Prichard v. Prichard

203 P. 432, 55 Cal. App. 412, 1921 Cal. App. LEXIS 17

• Court: California Court of Appeal
• Decided: November 29, 1921
• Docket: Civ. No. 3762.
• Status: Published

Opinion

JAMES, J.

Appeal by the plaintiff from a judgment denying to her the relief prayed for in her amended complaint. That complaint, in so far as its contents are material to questions here presented, sets forth causes of action to quiet title to a parcel of real property located in the county of San Bernardino, and also to declare a trust against the same property as against the defendants, who were heirs of and distributees under a will made by Joseph G. Prichard, deceased. The evidence offered was in- support of the alleged cause of action asserting the right to have a trust declared. The contention here made is that the trial court’s findings are not supported and that the evidence presented entitled the plaintiff to a judgment.

The plaintiff in the year 1911 was the wife of Joseph G. Prichard. The couple resided, during the most of their married life, at Omaha, where they acquired a small tract of land. This land was the property of the marital com munity. The husband in October, 1910, came to the city of Los Angeles to visit his brothers,' who are named as defendants herein. The wife remained at Omaha to dispose of the land. After having found a purchaser for the same and having collected the proceeds, she came to Los Angeles in April, 1911. The amount of money which remained in her hands, resulting from the sale of the property in Omaha, after paying debts owing by herself and husband there, was about the sum of three thousand two hundred dollars. It appeared that she resided with her husband in Los Angeles for a few months and then left him and went to reside with a sister, who also lived in the city named. In October, 1913, she brought an action for divorce against her husband, which was not contested, and an interlocutory decree was entered on the second day of December, 1913. The complaint in the action for divorce contained this allegation: “That there are no children the issue of said marriage and no community property to be settled or disposed of by this action.” On the eighth of September, 1914, Joseph G. Prichard died, leaving a will which devised to these defendants the real property mentioned in the complaint in this action. Probate proceedings were duly had and decree of distribution was entered on the tenth day of April, 1917. This action was commenced on March 23, 1920, almost three years after the property and estate of Joseph G. Prichard had been so distributed. Plaintiff in her testimony admitted that she was informed about a month after the death of her husband that that event had occurred, but claimed that she had had no information of the pendency of the probate proceedings until August, 1919. [1] She based her right to have the trust declared as to the property referred to upon the claim that such property was the community property of herself and husband and that one-half of it should have been awarded to her. The court found that there had been a settlement of all property interests between the husband and wife prior to the divorce proceedings being had. There is abundant evidence in the record to sustain this finding and the case need be given no further consideration than to call attention to some of the facts and circumstances which that evidence presents. It was admitted by both parties that the husband used such money as he received from the sale of the Omaha property in purchasing the land described in plaintiff’s complaint. While the plaintiff testified that after coming to Los Angeles she handed over to her husband the net proceeds of that sale, it appears in contradiction of such testimony that she in her own handwriting rendered a statement,' which was found among the effects of her husband, showing a calculation of various matters, including the amount received from the Omaha property and a dividing of that amount into two equal parts. It was also shown by the testimony of several witnesses that after leaving her husband she stated that they had settled their property matters; that she had given him one-hálf of the‘proceeds from the sale of the Omaha property and had invested money of her half, received from the same source, by loaning the same in Omaha. She stated further to some of these witnesses that she had given “Joe” his half and kept her own and that they were through “for good and always.” Very significant also is the allegation in her divorce complaint that there was no community property requiring an order of court affecting the same. When plaintiff was asked the question, during the talcing of her deposition, why community property had not been adjusted in the divorce action, the only reply she had to make thereto was that she did not know. It was shown clearly that plaintiff was a woman of mature years, of considerable mental keenness, and of long business experience. That she did not overlook any matter which would result in benefit to her, we can very safely assume from all the evidence as the record expresses it. The bringing of this action may be considered as added evidence of her industry in that direction. Respondents point to the fact that probate proceedings were allowed to progress to distribution of the estate without protest made by this plaintiff, and that in consequence she would be debarred from asserting any claim to property distributed. So well satisfied are we with the court’s determination of the ease upon the evidence that we feel it unnecessary to extend this opinion to the discussion of any further propositions. That evidence supported fully the determination of the trial judge that there had been a settlement of all property interests and that none of the property brought into the estate was of a community character.

The judgment is affirmed.

Conrey, P. J., and Shaw, J., concurred.