
    [L. A. No. 25956.
    In Bank.
    July 20, 1961.]
    Estate of MEYER A. ARSTEIN, Deceased. GERTRUDE H. ARSTEIN, Petitioner and Appellant, v. UNION BANK, as Trustee, etc., et al., Objectors and Respondents.
    
      Spar & Smith and A. Albert Spar for Petitioner and Appellant.
    Albert E. Marks, Aaron Levinson, W. Alan Thody and Sydney J. Dunitz for Objectors and Respondents.
   McCOMB, J.

This is an appeal from a portion of a judgment determining that the entire estate of appellant’s husband, who died July 10, 1958, was his sole and separate property.

Facts: Meyer A. Arstein and appellant were married in Illinois in 1951. They moved to California the same year and resided here continuously until he died July 10, 1958.

Decedent’s will left a bequest to appellant. She filed a petition for a determination of the nature and extent of the property in the estate, so that she could make an intelligent election whether to take under the will or to take her community property interest by law.

The trial court made the following findings: (1) decedent’s net worth at the time of marriage was at least $438,918.93; (2) aggregate income during the marriage was $256,277.23; (3) separate income of decedent was at least $184,345.98; (4) community income during the marriage was a maximum of $71,931.25; (5) community living expenses during the marriage were at least $108,868.40.

Predicated upon the foregoing findings, the trial court found that the entire estate of decedent consisted of his separate property, since living expenses during the marriage exceeded community income.

Questions-. First. Are the trial court’s findings (a) that decedent’s net worth at the time of his marriage to appellant was at least $438,918.93 and (6) that the living expenses of decedent and appellant during their marriage were at least $108,868.40 supported by the evidence?

Yes. When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uneontradicted, which will support the finding of fact. (Primm v. Primm, 46 Cal.2d 690, 693 [1] [299 P.2d 231].).

The reporters’ transcript on appeal contains 334 pages, and 53 exhibits were introduced, including, among other things, check books, ledgers and income tax returns. We have examined the record and are of the opinion that there was substantial evidence, considered in connection with such inferences as the trial court could reasonably draw therefrom, to sustain each and every material finding of fact upon which the judgment is necessarily predicated. We therefore refrain from further discussion of the evidence. (Fomco, Inc. v. Joe Maggio, Inc., 55 Cal.2d 162, 164 [10 Cal.Rptr. 462, 358 P.2d 918].)

Second. Did the trial court apply the proper rule of law to the facts in the present case?

Yes. The record discloses that the source of all funds was originally traced to the decedent’s separate property at the time of marriage. Under such a state of facts, the separate property is given a fair return on the investment, and any money in excess thereof is deemed attributable to the husband’s skill and effort and is therefore treated as community property. (Pereira v. Pereira, 156 Cal. 1, 7 [103 P. 488, 134 Am.St.Rep. 107, 23 L.R.A. N.S. 880] ; Margolis v. Margolis, 115 Cal.App.2d 131, 135 [5a] [251 P.2d 396] [hearing denied by the Supreme Court].) This rule the trial court properly applied to the facts of this case.

The amount thus determined by the trial court to be community income during marriage was substantially less than the community living expenses. Consequently, none of the estate left by decedent consisted of community property. (Estate of Ades, 81 Cal.App.2d 334, 339 [5] [184 P.2d 1] ; cf. Thomasset v. Thomasset, 122 Cal.App.2d 116, 127 [9] [264 P.2d 626].)

The property which decedent held at the time of his death was different property from that which he held at the time of marriage. Appellant contends that she is therefore entitled, under section 164 of the Civil Code, to a presumption that such property was community property. She further argues that, under the rule laid down in Estate of Adams, 132 Cal.App.2d 190 [282 P.2d 190], the presumption controls, since due to commingling it is impossible to trace decedent’s separate property.

Estate of Adams is not applicable here. In that ease the heirs of the wife, who had predeceased the husband by 10 years, claimed a share of certain residuary assets in the husband’s estate under section 228 of the Probate Code. The presumption was that the property constituted the separate property of the husband.

The assets in question had been derived from substantial contributions of both community property and the husband’s separate property. Therefore, the only way the wife’s heirs could have rebutted the presumption was to trace community property into property in the estate of the husband. Under the circumstances there existing, however, the assets having been commingled in some 473 transactions, tracing was impossible, and accordingly the presumption controlled.

In the present case, on the other hand, the source of the funds was entirely the husband's separate property. There was a presumption that the funds constituted community property, but respondents rebutted the presumption by evidence that the total community income was less than the total community living expenses. Under the circumstances of this case, tracing was unnecessary.

The situation here was the same as that in Estate of Ades, supra, 81 Cal.App.2d 334, where it was said, at 339 [5] : Evidence that there was no excess of community income over living expenses is as effective to prove that all assets of the estate are separate property as a specific showing from which separate source each asset flowed.”

Affirmed.

Gibson, C. J., Traynor, J., Schauer, J., Peters, J., White, J., and Dooling, J., concurred.

Appellant’s petition for a rehearing was denied August 16, 1961.

Appendix

The evidence shows that less than two months before decedent and appellant were married decedent received $546,665.79 on the sale of certain assets then owned by him, and after the date of the marriage received $98,018.44 on the sale of additional assets owned by him at the time of marriage, making a total of $644,684.23 received from the sale of assets owned by him at the time of, or immediately prior to, the marriage.

After the date of the marriage decedent paid a net income tax for the year 1951 of $105,765.30 and also paid the sum of $100,000 to his previous wife under the terms of a property settlement agreement.

It therefore appears that the amount realized by decedent on the sale of assets owned by him at the time of, or immediately prior to, the marriage exceeded the amount of the expenditures above referred to, which were chargeable against his separate property, by the sum of $438,918.93, the amount which the trial court found to be his minimum net worth at the time of marriage.

With respect to the estimated living expenses of decedent and appellant during the period of their marriage, a certified public accountant testified that under his supervision decedent’s available check stubs for that period were examined; that adding machine tapes were taken of all items of a personal nature, that is, other than those which were clearly business or tax deductible items; and that such tapes showed a total of $108,868.40 expended for living expenses. He further testified that check stubs were missing for approximately 15 months during the period in question.

The following exhibits received in evidence also support the findings of the trial court: [See pages 244-247.] 
      
      A summary of some of the evidence sustaining the findings of the trial court is set forth in an appendix to this opinion.
     