« 이전계속 »
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.
As to what constituten-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 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. Το
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.
13. Presumption of gift.-Even if purchased with community funds there is a presumption that the husband intended a gift of the land to the wife as her separate property.-Hitchcock v. Rooney, 171 Cal. 285, 152 Pac. 913.
Where a man conveys property to his wife, the question as to whether he intended to make a gift is to be determined from his acts, declarations and conduct at the time of the transactions.—Alexander v. Bosworth, 26 Cal. App. 589, 147 Pac. 607.
1. Contracts of wife-Llving expenses.It is not to be presumed that a woman applies her separate rather than community property to paying the living expenses of herself and husband.—Thompson v. Davis, 172 Cal. 491, 157 Pac. 595.
8 172. 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.
MANAGEMENT AND CONTROL OF COM- received a valuable and adequate consideraMUNITY PROPERTY.
tion. Therefore it is not erroneous to sus1. As to generally.
tain an objection to an offer to show that 2. Actions in respect to.
the wife's consent to the transfer was not 3, 4. Construction of proviso.
obtained.-- Ragan v. Ragan, 29 Cal. App. 63,
154 Pac. 479. 5, 6. Disposition of-By deed.
6. A husband has the right to authorize 7-10. -By gift.
another, without the consent of his wife, to 11, 12, -By will.
sell community property for him in consid1. As to generally.The wife has no in- eration of any compensation which might terest or estate in community property dur
be satisfactory to him and his agent.-Faring the marriage relation; the husband is rington v. McClellan, 26 Cal. App. 375, 146 the absolute owner thereof.-Spreckels v.
Pac. 1051. Spreckels, 172 Cal. 775, 158 Pac. 537.
7. -By gift.-Gifts of community prop2. Actions in respect to.-In general, the erty made by a husband in his lifetime withhusband is the only party entitled to sue in out the consent in writing thereto by his respect to community property, and
wife are ratified and confirmed by her after wife is neither a necessary nor a proper
his death, where she, with full knowledge party. A right of action for damages caused of such gifts and of the fact that the will by personal injuries to the wife during mar- of her husband had disposed of all of the riage is community property.--Moody
community property, executes her own will Southern Pac. Co., 167 Cal. 786, 141 Pac. and therein declares that she makes no pro388.
vision for the persons to whom such gifts 3. Construction of proviso.—The proviso
were made by her husband, for the reason added in 1891 to section 172 of the Civil
that he had made such gifts.-Spreckels v. Code, that a husband can not make a gift
Spreckels, 172 Cal. 775, 158 Pac. 537. of the community property, or convey the 8. Where a man makes gifts of the comsame without a valuable consideration, un- munity property with the intent to deprive less the wife, in writing, consents thereto, his wife of her right to one-half thereof does not render a gift of community prop- upon his death, and to prevent her from erty by the husband without the consent of giving a part thereof to certain of their the wife void as to him, nor confer upon
children, the transfer is voidable merely him, in his lifetime, or upon his personal and not void.-Spreckels v. Spreckels, 172 representatives after his death, any right
Cal. 775, 158 Pac. 537. or power to revoke the gift or recover the 9. A husband's gift of community propproperty; nor, does the proviso purport to erty to two of the children is confirmed by vest in the wife, during the marriage, any his wife when she wills her property to present interest or estate in the community other children and states in the will that property given away by the husband without she intentionally omits any provision for the her written consent.-Spreckels v. Spreck- other children because the husband has proels, 172 Cal. 775, 158 Pac. 537.
vided for them.-Spreckels v. Spreckels, 172 4. If such proviso confers upon the wife
Cal. 775, 158 Pac. 537. during marriage any right respecting such 10. If the right of the wife to attack a a gift, it is nothing more than a right to gift accrues to her upon the making thereof, revoke the gift, and, if necessary, sue to re- the statute of limitations begins to run from cover the property, not as her separate es- such time, provided she had knowledge of tate, but to reinstate it as a part of the the gift, or was put upon inquiry concerning community property, with the title vested it; but, if the right does not accrue until in the husband, and subject to sale by him, the dissolution of the marriage by death or as before.--Spreckels v. Spreckels, 172 Cal. divorce, the statute does not begin to run 775, 158 Pac. 537.
until such dissolution.-Spreckels v. Spreck5. Disposition of_By deed.—The husband els, 172 Cal. 775, 158 Pac. 537. may convey the community property with- 11. -By will.-A man can not, without out the consent of the wife where he has the consent of his wife, make a will which 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.
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.
8 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; pro vided, 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.
History: Enactment approved May 23, 1917, Stats, and Amdts. 1917, p. 829. In effect July 27, 1917.
1. 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.
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,
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. Residence of minors.-Where the husband and wife are living in a state of separation, the county of the husband's residence is the county of the residence of the minor children, unless he has consented to their acquiring residence elsewhere, or has voluntarily relinquished his parental authority over them, or has otherwise been legally deprived thereof.—Cole v. Superior Court, 28 Cal. App. 1, 151 Pac. 169,
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.
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.
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.
PARENT AND CHILD.
$ 224. Adoption of children. Consent necessary. Orphans and abandoned children.
8 224. 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.
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.
1. Adopting abandoned child-Construc- declaration that she did not intend to abantion.—The placing of a minor child in cus- don the child.--In re Cordy, 146 Pac. 532; tody of the mother through a provision of affirmed, 169 Cal. 150, 146 Pac. 534. a divorce decree granted because of the 5. Where a deserted and destitute woman father's failure to provide is not such judi- gives her child to one who, without the cial deprivation of the custody of the child mother's knowledge, finds a home for the as is contemplated by this section.-Bell v. child, and subsequently the mother finds Krauss, 169 Cal. 387, 146 Pac. 874.
and visits the child and refuses to consent 2. That part reading “Any child left in to its adoption, being then able to care for the care and custody of another
it, she can not be regarded as having abanmay after such notice to parents
doned the child, and is entitled to its cusbe determined, by order of the juvenile tody.-In re Cordy, 146 Pac. 532; affirmed, court
to be an abandoned child 169 Cal. 150, 146 Pac. 534.
does not state all of the elements necessary to constitute abandonment, but
§ 226. only defines the circumstances under which 1. Proceedings on adoption-Compliance the juvenile court can take charge of cases with requirements.-The power to adopt of that kind and determine whether or
children is a creation of statute, and proof there has been an abandonment, one of the of strict formal compliance with the require. things necessary to be shown is intent on ments of the statute is essential.-Estate of the part of the parent to abandon the child.—
McCombs, 53 Cal. Dec. 73, 162 Pac. 897. In re Cordy, 146 Pac. 532; affirmed, 169 Cal. 150, 146 Pac. 534.
$ 230. 3. —"Abandonment,” what is.-In sec
1. Adoption of illegitimate children tion 224 of the Civil Code, providing that Construction.—This section and section 215 where a parent leaves a child with others
are mere statutes of status, and confer no without provision for its support for one rights of succession, these being governed year, it will be regarded as abandoned, the by sections 1386 and 1387.-Wolf v. Gall, 32 word "abandoned" is to be given its ordi- Cal. App. 286, 163 Pac. 346. nary meaning as defined by Webster.-In
2. Sections 215 and 230 of the Civil Code re Cordy, 146 Pac. 532; affirmed, 169 Cal.
are not confined in their application to chil150, 146 Pac. 534.
dren who have not attained their major4. An intent not to abandon is not con- ity.-Wolf v. Gall, 32 Cal. App. 286, 163 Pac. clusively established by the mother's mere 346.