106-5107.) Accordingly, in 1966 the Law Revision Commission recommended that personal injury damages again be classified as community . property, with additional legislation to eliminate the problem of imputed contributory negligence. (See 8 Cal. Law Revision Com. Rep., p. 407 et seq.) Accepting the recommendation, the Legislature in 1968 amended Civil Code section 163.5 to restore the community property status of