Simonton v. Leiter

This is an appeal from the final decree of distribution of the estate of Jane Simonton, deceased. The decedent by her will, after making certain specific bequests, left the residue of her estate to her “heirs at law as provided by the laws of succession of the state of California.” She was the widow of one George W. Simonton, and left no descendants of her own, but there survived her a son and a daughter of her husband by a former marriage and three children of a deceased son of her husband by that marriage. She also left blood relations of her own.

The statute of successions in this state (section 1386, Civil Code) provides in brief (subdivision 8), that when a widow dies intestate and without issue, such of her estate as was formerly either the community property of herself and husband or his separate property shall go to the descendants of her husband, if any there be, and the balance of her estate shall go to her next of kin by blood.

In the present instance, upon the presentation of the petition for distribution, issue was made between the descendants of Mr. Simonton and the next of kin of Mrs. Simonton as to what portion of her estate had been formerly community property, and should therefore go to Mr. Simonton’s descendants, and as to what portion was not of this character and should therefore go to Mrs. Simonton’s branch of the family. There was no contention that any portion of the estate had been formerly Mr. Simonton’s separate estate. The probate court proceeded to determine the issue so made, found that a certain portion of the estate had been formerly community property, and that a very considerable portion had not, and decreed distribution accordingly. From this result the descendants of Mr. Simonton, with the exception of his daughter, appeal, claiming that as to certain property found not to have been formerly community property, the finding of the court is not sustained by the evidence.

The property as to which the finding of the probate court is attacked by the appellants falls into • four classes— first, property which stood in Mrs. Simonton’s name at the

[1] As to the first class of property, that in Mrs. Simon-ton ’s name at the time of her husband’s death and which was not inventoried or accounted for as a part of his estate, a complete answer to the appellant’s contention is that the question is now concluded by the settlement of Mrs. Simonton’s account as an executrix of her husband’s will. As one of his personal representatives it was her duty to inventory and account in the administration of his estate for all of Ms property, either common or separate, in her possession or of which she had knowledge. In particular, if the property here in question was common property as is now claimed, it was her duty to inventory and account for it. The appellants, on the other hand, were legatees under Ms will, and the amount of their legacies depended directly' upon the amount of the estate, so that they were directly interested in the executrix including in her inventory and account everything forming part of the estate. Under these circumstances the presentation of Mrs. Simonton’s account as executrix and the petition for its settlement presented as between her and the appellants the question as to what property in her hands was part of the estate, and the settlement of her account of necessity involved a determination of this question. (Estate of Hall, 154 Cal. 527 , [ 98 Pac. 269 ]; Stevens v. Superior Court, 155 Cal. 148 , [ 99 Pac. 512 ].) [2] The order of settlement, when it became final, was as between her and those beneficially interested in the estate conclusive upon her as to the ownership of any property for which she was held accountable. (Estate of Burdick, 112 Cal. 387 , [ 44 Pac. 734 ].) Conversely, it was conclusive

As to the second class of property in dispute, property acquired by Mrs. Simonton from her husband’s estate by way of family allowance as his widow and fees as his executrix, the question is determined by the proper construction of the code section. The material provision of the code (section 1386, subdivision 8) reads: “If the deceased is a widow . . . and leaves no issue, and the estate, or any portion thereof, was common property of such decedent and . . . her deceased spouse, while such spouse was living, such property goes in equal shares to the children of such deceased spouse,” etc. Literally, this would include any property which had once been community property, no matter if it were not such at the time of the husband’s death, as, for example, where the husband had in his lifetime given it to his wife for her separate property. But such a meaning is clearly not what was intended, and it has already been held that it is not the true meaning. (Estate of McCauley, 138 Cal. 546 , [ 71 Pac. 458 ].)

[4] The only rational construction which can be given the provision is that it applies only to community property' received by will or inheritance or retained by virtue of its character as community property. If the husband be the survivor, it applies to. the community property which, as such, he retains without administration. If the wife be the

The correctness of this construction is made doubly evident by the language of the second paragraph of the code subdivision, that which deals with property which was the separate property of the predeceased spouse. There the language is that such property as “came to the decedent (the surviving spouse) by descent, devise, or bequest” from the spouse first dying shall go to the latter’s relatives. This language is specific as to how the property must come to the decedent in order that the provision apply. The equivalent provision in the case of community property would be one limited to property received or retained by the survivor of the community either by will or by inheritance or by virtue of its character as community property. There is a fair presumption that upon this point the provisions with regard to community and separate property were intended to be equivalent, for no reason for a difference exists. Furthermore, to place a broader construction upon the provision in regard to community property than the language of the provision in regard to separate property will permit as to it would be to place the relatives of a predeceased spouse in a more favorable position with regard to community property than with regard to such spouse’s separate property, when, if any distinction were to be made, it would naturally be just the contrary. In this connection it may perhaps be worthy of note that in another respect, that of the matter of division between the two sets of relatives, a distinction is made between separate and community property, and that the distinction, as is natural, is in favor of the relatives of the predeceased spouse as to property which was his or her separate property. The code subdivision provides that if neither spouse leaves descendants, the separate property of the spouse first dying shall go to his or her relatives exclusively, while the community property shall be divided between the relatives of both spouses.

[6] "What has just been said is likewise determinative of the question as to the third class of property in dispute, that which is the proceeds of the homestead set aside to Mrs. Simonton. Admitting the appellant’s contention, which is very doubtful, that the property, when homesteaded, was community property, it was yet impressed with the homestead while both Mrs. Simonton and her husband were alive. It is familiar learning that under these circumstances the property vested upon Mr. Simonton’s death absolutely in Mrs. Simonton as the survivor, and this not by way of inheritance or as in any way a part of her husband’s estate. The order made in the course of the administration of his estate setting the property aside to her was wholly unnecessary-and ineffective. (Hart v. Taber, 161 Cal. 20 , [ 118 Pac. 252 ], and authorities there cited.) Practically the identical question here presented was presented in’ Estate of Beer, 178 Cal. 54 , [ 171 Pac. 1062 ], where it was decided that the relatives of a predeceased spouse were not the heirs of the surviving spouse as to property which had been homesteaded and which came to the surviving spouse by virtue of the homestead. The only difference between it and the present case is that there the homestead was selected by the predeceased spouse out of her own separate estate, while here it was selected out of community property. But the difference is immaterial, since the right of the surviving spouse in the two cases is identical. Our conclusion, therefore, is that the appellants are not entitled to any portion of the proceeds of the homestead property.

[7] As to the fourth class of property, that acquired by Mrs. Simonton after her husband’s death with funds the source of which was not traced, the argument of appellants’ counsel would seem to be that such funds must be presumed to be the proceeds of community property, since, according to their contention, practically all the property she

The claim is also made on behalf of the appellants that the income received during administration from the portion of the estate which was determined by the probate court to be theirs was not distributed to them, but included in the cash distributed to the respondents. Of this claim respondents’ counsel in their brief make what is apparently a complete refutation, and nothing in rebuttal appears in the appellants’ reply brief. Under these circumstances’ we do not feel compelled to inquire ourselves into the correctness of the refutation but will assume it.

Decree affirmed.

Shaw, J., and Lawlor, J., concurred.

Hearing in Bank denied.

All the Justices concurred.