Estate of Rudman

In Estate of Rudman (1948) 85 Cal.App.2d 270, one Jacob Wickstrom conveyed his separate property to himself, his sister, and his sister's husband, as joint tenants. Jacob died first, followed by the husband, with neither of them making any conveyance of their interests in the property. The sister subsequently died intestate, also without conveying any of her interest in the subject property. The court ordered the property distributed to the heirs of the sister. The husband's heirs appealed, and the order was affirmed on appeal. The Rudman court rejected the argument that "the predeceased spouse held his interest in the joint tenancy as his separate property" for purposes of applying section 229. 8 Using reasoning first applied in Abdale, supra, 28 Cal.2d 587, the court determined that utilizing "'the character of the property at the time of the death of the predeceased spouse'" as the controlling factor would render sections 228 and 229 inconsistent with each other. " 'Section 228 applies when ". . . the estate, or any portion thereof was community property of the decedent and a previously deceased spouse, and . . . became vested in the decedent on the death of such spouse by right of survivorship . . . in a joint tenancy between such spouse and the decedent." Section 229 likewise applies when ". . . the estate or any portion thereof was separate property of a previously deceased spouse, and . . . became vested in the decedent on the death of such spouse by right of survivorship . . . in a joint tenancy between such spouse and the decedent." The phrase "was community property" in section 228 necessarily refers to the character of the property before it was placed in joint tenancy. Accordingly, it is held that "the Legislature intended to ignore the fact that a vested one-half interest as separate property may be created, and viewed the property in its original form as community property." Since the two sections must be "read and construed together" , consistency requires that the phrase "was separate property" in section 229 also be interpreted as referring to the character of the property before it was placed in joint tenancy.'" ( Estate of Rudman, supra, 85 Cal.App.2d at pp. 275-276.)