[L. A. No. 6925. In Bank.-December 20, 1921.]

In the Matter of the Estate of JOHN NICKSON, Deceased. MINNIE L. CLAYTON, Appellant, v. H. L. PERRY, Executor, etc., et al., Respondents.

[1] COMMUNITY PROPERTY-REBUTTAL OF PRESUMPTION-DEGREE OF PROOF.-While the presumption of community property created by section 164 of the Civil Code can only be overcome by clear and satisfactory proof, it is incumbent on the party seeking to rebut the presumption to do no more than to produce such legal evidence as, under all the circumstances of the particular case, would ordinarily produce conviction to an unprejudiced mind.

[2] ID. DETERMINATION OF SUFFICIENCY OF EVIDENCE-QUESTION FOR TRIAL COURT.-Whether or not the evidence offered to overcome the presumption of community property is clear and convincing is a question for the trial court, and its determination upon conflicting evidence is not open to review on appeal.

[3] ID. SEPARATE PROPERTY-SUFFICIENCY OF EVIDENCE.—In this proceeding on final distribution, involving the character of the property of an estate, the evidence is held sufficient to overcome the presumption of community property created by section 164 of the Civil Code and to sustain the decree that the estate was the separate property of the deceased.

APPEAL from a decree of final distribution of the Superior Court of Los Angeles County. Fred H. Taft, Judge. Affirmed.

The facts are stated in the opinion of the court.

W. C. Shelton for Appellant.

R. S. Parker for Respondents.

RICHARDS, J., pro tem.-This appeal is from a decree of final distribution wherein the trial court, over the objection of the appellant, distributed the whole of the estate of the decedent as having been his separate property during his

1. What is community property, note, 126 Am. St. Rep. 99. Whether profits accruing during marriage in connection with property belonging to separate estate of either spouse is community property, note, 31 L. R. A. (N. S.) 1092.

lifetime. Decedent died in Los Angeles County, California, where he had lived since his removal to California from the state of Iowa in or about the year 1894. Prior to his residence in Iowa he had lived in Wisconsin for a number of years where, in the year 1878, he had married Naomi Nickson, who thereafter lived with him as his wife in Wisconsin, in Iowa, and in California up to the time of his death. Both parties to this marriage had been married before and each had children of such prior marriage, Naomi having two daughters, Lillie Watson and Mrs. Minnie L. Clayton, the latter being the contestant and appellant herein. John Nickson had by his prior marriage five sons, J. W. Nickson, T. J. Nickson, C. D. Nickson, Samuel S. Nickson, and Harry S. Nickson. There were no children of this second marriage. Some time prior to his death John Nickson made his last will in which he declared that the whole of his estate was his separate property, which he therein proceeded to dispose of by making certain specific legacies to certain of his said. children and stepchildren. He then devised all of the remainder of his property to his wife, Naomi Nickson, for and during her natural life, with the right to the total net income thereof, and also with right that in the event of such net income not being sufficient for her reasonable care and support, she might use so much of the principal estate as might be necessary for such purpose. Upon her death the remainder of said estate was to be divided among four of his said sons, share and share alike. John Nickson died on December 15, 1917. His said will was offered for probate shortly thereafter, and having been duly admitted to probate the administration of his estate proceeded until the same was ready for distribution in September, 1919, when the executor filed his final account and petition for distribution of said estate, wherein he averred that "the whole of the said estate is separate property of said deceased" and prayed for its distribution according to the terms of the last will of the decedent. In the meantime his widow, Naomi Nickson, had been declared incompetent and her daughter, Mrs. Minnie L. Clayton, had been appointed her guardian; and the latter, on October 8, 1919, appeared on behalf of her said mother and objected to the distribution of said estate as prayed for by said executor, alleging that the whole of the decedent's property and estate was community property of himself and his

said wife, Naomi Nickson, and praying that the same should be distributed one-half to said Naomi Nickson, as her share of the community property, and the balance thereof according to the terms of said last will of the decedent. The contest thus created came on for hearing before the court and a large amount of testimony was offered thereon. At the conclusion of such hearing the court made its findings in words and effect."that all of said property and every part thereof was at his decease the separate property of said John Nickson, deceased, and that no part thereof was or is community property of said John Nickson and Naomi Nickson." The court accordingly by its decree distributed the whole of said property and estate according to the terms of the last will of said deceased. From this decree the appellant, Minnie L. Clayton, prosecutes this appeal.

It is an undisputed fact upon this appeal that all of the property which John Nickson undertook to dispose of by his last will and testament and of which he died seised he had acquired by purchase and increment since his arrival in California, and hence during his marriage with his said wife Naomi. This being so, the appellant invokes the presumption created by section 164 of the Civil Code, that all of said property was community property, and having done so insists that this presumption is one which can only be overcome by "clear and satisfactory proof," or, as it is sometimes stated in the cases, by "clear and convincing evidence" that such property was acquired by separate funds and that the burden of producing such proof lies upon the party claiming the property as separate; citing in that behalf Smith v. Smith, 12 Cal. 216, [76 Am. Dec. 533]; Dimmick v. Dimmick, 95 Cal. 323, [30 Pac. 547]. There can be no quarrel with a rule as well and old established as the rule above stated and supported by said authorities; but we are still required to determine the scope and meaning of the terms "clear and satisfactory proof" and "clear and convincing evidence" as employed in these cases. In arriving at this determination we are directly aided by the decision of this court in the case of Freese v. Hibernia Sav. etc. Society, 139 Cal. 392, [73 Pac. 172], in which the precise question was discussed and decided as to the force and effect to be given to both of the foregoing phrases: "Speaking of expressions of this character," says the court, "some of which

were stronger in terms than any used by this court, Ballinger in his work on Community Property, says (section 167): 'It is not believed, however, that these terms should be considered as going to the length that their general meaning might import. Certainly it is not required that the proof to destroy this presumption should be any more than sufficient to satisfy the mind of court or jury that its weight is enough to cause a reasonable person, under all the circumstances, to believe in its sufficiency, in order to counterbalance the naked presumption that the property was acquired with the funds of the community. The property is merely considered as the property of the community until the contrary is shown by legal proof, and legal proof would seem to be a preponderance of the testimony under all the facts and circumstances of the particular case.' [1] We are of the

opinion that it is incumbent on the party seeking to overcome the presumption of community property to do no more than to produce such legal evidence as, under all the circumstances of the particular case, would ordinarily produce conviction to an unprejudiced mind, and that in the face of such evidence the naked presumption, unsupported by any testimony, must fall." In the later case of Couts v. Winston, 153 Cal. 686, [96 Pac. 357], this court says: [2] "Whether or not the evidence offered . . . is clear and convincing is a question for the trial court. . . . In such cases, as in others, the determination of that court in favor of either party upon conflicting or contradictory evidence is not open to review in this court." In the case of Estate of Pepper, 158 Cal. 619, [31 L. R. A. (N. S.) 1092, 112 Pac. 62], the language of both of above cases was quoted and approved. In the light of these cases we approach the evidence in the instant case, which may be fairly summarized as follows: John Nickson, prior to the time of his marriage with his second wife, Naomi, in the year 1878, had been the owner of a farm in Wisconsin and also of some mining interests therein, which, together with his personal property consisting of money, cattle, and farming equipment, was variously estimated by several witnesses to be of the value of from ten thousand dollars to fourteen thousand dollars. About three years before his marriage with Naomi, and while his first wife was still living, he began to remove his property interests and effects to the state of Iowa, where he acquired a

farm of about 160 acres, which he stocked with his cattle and farming machinery brought from Wisconsin. These possessions were his when he returned to Wisconsin to marry Naomi, and he was then sufficiently well to do to be loaning money in the neighborhood of his Iowa home. From time to time during the twenty years he lived in Iowa after his marriage he added to his farm holdings until they amounted to about 540 acres in 1894, when he determined to remove to California, which he did in the month of December of that year. During the sixteen years of his married life in Iowa he and his wife Naomi were both hard-working people on the farm, his wife performing the usual work of a farmer's wife thereon and both deriving their living from its proceeds. Whatever increment there was in the acreage or equipment of his farm during these years came chiefly from its annual product and the profits arising therefrom. When the resolution was reached to remove to California John Nickson offered his realty holdings in Iowa for sale and held a public auction of his personal property, and derived from the sale of both the sum of about sixteen thousand dollars, which he transferred to this state and began investing here. Some question has been raised as to the rights of the wife in this property prior to its removal to California and under the laws of the state of Iowa, but we think this question is fairly set at rest by the decisions of that state holding that the dower interest of the wife under the statutes of Iowa then in force was a mere expectancy, dependent on survivorship to become a vested right. (Mock v. Watson, 41 Iowa, 241; Dougherty v. Dougherty, 69 Iowa, 677, [29 N. W. 778]; Purcell v. Lang, 97 Iowa, 610, [66 N. W. 887]; Beach v. Beach, 160 Iowa, 346, [Ann. Cas. 1915D, 216, 46 L. R. A. (N. S.) 98, 141 N. W. 921].) Within a short time after his arrival in California John Nickson began investing in real estate. He first purchased five acres of land planted to citrus fruit at Chula Vista, California, upon which he and his wife lived and where for a brief time they ran a boardinghouse, but whether at a profit or not does not appear. He also invested in a prune orchard near Tulare, California, where he and his wife worked for two summers. Some six years later he bought another tract of land in Whittier for fourteen hundred dollars on the installment plan, for which he finally paid. He also from time to time pur