Harris v. Larter

This is an appeal from a decree of distribution distributing to the respondents, the two brothers and a sister of Maria L. Harris, the entire estate of said decedent who died intestate without issue. The appellant is a brother of Richard T. Harris, the previously deceased husband of Maria L. Harris, who in behalf of himself, other brothers, sisters, nieces, nephews and the wives of deceased brothers, seeks to share in the deceased wife’s estate, appraised at $74,246.98.

Objection to the distribution of all of the property in the estate of Marie L. Harris, hereinafter referred to as decedent, to her relatives, was made by appellant upon the ground that all of the property inventoried in the estate of decedent, with the exception of two small parcels, came to the decedent by an inter vivos gift to her from her husband of his separate property, and that these two parcels came to her by

In order to understand the arguments advanced relative to the applicability of said code sections to the property inventoried in the estate of decedent, Maria L. Harris, a brief resume of the proceedings taken in the probate of the estate of R. T. Harris is necessary. Upon the death intestate and without issue of R. T. Harris in 1911, after twenty-three years of married life with Maria L. Harris, his surviving widow, as administratrix of his estate, returned in the inventory and appraisement of his estate, no personal property and only one parcel of real property valued at $5,000, which had been purchased by him a few days before his death and held in his name as sole grantee, which real property she declared to be community property. Although at the time of his death, R. T. Harris apparently owned an estate of considerable magnitude, consisting of real and personal property, with the exception of the above mentioned real property, none of it was included in the inventory of his estate. The reason for this omission was that for several years the funds of Harris and his wife had been kept in a joint tenancy bank account, and the bulk of the real property purchased by Harris during their married life was taken by him as sole grantee, and by him deeded to his wife, which deeds were recorded by her after his death. One piece of real property, included in the inventory as parcel No. 3, and known as the Home Place, which had been acquired early in their married life, had been deeded to Maria L. Harris as sole grantee by the grantor thereof, and another piece of real property had been taken in the name of R. T. Harris and Maria L Harris as joint tenants. Maria L. Harris, therefore, claimed all of the property with the exception of the $5,000 piece of real property, as her own property, and omitted it from the inventory of his estate. During the course of the probate, the parcel of real property was sold to one Orookshank for $5,000, and the whole

The property involved in this controversy has been listed by appellant into six different categories according to their nature and origin, and for convenience of discussion, we shall use this classification. First kind: Parcels of real property which were purchased by deceased husband, R T. Harris, with funds from the joint bank account of himself and Maria L. Harris, his wife, title to which real property was taken from time to time solely in his name and deeds to which property were executed by R T. Harris in favor of his wife, Maria L. Harris, within from one to two months after each purchase respectively and which deeds were recorded at

The court rejected the claim of appellant to have any part of the estate of Maria L. Harris distributed to relatives of R. T. Harris, specified in sections 228 and 229 of the Probate Code, and made its decree distributing the entire estate of Maria L. Harris in equal shares to the respondents, the two brothers and sister of Maria L. Harris, deceased. In its decree of distribution the court found: “The whole of said estate was the separate property of said Maria L. Harris, deceased, and did not come to her by gift from R. T. Harris, her deceased husband, but said decedent became the owner of the whole of said property by right of survivorship, under an agreement entered into between said decedent and R. T. Harris, her deceased husband, in the early years of their married life, whereby it was agreed that all property which either owned as separate property, or which they had or might acquire during their married life, as community property, should be held in joint tenancy with the right of survivorship to the one surviving. That the said R. T. Harris predeceased said Maria L. Harris, and all his interest in said property so held in joint tenancy under said agreement

We are of the opinion that the probate court was in error in making the finding just quoted, and upon such finding distributing the entire estate of Maria L. Harris to the respondents. It is undisputed that the descent of property is governed by the law in force at the time of the death of the person whose property is to be distributed. (Estate of Putnam, 219 Cal. 608 [ 28 Pac. (2d) 27 ].) The provisions of section 228 and section 229 of the Probate Code, as amended in 1931, therefore govern and control the distribution of the property in the estate of Maria L. Harris, who died July 2, 1933. Prior to the 1931 amendment, whereby the word, “gift” was added to said section 229 of the Probate Code, the relatives of a predeceased spouse were entitled to inherit in the estate of the surviving spouse, such property as had been the separate property of the predeceased spouse and had come to the decedent from such spouse by descent, devise or bequest. In 1931, the code commission, as they said, “in order to make the section logically complete”, added the word, “gift”. The result was that upon the death of the surviving spouse the relatives of a predeceased spouse became entitled to inherit under said provisions such property as had been the separate property of said predeceased spouse and had come to said surviving spouse by inter vivos gift from said predeceased spouse. Said section after amendment read as follows: “If the decedent leave no issue, and the estate or any portion thereof was separate property of a previously predeceased spouse, and came to decedent from such spouse by gift, descent, devise or bequest, such property goes in equal shares to the children of the deceased spouse and to their descendants by right of representation, and if none, then to the parents of the deceased spouse in equal shares, or if either is dead to the survivor, or if both are dead, in equal shares to the brothers and sisters of the deceased spouse and to their descendants by right of representation.” In view of the settled law of this state that the creation of a joint bank account is a gift inter vivos (Bell v. Moloney, 175 Cal. 366 [ 165 Pac. 917 ]; George v. Daly, 83 Cal. App. 684 [ 257 Pac. 171 ]), and that the same rule applies to real estate (Tilden v. Tilden, 81 Cal. App. 535 , 542 [ 254 Pac. 310 ]), we see no escape from the conclusion that the insertion of the term,

Appellant insists that the decision in Estate of Harris, supra, only went so far as to hold that the personal property involved was held in joint tenancy, and did not determine whether or not the property from which said joint tenancy was created was the separate property of R. T. Harris and was an inter vivos gift by R. T. Harris to his wife, and that if he can establish the fact that it was the separate property of R. T. Harris and that the creation of a joint tenancy ownership with his wife constituted a gift by R. T. Harris to her, he and the other relatives of R. T. Harris are entitled to succeed to the whole thereof under section 229 of the Probate Code. However, the court in Estate of Harris, supra, did determine, as shown on the face of its opinion, that both spouses owned separate property and entered into a binding agreement that each would contribute all the property held by them or acquired during marriage in joint tenancy. It cannot be said, we think, that if a husband and wife enter into a mutual binding agreement whereby each contributes his and her separate property to a joint tenancy account, that the converting of said separate property of each of the spouses into a joint tenancy ownership constituted a gift by each to the other of his or her separate property.

Such conclusion does not, however, entirely negative appellant’s right to inherit the real property which was bought by R. T. Harris with the funds from this joint tenancy account (classified as the first kind of property) nor the right of the relatives of R. T. Harris to inherit the proceeds of a sale of similar real property which sale was made by Maria L. Harris, after the death of R. T. Harris. As previously indicated, the real property which was purchased by R. T.

We are not willing to subscribe to the theory, in the absence of proof, that it was the agreement of the cotenants, husband and wife, that the husband in purchasing the real property used only his half interest in the joint tenancy funds and took all the real property as his own separate property. Such a holding would in other cases open wide the door of actual fraud to unscrupulous persons and place the burden of proving the retention of an interest in joint tenancy property upon the passive joint tenant rather than upon the person actively transferring the title. This would be most inequitable and work an undue hardship upon the innocent co-owner.

We are of the opinion that the same result flows from the severance by one spouse of a joint tenancy ownership by the taking of property purchased with the joint tenancy funds in his or her own name, as results when one joint tenant deeds his interest in the property to a stranger. (Delanoy v. Delanoy, supra.) The owners of said property thereafter each own the same as tenants in common. It is true that the title stands in the name of the spouse severing the joint tenancy and taking title to the acquired property in his or her own name. It is elementary, however, that if the consideration for the purchase of any property is furnished by a stranger to the title, the holder of the title, by operation of law, holds the title in trust for the one who furnished the consideration. It may reasonably be concluded, therefore, that in the instant case as one-half of the purchase price of the property consisted of the undivided one-half interest of the wife in the joint tenancy funds, that the husband in taking title to said real property, took a one-half interest in his own right as separate property and a one-half interest as trustee for his wife. By this deed to her he gave to his wife his one-half of said property which, as we have seen, was, prior to the execution of said deed, his separate property. This property which he gave to his wife, his relatives are entitled to have distributed to them by virtue of the

The same applies to the proceeds of the sale of real property which had come to Mrs. Harris under similar circumstances and which had been sold by her in 1919. (Classified as the second kind of property.) Section 229 of the Probate Code would apply to this property only in the event that any portion of it remained in her estate upon her death as during her lifetime she had a perfect right to deal with it as she pleased as it was her own separate property. In view of the fact that it appears that during her lifetime Maria L. Harris gave large sums to churches and other institutions, it may be that the appellants will have considerable difficulty in proving that any portion thereof remained in her estate at the time of her death. Appellant relies strongly upon the case of Stafford v. Martinoni, 192 Cal. 724 [ 221 Pac. 919 ], as placing the burden of making an accounting of such funds upon the administrator of the estate of the decedent. There is language in that case to the effect that since the widow held property during her lifetime in trust “for the benefit of his estate and heirs”, her administrator should be held to such an accounting as would disclose what portion of such property was derived from the community property of herself and husband. It is apparent that in that case the reason the widow was held to hold certain property in trust for the benefit of her husband’s heirs, was that at the time of the death of her husband his relatives were entitled to share to the extent of one-half in any community property owned by the spouses not disposed of by will. Upon the death of her husband, she failed to include in her inventory, property which upon

In view of the fact that we hold that a joint tenancy ownership in real property cannot be created by an oral agreement by reason of the provisions of section 683 of the Civil Code, it follows that as to the third kind of property, being parcel 3 in the inventory and appraisement, which is claimed by appellant to be the separate property of R T. Harris, which property was acquired in the early years of the married life of the spouses, title to which in 1895 was taken and has always continued to remain in the wife, and which never became a part of the joint tenancy transaction, if appellant can establish that it was the separate property of R T. Harris, and was given by him to his wife during their marriage by deed direct to her from the grantor, the relatives of R. T. Harris are entitled to have the whole thereof distributed to them since, as to such parcel of real property, the gift would consist of the entire ownership of such property.

As to the fourth kind of property, it appears from the record that it was acquired through two separate deeds, one dated October 1, 1906, and one dated April 29, 1907. This property was omitted from the inventory of the estate of

The fifth kind of property consisted of a parcel of real property purchased by R. T. Harris with funds from the joint bank account a few days before his death and probated as community property by his wife. Appellant at the probate hearing was not permitted to introduce evidence to prove that this parcel of real property was not in fact sold in the probate proceedings in the estate of R. T. Harris, but was only taken by Crookshank in his own name without the payment of any consideration and three years later was deeded back to Maria L. Harris. Appellant argues that in attempting to introduce such evidence he was not collaterally attacking the probate sale of the real property in the former probate proceedings. The court did not err in excluding this evidence. If the sale was irregular, it should have been attacked in an independent proceeding. If Crookshank did not pay any consideration, the administratrix probably paid the debts of the decedent out of the funds which came to her as survivor of the joint tenancy. This would be her own separate property. In O’Connor v. Flynn, 57 Cal. 293 , in setting aside a sale which was illegal by reason of the fact

As to the sixth kind of property, the probate court, with reference to the real property, found that the decedent, Maria L. Harris, acquired seven parcels of real property subsequent to the date of the death of It. T. Harris, her deceased husband, by purchase with funds from the sale of stock acquired by said decedent by right of survivorship under the joint tenancy agreement entered into between said decedent and R. T. Harris during the early years of their married life. It follows from what we have hereinbefore said that this real property, as well as the personal property held in joint tenancy by R. T. Harris and Maria L. Harris before the death of R. T. Harris, should be distributed to the respondents, the heirs of Maria L. Harris, since section 229 of the Probate Code does not confer upon the relatives of a predeceased spouse the right to inherit in the estate of decedent property which came to said decedent by right of survivorship.

Appellant also attempted to establish the fact that in 1904 an oral agreement was entered into between R. T. Harris and his wife, whereby R. T. Harris agreed to give his wife all property, and she agreed that after she had “taken a good living out of it”," she would divide it equally between his relatives and her relatives. After her death two copies of wills were found which were refused probate, in which she left considerable property to churches and made some provisions for her husband’s relatives as well as her own. Although appellant presents a plausible argument as to why the probate court herein should take jurisdiction to determine the issue of such an oral agreement, this question cannot be litigated in a probate court, but the remedy of a person injured by the violation of a contract to make testamentary provision for another must be pursued in a court of equity. (Fuller v. Nelle, 12 Cal. App. (2d) 576 , 580 [ 55 Pac. (2d) 1248 ]; Estate of Rolls, 193 Cal. 594 , 596 [ 226 Pac. 608 ].) We are of the opinion that such an oral agreement if entered into in 1904 prior to the amendment requiring such an agreement to be in writing would be valid, if it could be

The argument is advanced by respondents that the finding, upon the will contest of the wills of Maria L. Harris, to the effect that these respondents were the sole heirs of Maria L. Harris is res judicata as to the relatives of it. T. Harris claiming herein as heirs of Maria L. Harris, and preclude their sharing in the estate of Maria L. Harris. The verdict in that contest could not affect the right of the relatives of R. T. Harris to take as heirs of Maria L. Harris, for the reason that the material issue in said contest was simply the validity of the two wills offered for probate. The relationship of respondents to Maria L. Harris in the will contest was an incidental matter.

The decree is affirmed as to the fifth and sixth kinds of property described and set forth herein, and is reversed as to the first, second, third and fourth kinds of property mentioned above, with directions to the trial court to take such further proceedings as may be necessary to enable it to properly distribute said four kinds of property to the parties entitled thereto in accordance with the views herein expressed.

Shenk, J., Nourse, J., pro tem., Edmonds, J., Waste, C. J., and Seawell, J., concurred.

Rehearing denied.