COMMUNITY PROPERTY. 1. As to what constitutes-Interlocutory decree. 2-9. Presumption as to-Disputableness. 10. Burden of proof to overcome. 11, 12. —Profits from saloon and gambling business. 13, 14. Presumption of gift. 1. As to what constitutes-Interlocutory decree. All property acquired after an interlocutory decree and before final decree of divorce is acquired "after marriage," and before its termination, and therefore is community property.-Brown v. Brown, 170 Cal. 1, 147 Pac. 1168. 2. Presumption as to-Disputableness.— The presumption that property conveyed to either spouse after their marriage, other than as a gift, was community property under this section as it existed prior to the amendment by Stats. 1889, p. 328, was not applicable in case of a conveyance by one of the spouses to the other.-Estate of Klumpke, 167 Cal. 415, 139 Pac. 1062. 3. The presumption of a tenancy in common is created by a conveyance to husband and wife is not a conclusive one, and therefore it is competent for the administratrix (the widow) to show that the homestead was declared upon land which was in reality community property.-Estate of Shirley, 167 Cal. 193, 138 Pac. 994. 4. It is presumed that property in the possession of either husband or wife at the time of death belongs to the community.— Estate of Bollinger, 170 Cal. 380, 149 Pac. 995. 5. The presumption, although disputable, is itself evidence, and it is for the trial court to say whether the evidence offered to overthrow the presumption has sufficient weight to effect the purpose.-Thompson v. Davis, 172 Cal. 491, 157 Pac. 595. 6. A conveyance to the wife in her own name, presumptively, vests the property in her as her separate property, but the presumption is not conclusive, and may be overcome by evidence sufficient to satisfy the court that the property is community.— Pabst v. Shearer, 172 Cal. 239, 156 Pac. 466. 7. The presumption that real property conveyed to a wife by an instrument in writing is her separate estate is a disputable one and may be overcome by any competent evidence to overcome it.-Holmes v. Holmes, 27 Cal. App. 546, 150 Pac. 793. 8. The presumption that whenever a conveyance is made to a married woman and her husband she takes the part conveyed as a tenant in common is not a conclusive one. The presumption is itself evidence which may outweigh the positive testimony of witnesses, and will stand as evidence until overcome by other testimony. Whether any such disputable presumption has been dis pelled by testimony received in rebuttal thereof, is a question for the trial court.Crowley v. Savings Union B. & T. Co., 30 Cal. App. 535, 159 Pac. 194. 9. To overcome the presumption that property deeded to the wife did not become her separate property it must be established to the satisfaction of the court that the property had been paid for with community funds.-Thompson v. Davis, 172 Cal. 491, 157 Pac. 595. 10. -Burden of proof to overcome.— Where property is purchased with community funds, and the conveyance is made direct to the wife, the burden of proof is upon the husband or those claiming under him to show that he did not have the conveyance thus made with the intention of making a gift of the property to his wife.Pabst v. Shearer, 172 Cal. 239, 156 Pac. 466. 11. -Profits from saloon and gambling business.-Where a husband at the time of his marriage is the part owner of a saloon and gambling business, the entire profits, after marriage, are not necessarily his separate property; the interest of the husband in the capital of the partnership, as it was at the time of his marriage, is his separate property, as is the part of the subsequent profits arising from the use of the capital, but the part of the profits that accrues from the personal activity, ability and capacity of the husband is community property.Estate of Gold, 170 Cal. 621, 151 Pac. 12. 12. Profits made after marriage from the winnings of the husband's partner in gambling, the partnership having been formed before the marriage, are not the husband's separate property, on the theory that the business was unlawful, and that the partner was under no obligation to turn over any of such profits, and that in doing so he made a gift thereof to the husband.-Estate of Gold, 170 Cal. 621, 151 Pac. 12. § 172. POWER OF HUSBAND OVER COMMUNITY PROPERTY. PERSONAL PROPERTY. The husband has the management and control of the community personal property, with like absolute power of disposition, other than testamentary, as he has of his separate estate; provided, however, that he can not make a gift of such community personal property, or dispose of the same without a valuable consideration, or sell, convey, or encumber the furniture, furnishings, or fittings of the home, or the clothing or wearing apparel of the wife or minor children that is community, without the written consent of the wife. History: Enacted March 21, 1872; amended March 31, 1891, Stats. and Amdts. 1891, p. 435; March 23, 1901, Stats. and Amdts. 1900-1, p. 598; May 23, 1917, Stats. and Amdts. 1917, p. 829. In effect July 27, 1917. 1. As to generally.-The wife has no interest or estate in community property during the marriage relation; the husband is the absolute owner thereof.-Spreckels v. Spreckels, 172 Cal. 775, 158 Pac. 537. 2. Actions in respect to.-In general, the husband is the only party entitled to sue in respect to community property, and the wife is neither a necessary nor a proper party. A right of action for damages caused by personal injuries to the wife during marriage is community property.-Moody V. Southern Pac. Co., 167 Cal. 786, 141 Pac. 388. 3. Construction of proviso.-The proviso added in 1891 to section 172 of the Civil Code, that a husband can not make a gift of the community property, or convey the same without a valuable consideration, unless the wife, in writing, consents thereto, does not render a gift of community property by the husband without the consent of the wife void as to him, nor confer upon him, in his lifetime, or upon his personal representatives after his death, any right or power to revoke the gift or recover the property; nor, does the proviso purport to vest in the wife, during the marriage, any present interest or estate in the community property given away by the husband without her written consent.-Spreckels v. Spreckels, 172 Cal. 775, 158 Pac. 537. 4. If such proviso confers upon the wife during marriage any right respecting such a gift, it is nothing more than a right to revoke the gift, and, if necessary, sue to recover the property, not as her separate estate, but to reinstate it as a part of the community property, with the title vested in the husband, and subject to sale by him, as before. Spreckels v. Spreckels, 172 Cal. 775, 158 Pac. 537. 5. Disposition of-By deed. The husband may convey the community property without the consent of the wife where he has received a valuable and adequate consideration. Therefore it is not erroneous to sustain an objection to an offer to show that the wife's consent to the transfer was not obtained.-Ragan v. Ragan, 29 Cal. App. 63, 154 Pac. 479. 6. A husband has the right to authorize another, without the consent of his wife, to sell community property for him in consideration of any compensation which might be satisfactory to him and his agent.-Farrington v. McClellan, 26 Cal. App. 375, 146 Pac. 1051. 7. By gift.-Gifts of community property made by a husband in his lifetime without the consent in writing thereto by his wife are ratified and confirmed by her after his death, where she, with full knowledge of such gifts and of the fact that the will of her husband had disposed of all of the community property, executes her own will and therein declares that she makes no provision for the persons to whom such gifts were made by her husband, for the reason that he had made such gifts.-Spreckels v. Spreckels, 172 Cal. 775, 158 Pac. 537. 8. Where a man makes gifts of the community property with the intent to deprive his wife of her right to one-half thereof upon his death, and to prevent her from giving a part thereof to certain of their children, the transfer is voidable merely and not void.-Spreckels v. Spreckels, 172 Cal. 775, 158 Pac. 537. 9. A husband's gift of community property to two of the children is confirmed by his wife when she wills her property to other children and states in the will that she intentionally omits any provision for the other children because the husband has provided for them.-Spreckels v. Spreckels, 172 Cal. 775, 158 Pac. 537. 10. If the right of the wife to attack a gift accrues to her upon the making thereof, the statute of limitations begins to run from such time, provided she had knowledge of the gift, or was put upon inquiry concerning it; but, if the right does not accrue until the dissolution of the marriage by death or divorce, the statute does not begin to run until such dissolution.-Spreckels v. Spreckels, 172 Cal. 775, 158 Pac. 537. 11. -By will.-A man can not, without the consent of his wife, make a will which will effectively dispose of her right to succeed to one-half of the community property if she should survive him.-Estate of Whitney, 171 Cal. 750, 154 Pac. 855. 12. A husband's testamentary disposition of more than one-half of the community property is not void as to the wife, but only voidable. Spreckels v. Spreckels, 172 Cal. 775, 158 Pac. 537. § 172a. SAME. REAL PROPERTY. The husband has the management and control of the community real property but the wife must join with him in executing any instrument by which such community real property or any interest therein is leased for a longer period than one year, or is sold, conveyed, or encumbered; provided, however, that the sole lease, contract, mortgage or deed of the husband, holding the record title to community real property, to a lessee, purchaser or encumbrancer, in good faith without knowledge of the marriage relation shall be presumed to be valid; but no action to avoid such instrument shall be commenced after the expiration of one year from the filing for record of such instrument in the recorder's office in the county in which the land is situate. § 175. 1. History: Enactment approved May 23, 1917, Stats. and Amdts. 1917, p. 829. In effect July 27, 1917. Husband abandoned-Liability for support. The husband can not be required to support his wife when, without his fault and against his will, she voluntarily deserts him and lives apart from him.-Lampson v. Lampson, 171 Cal. 332, 153 Pac. 238. $196. 1. Support of child-Who must in absence of provision in divorce decree.-Where in a divorce proceeding the custody of a minor child is given to the mother, and no provision in the decree is made for the support of such child by the father, the parent entitled to the custody of the child must support it.-People v. Champion, 30 Cal. App. 463, 158 Pac. 501. § 196a. 1. Support of bastard child-Construction. This section does not in any way change the application of section 270 of the Penal Code as originally adopted, the latter section having no application to the father of illegitimate children.-In re Gambetta, 169 Cal. 100, 145 Pac. 1005. 2. The remedy provided by this section is different from the remedy provided for legitimate children to maintain actions against their parents for support, the difference being that in proceedings hereunder the mother as such in her own name may maintain the action, and it is within the power of the court to impound the property of the parent as security for the payment required by its decree.-Gambetta v. Gambetta, 30 Cal. App. 261, 157 Pac. 1141. 3. -Child may sue father for support.— A minor illegitimate child may himself, through his guardian, maintain an action to compel his father to support him, and it is not necessary that the mother should bring the action in her own name.-Gambetta v. Gambetta, 30 Cal. App. 261, 157 Pac. 1141. § 197. 1. Custody of minor.-Prima facie a parent is presumed competent, and he is entitled to have the custody of his child unless found by the court to be incompetent.-Bell v. Krauss, 169 Cal. 387, 146 Pac. 874. 2. Upon the death of a mother to whom a child has been given by a decree of divorce, the father becomes entitled to the custody of the child.-Bell v. Krauss, 169 Cal. 387, 146 Pac. 874. 3. -Effect on of marriage of minor.The care and custody of a minor, in so far as either parents or guardian is concerned, is superseded by the marriage of the minor. -In re Ambrose, 170 Cal. 160, 149 Pac. 43. 1. Construction.-This is a special provision applicable only where the husband and wife "live in a state of separation" and when the purpose of the proceeding contemplates the "custody of minor children" and the prerequisite is that an application shall be made by one of the spouses.-Cole v. Superior Court, 28 Cal. App. 1, 151 Pac. 169. 2. This section does not require that either party "bring an action" for the custody of the minor as required by section 199 and a formal application setting forth the appropriate facts is sufficient as a basis for judicial investigation of the situation and the disposition of the custody of the minor. The petition for letters of guardianship and the answer filed thereto by the opposing parent praying for a denial thereof and the award of the custody to her constitute an "application" as that term is used herein.Cole v. Superior Court, 28 Cal. App. 1, 151 Pac. 169. 3. The superior court is a court of competent jurisdiction to make an order as to the custody of a minor child within the meaning of this section.-Cole v. Superior Court, 28 Cal. App. 1, 151 Pac. 169. § 215. 1. Construction.-This section and section 230 of the code are not confined in their application to children who have not attained their majority.-Wolf v. Gall, 32 Cal. App. 286, 163 Pac. 346. 2. This section and section 230 are mere statutes of status, and confer no rights of succession, these being governed by sections 1386 and 1387.-Wolf v. Gall, 32 Cal. App. 286, 163 Pac. 346. TITLE II. PARENT AND CHILD. CHAPTER II. BY ADOPTION. § 224. Adoption of children. Consent necessary. Orphans and abandoned children. § 224. ADOPTION OF CHILDREN. CONSENT NECESSARY. ORPHANS AND ABANDONED CHILDREN. A legitimate child can not be adopted without the consent of its parents if living, nor an illegitimate child without the consent of its mother if living, except that consent is not necessary in the following cases, to wit: 1. From a father or mother if deprived of civil rights. 2. From a father or mother adjudged guilty of adultery or cruelty and for either cause divorced. 3. [Father or mother deprived of control of child.] From a father or mother who has been judicially deprived of the custody and control of such child on the ground of abandonment, cruelty, neglect or habitual intemperance, either by order of the juvenile court declaring said child to be free from the custody and control of its parents as provided in the juvenile court law of the State of California, approved June 5, 1915, and any act or acts superseding or amending same, or by order of the juvenile court of the county, where such child was left in the care and custody of another by its parent or parents, without any provisions for its support, for the period of one year, determining such child to be an abandoned child as defined in said juvenile court law; provided, however, that said juvenile court shall never make such order of abandonment without first giving notice of said abandonment proceeding by personal service of citation or other court process on the parent or parents or person having the custody of such child residing within the state, if their residence is known, and also such other or further notice to said parent or parents or person having the custody of such child, or other person or persons as the court may require, or by order of any other court of competent jurisdiction. 4. [Father or mother declared insane.] From a father or mother who has been declared either feeble-minded or insane by the state commission in lunacy or by three competent persons appointed by said commission; provided, that if so declared insane, said father or mother shall have subsequently been determined to be incurably insane by the superior court of the county where he or she resides. [Deserted child.] From a father or mother of any child deserted by its parents without provision for their identification. [Child relinquished for purpose of adoption.] From a father or mother of any child relinquished by its parent or parents for the purpose of adoption expressed in writing signed and acknowledged by such parent or parents before an officer authorized to take acknowledgments, or signed by such parent or parents before two subscribing witnesses and acknowledged by such parent or parents before the secretary of any organization or society engaged in the work of placing dependent or deserted children into homes in this state, which organization or society has obtained a permit therefor, duly executed in writing, from the state board of charities and corrections, and when a copy of this relinquishment shall have been filed with the state board of charities and corrections prior to the commencement of any adoption proceedings affecting such child. [Child in orphan asylum.] Any child, the consent of whose parents is not necessary for its adoption within the meaning of this section maintained by or in the custody of any orphan asylum within this state, any charitable organization or society receiving state aid or receiving commitments from the juvenile court, may be adopted with the consent of the president of such orphan asylum, charitable organization or society, or with the consent of such officer as may be authorized by the directors or managers of such asylum, organization or society to consent to adoption in such cases. Any orphan child for whose support no provision has been made by any person for a period of one year, but who has been maintained during said year, by or in the custody of any orphan asylum within this state, any charitable organization or society receiving state aid or receiving commitments from the juvenile court may be adopted with the consent of the president of such orphan asylum, charitable organization or society or with the consent of such officer as may be authorized by the directors or managers of such asylum, organization or society to consent to adoption in such cases. 1. History: Enacted March 21, 1872; amended March 2, 1891, Stats. and Amdts. 1891, p. 24; March 9, 1893, Stats. and Amdts. 1893, p. 39; by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 339; act held unconstitutional, see Kerr's Cyc. C. C., § 4; amended March 10, 1903, Stats. and Amdts. 1903, p. 114; March 16, 1907, Stats. and Amdts. 1907, p. 331, Kerr's Stats. and Amdts. 1906-7, p. 400; April 12, 1911, Stats. and Amdts. 1911, p. 899; April 26, 1913, Stats. and Amdts. 1913, p. 95; May 19, 1917, Stats. and Amdts. 1917, p. 770. In effect July 27, 1917. Adopting abandoned child-Construction. The placing of a minor child in custody of the mother through a provision of a divorce decree granted because of the father's failure to provide is not such judicial deprivation of the custody of the child as is contemplated by this section.-Bell v. Krauss, 169 Cal. 387, 146 Pac. 874. 2. That part reading "Any child left in the care and custody of another may after such notice to parents be determined, by order of the juvenile court to be an abandoned child "does not state all of the elements necessary to constitute abandonment, but only defines the circumstances under which the juvenile court can take charge of cases of that kind and determine whether or not there has been an abandonment, one of the things necessary to be shown is intent on the part of the parent to abandon the child.In re Cordy, 146 Pac. 532; affirmed, 169 Cal. 150, 146 Pac. 534. 3. "Abandonment," what is.-In section 224 of the Civil Code, providing that where a parent leaves a child with others without provision for its support for one year, it will be regarded as abandoned, the word "abandoned" is to be given its ordinary meaning as defined by Webster.-In re Cordy, 146 Pac. 532; affirmed, 169 Cal. 150, 146 Pac. 534. 4. An intent not to abandon is not conclusively established by the mother's mere declaration that she did not intend to abandon the child.-In re Cordy, 146 Pac. 532; affirmed, 169 Cal. 150, 146 Pac. 534. 5. Where a deserted and destitute woman gives her child to one who, without the mother's knowledge, finds a home for the child, and subsequently the mother finds and visits the child and refuses to consent to its adoption, being then able to care for it, she can not be regarded as having abandoned the child, and is entitled to its custody. In re Cordy, 146 Pac. 532; affirmed, 169 Cal. 150, 146 Pac. 534. |