Estate of Rattray ( 1939 )

EDMONDS, J., Dissenting.

I cannot agree with the construction placed upon section 228 of the Probate Code by the decision in this case. In my opinion, it is not in harmony with either the letter or the spirit of the law.

As early as 1880 the legislature of California provided that if a widow or widower died intestate leaving no kindred, any portion of his or her estate which was common property of such decedent and a deceased spouse, while such spouse was living, should go to the heirs of the predeceased spouse. (See. 1386, Civ. Code.) Undoubtedly, the legislative purpose of this enactment was to allow the relatives of the one whose death terminated the community to inherit the property accumulated by the spouses rather than to have it es-cheat to the state.

Not until 1903 was this court called upon to determine the meaning of the section. At that time, the appellants in Estate of McCauley, 138 Cal. 546 [71 Pac. 458], contended that if any of the decedent’s cash and real estate was common property at any time before the death of her spouse, it must be distributed as required by the statute. Under that construction community property which Mr. McCauley had given to his wife before his death would pass to his heirs. However, the court adopted “the more reasonable construction”, construing the words “while such spouse was living” to mean “that the common property referred to must be such as remains undisposed of by such spouse at his or her death. ’ ’ The statute cannot mean, said the court, that if that portion of an estate in controversy “happened to be at some time ' common property of such decedent and his or her deceased spouse’, but had, long before the death of such spouse been conveyed by him or her to decedent, that in case of decedent’s intestacy the property would go to the deceased spouse’s heirs”.

This decision definitely and positively established the rule that the statute as then in effect did not include community property which had been the subject of an inter vivos gift. Seventeen years later and after the legislature had amended the code section by adding a rule of succession for any portion of an estate which was separate property of a deceased spouse, while living, “and came to such decedent from such spouse by descent, devise or bequest”, the same question again came before the court and it followed the former case. In construing the provision defining the community property which could be succeeded to under the circumstances mentioned in the statute, it said: “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, when 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 Simonton, 183 Cal. 53, 57 [190 Pac. 442].)

Here is a second positive and definite pronouncement of the court, based upon the reasoning of the former decision. But as another ground for its conclusions, the court considered provisions concerning separate property which were not a part of the statute when the McCauley case was decided. Because, said the court, the legislature provided that separate property which came to the decedent, the surviving spouse, by descent, devise or bequest shall go to the latter’s relatives, “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”.

However, the statute concerning community property was enacted in 1880 and its meaning had been construed at a time when separate property was not included in it and there was, of course, no specification concerning the manner in which a surviving spouse succeeded to separate property. Therefore, the provisions of the statute concerning separate property, added many years after the decision which construed the original statute, could not properly have been referred to for the purpose of ascertaining the legislative intent in regard to community property. In Estate of McCauley, supra, where the statute first came before the court, its interpretation of the words “common property of such decedent, and his or her deceased spouse, while such spouse was living”, was reached upon a consideration of their meaning in the light of the purpose of the statute in which they were used and in consonance with fundamental principles of statutory construction.

The true situation then after the legislature added the provision concerning separate property, was as follows: By judicial construction of the code section, the community property which passed under its provisions was that which was such at the time of the death of the predeceased spouse and did not include any which had been the subject of an inter vivos gift; by its express terms the separate property was that which had come to the decedent by “descent, devise or bequest”.

In 1931, when the Probate Code was adopted, that part of section 1386 of the Civil Code relating to community property became section 228 of the new code; the portion concerning separate property was enacted as the following section. In rewriting the former statute, in addition to some slight textual changes the word “gift” was added to section 229 so that the separate property which may be claimed under it by succession now includes that which came to the decedent by “gift, descent, devise or bequest”. But substantially the same words construed in Estate of McCauley, supra, and Estate of Simonton, supra, have been continued through all the revisions of the section, and in considering the application of section 228 of the Probate Code, the same statute which is now in question, to community property taken in the name of a husband and wife as joint tenants, this court again followed the rule of the earlier decisions. (In re Kessler, 217 Cal. 32 [17 Pac. (2d) 117].) It held that under the joint tenancy the interest of each spouse was separate property and that the wife succeeded to the husband’s separate interest by right of survivorship; hence “upon her death her heirs alone were entitled to share therein”.

In three cases then, dating from 1903, the statute in its different forms has been considered by the Supreme Court and the same construction placed upon it by each decision. Also, they have recently been followed by the District Court of Appeal in Estate of Miller, 23 Cal. App. (2d) 16 [71 Pac. (2d) 1117], wherein it was held that “section 228 of the Probate Code is not applicable to community property which the husband, by gift, has converted into his wife’s separate property”.

The present decision holds that because the legislature wrote the word “gift” into the statute concerning separate property, this court must write the same word into the law relating to community property. In my judgment this violates all rules of statutory construction and is entirely illogical.

At the time the Probate Code was adopted, the rule stated in the McCauley ease had stood for 28 years as the law of California. There are many reasons why community property which has been the subject of an inter vivos gift should not be included among that which passes under the statute of succession; those reasons do not apply to separate property. This was alluded to in Estate of Simonton, supra, where the court said that to construe the statute concerning community property as including a gift of it would “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”.

The legislation here considered represents the old common law rule as to the descent of ancestral property, which allowed only those of the blood of the first purchaser by whom the land was brought into the family to inherit it. However, at common law and in states which have recognized the doctrine of ancestral estates, a sale or exchange of land extinguishes its ancestral character. Also, the doctrine has not generally been applied to personal property.

To construe section 228 of the Probate Code as including property which has been the subject of an inter vivos gift is directly contrary to the principles upon which the doctrine of community property rests. Since 1927, the law has expressly provided that “the respective interests of the husband and wife in community property during continuance of the marriage relations are present, existing and equal”. (Sec. 161a, Civ. Code.) Community property is that which has been acquired after marriage by either husband or wife or both, except that acquired by gift, bequest, devise, or descent, and is frequently the result of the labors of each. Therefore, in consonance with principles of natural justice, not only is the wife’s interest in the community property recognized as being “present, existing and equal”, but since the early years of the state either husband or wife could make a gift of his or her interest in it to the other, and thereafter it was the separate property of the donee. In other words, a husband in recognition of the efforts of his wife in accumulating their community property, or for any other reason, may make a valid gift of it to. her and from the date of that gift it becomes her separate property. Yet by the present decision, the same property, upon her death, must be considered to be community property.

There is still another reason why, in my opinion, the construction stated by the present decision is incorrect. Although the code commission in its report to the Governor and the legislature submitting the proposed Probate Code called attention to material changes in the law of succession which would follow its enactment, there is no suggestion that it would result in a different construction of the language relating to community property from that laid down in Estate of McCauley, supra. It, therefore, seems reasonable that neither the commission nor the legislature intended to include in the term community property as used in section 228, any which had become the separate property of one of the spouses by gift during the marriage relation.

For these reasons I believe that the decree of distribution should be reversed.

Rehearing denied. Edmonds, J., voted for a rehearing.