Estate of Durham

California Court of Appeal

Estate of Durham

238 P.2d 1061, 108 Cal. App. 2d 154, 1951 Cal. App. LEXIS 2021

CourtCalifornia Court of Appeal

DecidedDecember 11, 1951

DocketCiv. 18578

StatusPublished

Cited by7 cases

This text of 238 P.2d 1061 (Estate of Durham) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Estate of Durham, 238 P.2d 1061, 108 Cal. App. 2d 154, 1951 Cal. App. LEXIS 2021 (Cal. Ct. App. 1951).

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Opinion

McCOMB, J.

Appellant Moore appeals from that portion of a decree determining heirship holding that (1) two bank accounts of decedent Virginia Fair Durham were community property, and (2) respondent Durham was entitled to $7,500 for his homestead rights in a parcel of separate property belonging to decedent upon which she had declared a homestead.

*155 Questions: First: Was there substantial evidence to sustain the probate court’s finding that a commercial account and savings account standing in the name of decedent at the time of her death were the community property of decedent and her husband, respondent William G. Durham?

Tes. It is conceded that the money which comprised the two hank accounts was property acquired during the marriage of respondent and decedent. Therefore there was a presumption that it was community property. (Civ. Code, § 164.) Likewise there was testimony that the funds comprising the bank accounts had been earned by respondent. The foregoing presumption and evidence clearly sustains the probate court’s finding that the accounts were community property.

The rule is settled that the credibility of a witness and the weight to be accorded his testimony are questions directed to the trier of fact who may accept all or part of the testimony of any witness it believes to be true or may reject all or any part which it believes to be untrue. (Wright v. Delta Properties, Inc., 79 Cal.App.2d 470, 476 [2] [180 P.2d 57].) Hence testimony which would support a conclusion contrary to that reached by the trier of fact must be disregarded by this court.

Second: Did respondent waive his homestead rights in a parcel of real property which was the separate property of decedent upon which she had declared a homestead?

No. A homestead declared by a wife vests absolutely in her husband upon the death of the wife. (Estate of Beer, 178 Cal. 54, 57 [171 P. 1062]; Williams v. Williams, 170 Cal. 625, 627 [151 P. 10]; Selinger v. Milly, 51 Cal.App.2d 286, 294 [124 P.2d 631].)

In view of this rule there is no merit in appellant’s contention that since the property upon which the homestead had been declared was sold by the executor (respondent) during the course of administration of the estate respondent waived his homestead rights.

Affirmed.

Moore, P. J., concurred.

The petitions for a rehearing were denied December 26, 1951, and January 2, 1952.

Appellant’s and respondent’s petitions for a hearing by the Supreme Court were denied February 7, 1952.

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McCOMB, J.

Appellant Moore appeals from that portion of a decree determining heirship holding that (1) two bank accounts of decedent Virginia Fair Durham were community property, and (2) respondent Durham was entitled to $7,500 for his homestead rights in a parcel of separate property belonging to decedent upon which she had declared a homestead.

*155 Questions: First: Was there substantial evidence to sustain the probate court’s finding that a commercial account and savings account standing in the name of decedent at the time of her death were the community property of decedent and her husband, respondent William G. Durham?

Tes. It is conceded that the money which comprised the two hank accounts was property acquired during the marriage of respondent and decedent. Therefore there was a presumption that it was community property. (Civ. Code, § 164.) Likewise there was testimony that the funds comprising the bank accounts had been earned by respondent. The foregoing presumption and evidence clearly sustains the probate court’s finding that the accounts were community property.

The rule is settled that the credibility of a witness and the weight to be accorded his testimony are questions directed to the trier of fact who may accept all or part of the testimony of any witness it believes to be true or may reject all or any part which it believes to be untrue. (Wright v. Delta Properties, Inc., 79 Cal.App.2d 470, 476 [2] [180 P.2d 57].) Hence testimony which would support a conclusion contrary to that reached by the trier of fact must be disregarded by this court.

Second: Did respondent waive his homestead rights in a parcel of real property which was the separate property of decedent upon which she had declared a homestead?

No. A homestead declared by a wife vests absolutely in her husband upon the death of the wife. (Estate of Beer, 178 Cal. 54, 57 [171 P. 1062]; Williams v. Williams, 170 Cal. 625, 627 [151 P. 10]; Selinger v. Milly, 51 Cal.App.2d 286, 294 [124 P.2d 631].)

In view of this rule there is no merit in appellant’s contention that since the property upon which the homestead had been declared was sold by the executor (respondent) during the course of administration of the estate respondent waived his homestead rights.

Affirmed.

Moore, P. J., concurred.

The petitions for a rehearing were denied December 26, 1951, and January 2, 1952.

Appellant’s and respondent’s petitions for a hearing by the Supreme Court were denied February 7, 1952.

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238 P.2d 1061, 108 Cal. App. 2d 154, 1951 Cal. App. LEXIS 2021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-durham-calctapp-1951.

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