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Amelia Waterland and G. F. Waterland, generally known as Frank Waterland, intermarried in 1894. No children were born to them. After their marriage and until January 1, 1920, they operated a candy store in Chico, California. Both of them devoted their time and labor to the business. The income therefrom was on various occasions used for the purchase of real estate, which in turn produced income by way of rentals; the deeds to such real estate were taken in the name of Frank Waterland. The candy store was sold on January 1, 1920, and thereafter the community income of the Waterlands consisted of the rentals from the real estate, of interest on occasional loans of money, and of interest on bank accounts into which receipts from the two sources just mentioned were occasionally deposited.

Plaintiff filed an inventory and appraisement in the estate of Frank Waterland in which he claimed as separate property of the latter (by reason of the prior demise of the wife) all of the community property acquired by the Waterlands, [23 Cal. 2d 616] including the community real estate and bank accounts. Thereupon defendant filed a "Supplemental Amended Inventory and Appraisement" in the estate of Amelia Waterland, in which he included as property of her estate an interest in the real property described in the inventory filed by plaintiff in the estate of Frank Waterland and a one-half interest in several described bank accounts which stood in the name of the husband on the date of the wife's death. Defendant also made demand upon plaintiff to deliver to him from such bank accounts the sum of $13,206.01, claimed to represent the interest therein of Amelia Waterland's estate. Plaintiff refused to pay over the money, and filed this suit, in which he seeks, among other things, to secure a judgment "declaring and adjudicating the respective rights" of the plaintiff and the defendant in and to both the real and the personal property in dispute. Defendant in his answer claimed that one-half of all the community property of the Waterlands, whether acquired before or after the 1923 amendment to section 1401 of the Civil Code, was subject to the testamentary disposition of the wife, and that as administrator of her estate he was entitled to possession and control of such one-half "to the extent necessary to permit the defendant to carry into effect all of the provisions, legacies and bequests set forth and contained" in the will of Amelia Waterland. The separate estate of Amelia Waterland is admittedly insufficient to carry out the provisions of her will.

At the beginning of the trial, which was by the court without a jury, defendant conceded that none of the community property acquired by the Waterlands prior to the effective date of the 1923 amendment "would be subject to the [testamentary] disposition of the wife," but urged that one-half of the income accruing between that date and the date of the wife's death (September 25, 1935) was subject to administration in her estate. Such income was represented, so far as here in controversy, by six bank accounts which stood in the name of the husband and which totaled some twenty-four to twenty-five thousand dollars at the time of the wife's death. The court found, among other things, "that said George Frank Waterland, up to the time of the death of said Amelia Waterland, collected rents and income from the community real estate which was owned by said husband and wife as community property on [23 Cal. 2d 617] the 16th day of July, fn. * 1923, and deposited said rentals and income in bank accounts, and withdrew and redeposited and reinvested the same. That all of the personal ... property described in this finding had its source in said rentals and income so deposited, redeposited and reinvested, and none of it had its source in the earnings of said husband and wife after the 16th day of July, 1923. That none of said ... personal property consists of the original rentals or income from said community real estate so owned on the 16th day of July, 1923, by said husband or wife or the original deposits of the said rentals and income so received from said property. That the ... personal property referred to in this finding is specifically described as follows: ..." (Italics added.) The description which then follows includes the six bank accounts here in dispute. Judgment was entered by which it was adjudged, among other things, "that one-half of all the personal property, including ... bank accounts acquired on and after the 16th day of July, 1923, and owned by George Frank Waterland and Amelia Waterland at the time of the death of said Amelia Waterland, and hereinafter specifically set forth, ... were and are subject to administration in the estate of Amelia Waterland, deceased, as of the time of her death, to-wit: September 25, 1935," and "that the defendant is entitled to administer ... as the property of the estate of Amelia Waterland, deceased, as of the time of her death" one-half of the sums in the bank accounts.

Plaintiff's motion for a new trial was denied, and he thereupon appealed from that portion of the judgment which is quoted immediately hereinabove. We note that neither the findings nor the judgment of the trial court specifically fixes the dates upon or between which the rentals and income found to have been deposited in the bank accounts accrued or were received by the Waterlands. In other words, so far as the language of such findings and judgment is concerned, the funds found to have been deposited may have been income which, in part at least, accrued prior to the 1923 amendment. However, plaintiff in his opening brief makes the following statement: "This [23 Cal. 2d 618] appeal is taken from that portion of the judgment which provides in effect that one-half of the community personal property which was originally acquired by the spouses in the form of real property rentals received on and after the 16th day of July, 1923, and still owned by George Frank Waterland and Amelia Waterland at the time of the death of said wife on September 25, 1935, is subject to administration in the estate of Amelia Waterland." (Italics added.) Apparently, therefore, plaintiff concedes that the bank accounts had their source in rentals received, and which, for the purposes of this opinion, we shall presume accrued, after the 1923 amendment. (The error as to the effective date of the 1923 amendment is not material in the light of the conclusion we reach.)

"At the time of the purchase of said real property [prior to 1923] the respondent [husband] took the absolute title thereto subject to whatever rights his wife had therein by virtue of the fact that the same was the community property of himself and his wife. This right of his wife was to receive upon the death of her husband, and subject to his debts, one-half of the community property. ... Her death, however, prior to that of her husband, made the happening of this contingency impossible and thereupon the entire estate belonged to the husband without administration (Civ. Code, sec. 1401, prior to its amendment in 1923). These rights of the respective spouses in the community property attached to the property and were acquired by the parties at the time of the conveyance of the property, and ... said rights cannot be impaired or destroyed by subsequent legislation. The courts, as above noted, have uniformly held that any legislation affecting the rights of the parties in such cases will not be given a retroactive construction, but that the law in force at the date of acquisition of the property is determinative of the rights of the parties therein." (Italics added.) e24fc04721