Connett v. Church , 26 Cal. App. 2d 83 ( 1938 )

MARKS, J.,

Concurring.—I concur in the foregoing opinion and judgment. In addition to what is said in the main opinion, I wish to stress the case of Estate of Putnam, 219 Cal. 608 [28 Pac. (2d) 27],

In that case Elizabeth D. Putnam inherited property from Timothy Halstead, her first husband. She subsequently married J. P. Putnam. She sold some of the inherited property and invested the proceeds in corporate stock that was issued in the names- of Elizabeth D. Putnam and J. P. Putnam as joint tenants with the right of survivorship. After several years the certificates of stock were assigned in writing by Elizabeth D. Putnam and J. P. Putnam to Elizabeth D. Putnam. New certificates were issued to her and title remained in her until her death. She died intestate.

Arzena Halstead, the daughter of Timothy Halstead, and stepdaughter of Elizabeth D. Putnam, laid claim to the stock under the provisions of section 229 of the Probate Code, claiming that the property from the proceeds of which the stock was purchased came to Elizabeth D. Putnam by descent, devise or bequest from Timothy Halstead, her first husband; that those funds were traceable into the stock which therefore should be returned to the family of the first owner.

In holding against this contention and that the title to the stock did not originate in Timothy Halstead but in the joint tenancy estate, the Supreme Court said:

“The real question in the case has never been precisely decided in this state. We may for the purpose of focusing attention upon the controlling factors phrase it in this way. Did the creation of the joint tenancy and its subsequent termination by the conveyance of the entire estate therein to decedent operate to alter the status of the property or change the origin of the title by which Elizabeth D. Putnam owned the stock at the time of her death? The court below, after reciting the details of the transaction which we have heretofore summarized, found as follows: ‘ . . . That said shares of stock did not, nor did any portion thereof, come to said Elizabeth D. Putnam from her predeceased spouse Timothy Halstead by gift, descent, devise, or bequest, but all thereof came to said Elizabeth D. Putnam by the voluntary act of said J. F. Putnam. ’ The reason and purpose of section 229 of the Probate Code is, in the absence of testamentary disposition, to turn the property back to the family from which it came, rather than to permit it to descend to the wife’s family. In other words, the section was designed to benefit the natural objects of the bounty of the former owner. (Estate of McArthur, 210 Cal. 439 [292 Pac. 469, 72 A. L. R. 1318].) But the section never sought to limit the right of the wife to dispose of it by will or conveyance. For which reasons we find the authorities declaring that property so inherited does not lose its character or status as such by a mere change in form or identity, such, for example, as the exchange of inherited parcel A for parcel B. The latter property acquires the status of that formerly possessed by parcel A. (Estate of Brady, 171 Cal. 1 [151 Pac. 275], and cases there cited.) Thus it follows that if when the stock was originally purchased "and the joint tenancy created, J. F. Putnam conveyed to his wife property in exchange for his joint tenancy interest, the property so conveyed by him would be subject to distribution under section 229. Also, although the creation of the joint tenancy were without valuable consideration moving to Elizabeth D. Putnam, yet she had effectively removed the property from the status it had formerly held. (Estate of Brady, supra.) It is obvious that had the joint tenancy continued until her death, J. F. Putnam would, by reason of his right of survivorship, have owned the property outright. That which is the subject of this contest would have been his, as a matter of right. Hence the reason and purpose of section 229 is not applicable.”

From the decision in the Putnam ease it would seem to follow that the creation of a joint tenancy breaks the continuity of the chain of title to the property of a predeceased spouse which destroys the applicability of section 229 of the Probate Code. If that is true, then the heirs of Richard E. Frary would be entitled to administer his estate because his title to the property came to him by operation of law from the joint tenancy estate and not “by gift, descent, devise or bequest” (see. 229, Probate Code) from his deceased wife.