Carle v. Heller

One Charles Heller died intestate, leaving surviving him a daughter, the plaintiff herein, and a widow and two sons, the defendants. The widow was appointed administratrix of his estate and the same, as inventoried, was in due course settled and distributed in accordance with the orders of court. Thereafter plaintiff filed this complaint, alleging that her mother, as such administratrix, had neglected and failed to account for certain property owned by deceased at the time of his death. This property, all of which defendant Louise Heller claims as her separate estate, consisted of $1-2,000 -cash in bank, household furniture of the alleged value of $1,000, and an undivided one-half interest in

While the record discloses upward of fifty specifications of error based upon insufficiency of evidence, the only one necessary to consider in deciding the question involved is the finding that the property described in the complaint did not belong to the estate of Charles Heller, deceased, but was the separate estate of defendant Louise Heller. If this finding is supported by the evidence, other specifications of error based upon like want of evidence, and which are not discussed by appellant, are rendered harmless.

The evidence tends to establish the folio-wing facts: Charles Heller and Louise Heller were married in Prance in the year 1870, emigrating therefrom to Ohio, from which state they removed to California in 1896, bringing with them $6,000, the proceeds of the sale of real estate purchased in the name of the wife, out of the joint earnings of husband and wife. At the time of their removal certain Ohio real estate standing in the name of Louise Heller was by her deeded to plaintiff, then married and living in Ohio. The $6,000 brought with them to California was deposited in bank to the credit of Louise Heller. A piece of property located on San Julian street, in the city of Los Angeles, and' consisting of a lot upon which there were two storerooms, over which were rooms used as a lodging-house, was purchased for $8,500, the title thereto being placed in the name of defendant Louise Heller, who paid thereon the $6,000 which she had in bank, and she and her husband jointly gave their note and mortgage for the balance of the purchase price. This property, it appears, increased rapidly in value. Later, at the request of Charles Heller, the daughter, plaintiff herein, conveyed to him the Ohio property which her mother, Louise Heller, had deeded to her, and which property Charles Heller conveyed to his wife. Louise Heller sold this property for $1,200, which sum she gave to Charles Heller with which to purchase, in his own name, a small piece of- property in the rear of the lodging-

Counsel for appellant devotes much of his argument in support of the proposition that the property accumulated by the Hellers in Ohio was, under the laws of that state, the separate property of the husband. In so far as the decision of this ease is affected by the question, such fact may be conceded. Section 164, Civil Code, provides that, “whenever any property is conveyed to a married woman by an instrument in writing, the presumption is that the title is thereby vested in her as her separate property.” This presumption is indulged in whether the purchase money be the separate funds of the husband, or funds belonging to the marital relation. Funds

The mere fact of depositing the proceeds of a subsequent sale of the property in bank to the account of Charles Heller or Louise Heller” in itself constituted no evidence tending to disprove the presumption that the husband gave to the wife the property from the sale of which such proceeds were derived. Neither does such fact, standing alone, show that the wife intended to give to the husband any part of her interest in such fund. (Denigan v. Hibernia etc. Society, 127 Cal. 137 , [ 59 Pac. 389 ]; Freese v. Hibernia etc. Society, 139 Cal. 392 , [ 73 Pac. 172 ].) Concededly, the husband owned a part of the deposit derived from the sale of his own lot, and as to which sum he was entitled to have it paid out on his order. The record discloses no act of either husband or wife with reference to this deposit which tends to prove that the wife

Of the purchase price of the San Julian street property, $2,500 thereof was evidenced by a note and mortgage, in the execution of which Charles Heller joined with his wife. Upon this fact appellant insists that an interest equivalent to the amount of said note and mortgage was community property. This contention is based upon Loring v. Stuart, 79 Cal. 202 , [ 21 Pac. 651 ], and Schuyler v. Broughton, 70 Cal. 285 , [ 11 Pac. 719 ]. In the latter case it was decided that real property purchased by a married woman in her own name and paid for in part with her separate funds and in part with money borrowed by her for that purpose is in part the separate property of the wife and in part community property. In the case at bar, it appears that the husband at the time of the execution of the mortgage owned, in his own name, no property whatever. The loan was, therefore, made upon the faith of the existing separate estate of the wife. Except a small part thereof paid from the proceeds of the sale, it was paid from the rents, issues and profits of defendant’s separate estate which, like the estate itself, was her separate property. (Diefendorff v. Hopkins, 95 Cal. 343 , [ 28 Pac. 265 , 30 Pac. 549 ]; Walsh v. Walsh, 84 Cal. 101 , [ 23 Pac. 1099 ].) Under these circumstances, the case must be deemed controlled by the later authorities of Flournoy v. Flournoy, 86 Cal. 286 , [ 21 Am. St. Rep. 39 , 24 Pac. 1012 ], and Heney v. Pesoli, 109 Cal. 53 , [ 41 Pac. 819 ] , where it is said: “It is rational to conclude that money borrowed upon the separate real estate of one of the spouses will, in the absence of any showing to the contrary, be treated as the separate property of the party owning such real estate.” Here there is no showing to the contrary. In support of his contention on this point, counsel for appellant cites at great length the opinion of the court of appeal rendered in the Estate of Pepper, 8 Cal. App. Dec. 720. It is but fair to counsel to assume that in thus quoting

It is next insisted that the depositing of the proceeds of the sale of the wife’s separate estate with the proceeds of the sale of the lot standing in the name of the husband, conceded to have been funds of the marital relation, constituted such a commingling of the same as to render it impossible to trace and segregate the separate property from that of the community. We perceive no difficulty in this regard for the reason that, upon any theory adopted, it is apparent that a part of the proceeds of the sale of the wife’s separate estate was, with the wife’s consent, transmuted into community property. The price paid for the property owned by the wife was $8,500. It increased in value rapidly, and several years after it was purchased a small lot in the rear thereof was bought by the husband for $1,700, making a total of $10,200 paid for the two pieces of property. Upon no reasonable hypothesis could the husband’s share in the $26,000, for which the two pieces were sold, have exceeded the proportion which $1,700 bore to $10,200, or one-sixth of the whole, amounting to $4,333, from which, however, must be deducted the mortgage of $500, leaving a balance of $3,833. Add to this the additional sum of $548, which appellant claims Charles Heller had in this deposit, and we have $4,381 to apply on the West Sixth street property purchased for $13,000, paid out of the fund, the title to an undivided one-half interest in which, representing $6,500, was vested in Charles Heller. It thus appears that at his death the $12,000 deposit left standing in the name of Louise Heller, together with $6,500 paid for her half interest in the West Sixth street property, constituted a sum much less than the amount received from the sale of her property.

Appellant lays much stress upon the case of Bekins v. Dieterle, 5 Cal. App. 690 , [ 91 Pac. 173 ], wherein a creditor of Bekins sought to enforce a judgment against property which it was alleged Bekins had conveyed to his wife in fraud

We are unable to perceive any merit in the appeal, and the judgment and order are, therefore, affirmed.

Allen, P. J., and James, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme- court on May 24, 1912.