Wooten v. Wooten

Appellant, the surviving widow of William L. Wooten, deceased, petitioned the superior court for a decree determining the interests in the estate of said deceased and for an order to set apart as a homestead certain real property upon which appellant had filed a declaration of homestead during the lifetime of said decedent. The court decreed that one-third of the real property and cash in said estate be distributed to appellant on final distribution of the estate, together with certain household furniture and furnishings; that a particular house “and the land on which the same is situated and necessarily used in connection therewith” be “carved out” of certain described real property and set apart to appellant as the surviving widow for and during the term of her life as a probate homestead. Two-thirds of the real property, subject to the probate homestead, and two-thirds of the cash was ordered to be distributed to the children of decedent upon final distribution of the estate. It is from this judgment that appellant has appealed.

The court found that all the real property and cash de

Appellant contends that the evidence shows an oral agreement to convert the separate property of William H. Wooten into the community property of William H. Wooten and appellant, as his wife; that in any event, if a finding that the property was not community property is proper, then appellant should be given a lien on the property of the estate for advancements from community funds and appellant’s private funds in the payment of bills for repairs, additions to properties, taxes and encumbrances during the married life.,of decedent and appellant. The court expressly found that said property had not been converted into community property, by mutual agreement or otherwise; and that while the property had been improved and repaired during decedent’s marriage to appellant, the costs of any improvements, repairs or liens upon said property were paid from the separate property of decedent.

The real property in question was acquired by William L. Wooten prior to his marriage to appellant, and stood in his name both at the time of his marriage to appellant and at his death. Testimony of conversations between Mr. Wooten, the decedent, and appellant, which might tend to indicate an intention to convert the property into community property, was given only by appellant. This testimony was controverted by that of respondent. Numerous checks offered in evidence by appellant with regard to payment of taxes were drawn upon a joint bank account of appellant and her husband, the deceased. Bespondent testified that the taxes on decedent’s separate properties were paid from rentals received from the said properties.

As to an agreement to convert decedent’s separate property into community property, appellant cites Marvin v. Marvin, 46 Cal.App.2d 551 [ 116 P.2d 151 ], In that ease there was strong evidence of an executed oral agreement, where funds for the purchase and for payment of taxes and assessments were paid out of community funds. Moreover, in that case the wife’s testimony on these matters was corroborated. It is also there stated (at p. 557): “Whether or not these statements and the conduct of the deceased during this long period indicated an intent on his part to transmute any separate interest he may have had in this property into a community interest with his wife was, at least, a question of fact for the trial court.” The other authorities cited by appellant upon this point are all consistent with the rule thus enunciated; and the evidence in the present case is sufficient to support the finding that there was no agreement to transmute the separate property interest of Mr. Wooten into a community interest with his wife. In fact, the evidence in the record might well be held insufficient to support a finding that there was such an agreement.

Appellant contends that if this court should hold that the real property in question was not transmuted into community property, then the court should order reimbursement to the widow of all community funds and her separate

Although there is no specific finding as to the house which was moved upon the husband’s separate property, there is at least a basis for an implied finding that this house became a part of the separate estate and that appellant intended this result. It is to be noted that this house was moved upon Mr. Wooten’s separate property after the sale of the property on which the house had originally stood; and the funds received from the sale of the latter property were deposited in the joint bank account of appellant and decedent. Moreover, it is also plain that any funds or any property here involved, which might be held to be community property or the separate property of appellant, were applied to the separate estate of Mr. Wooten with the consent of appellant. The rule allowing reimbursement to the wife of community funds expended upon the separate estate of the husband appears to apply only in cases where such application or expenditure has been made without the wife’s consent. This is plainly indicated by the language in Wheeland v. Rodgers, 20 Cal.2d 218 [ 124 P.2d 816 ], in Dunn v. Mullan, 211 Cal. 583 , 590 [ 296 P. 604 ], and in Provost v. Provost, 102 Cal.App. 775 [ 283 P. 842 ]. It has in effect been stated that the basis for allowing such reimbursement is to prevent a

The bank account, the funds from which appellant contends are separate property, was an account standing in decedent’s name at the time of his death. The funds therein had originally been in an account opened by decedent and appellant in the form of a joint account, as “William L. or Jessie Hamblin Wooten.” Later, the word “or” was crossed out and the word “and” inserted in the title of the account in the bank book. Thereafter the funds in the account were divided equally between decedent and appellant, one-half being placed in the name of each party. The trial court found that the funds in question were the separate property of decedent. Under the circumstances, the question of the character of the funds standing in decedent’s bank account at his death was one of fact (see Wheeland v. Rodgers, supra, at p. 222); and there is sufficient evidence to support the finding of the court.

The house set apart by the court as a probate homestead is one of three houses standing on a lot 66 feet wide by three hundred feet deep. This house is numbered 1928, and has a frontage of 27 feet 6 inches, facing on the street. There is a second house, numbered 1926, beside the first mentioned house, with a driveway between the two houses. A third house, numbered 1928%, is in the rear of the first house; and there is a garage that extends between the first and third houses. Number 1928 was occupied by appellant and Mr. Wooten as their home. This house is a little larger than the other two; but none of them are large. As to the use of the surrounding grounds, appellant testified that, “Everybody on the place uses everything, clothes lines, and so forth.” The other two houses were used as rental units. The lot also contains a chicken house and some fruit trees. Upon sufficient evidence, as above mentioned, the court found this property to be the separate property of decedent. In 1938 appellant had recorded a declaration of homestead upon the entire

Appellant contends that the judgment setting aside the probate homestead is uncertain and does not define the rights of the parties, and will lead to untold litigation if allowed to stand. As already mentioned, the court decreed that the particular house known as 1928 El Segundo Boulevard, “and the land on which the same is situated and necessarily used in connection therewith, carved out of” the described premises, be set apart as a probate homestead. Upon the facts presented, the decree of the court is too uncertain to permit a definite determination of the extent of the probate homestead, and hence casts doubt upon the title to the entire property involved. Whether it is possible to carve out a probate homestead from the parcel of land in question, without setting apart the entire parcel as a homestead, need not here be determined. That portion of the judgment which purports to set apart a probate homestead to appellant must be reversed upon the grounds of uncertainty in the terms thereof.

That portion of the judgment which determines the respective interests in the estate here involved is affirmed; but that portion thereof which purports to set apart to appellant a probate homestead is reversed, and the cause is remanded for a retrial of the issues involving the probate homestead.

York, P. J., and White, J., concurred.

A petition for a rehearing was denied May 17, 1944, and appellant’s petition for a hearing by the Supreme Court was dismissed on June 15, 1944, pursuant to stipulation.