Estate of Freeman

Estate of DOROTHY S. FREEMAN, Deceased. BANK OF AMERICA, as Guardian, etc., Respondent, v. VICTOR L. FREEMAN, Appellant.

COUNSEL

Austin, Austin & Jones for Appellant.

McLaughlin & Casey for Respondent.

OPINION

McCOMB, J.

This is an appeal by Victor L. Freeman from a decree determining heirship pursuant to section 1080 of the Probate Code in connection with the estate of his deceased wife, Dorothy S. Freeman, wherein the court decreed that certain real property standing in the name of deceased was her sole and separate property. It was thereupon decreed that appellant was entitled to succeed to a one-half interest in such property, and that Helen Louise Freeman, the minor child of the appellant and deceased was entitled to succeed to the remaining one half.

[1] The sole question for our determination is:

Was there substantial evidence to sustain the probate court's finding that the real property in question was the separate property of decedent at the time of her death?

This question must be answered in the affirmative. The [115 Cal. App. 2d 828] evidence disclosed that on May 1, 1944, decedent received a deed to the property from one Henry W. Walker as grantor conveying it to her as her separate property. There was also evidence that the consideration for the property was paid with money which appellant had prior to his marriage to decedent and the earnings of appellant and decedent during their married life.

This rule is controlling, and governs the instant case:

Regardless of the source or character of the consideration, property deeded to a wife by an instrument in writing is presumed to be her separate property, and such presumption will support a finding that the property was the separate property of the wife even though there be evidence that the consideration paid for the conveyance was the separate property of the husband or the community property of the husband and wife. Such testimony merely creates a conflict in the evidence for determination of the trier of fact. (Estate of Durham, 108 Cal. App. 2d 148, 150 [1] et seq. [238 P.2d 1057].)

Affirmed.

Moore, P. J., and Fox, J., concurred.