FULLER VS. FULLER (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

Appeal from a decree, entered under Stats. 1939, ch. 18 (2 N.C.L. Supp. sec. 9895), establishing a deceased wife's death and vesting community real property in the surviving husband, and from denial of a new trial. Held: (1) the surviving husband's failure to reply to the objectors' allegation that the property was bought with the wife's separate funds admitted nothing, because that allegation was not "new matter constituting a defense." (2) The 1939 act was not repealed by the 1941 deceased-persons act; under the 1937 community-property statute, on the wife's death the entire community property vests without administration in the surviving husband and never becomes part of her estate. (3) The objectors, having answered on the merits rather than appearing specially to contest jurisdiction, submitted the ownership question to the court, giving it jurisdiction to determine community-versus-separate character as in a quiet-title action. (4) The husband's 1924 deed to the wife raised a rebuttable presumption of transmutation to her separate property, but transmutation must be shown by clear and convincing evidence, and the trial court's contrary finding (payment with community funds) was amply supported; the grantor husband was not estopped to prove the property remained community. (5) The challenged testimony was not barred by the spousal-communication privilege (sec. 8971) or the dead-man's statute (sec. 8966), both narrowly construed. Affirmed.

In plain language

After a wife died, her surviving husband petitioned the court to confirm that certain Reno real estate was community property that vested in him without probate. The wife's three sons from a prior marriage objected, claiming the property was her separate property, bought with her own funds, that they should inherit. The trial court found the property was community property acquired with the husband's earnings and that it vested in him on the wife's death. The Nevada Supreme Court affirmed. On a wife's death, the entire community property vests in the surviving husband without administration, and the 1939 statute allowing this streamlined procedure was not repealed by the 1941 probate act. Because the sons answered and went to trial on the merits (rather than specially objecting to the court's jurisdiction), they submitted the ownership question to the court, which could decide it much like a quiet-title case. Although the husband had earlier deeded the land to the wife - raising a presumption that it became her separate property - that presumption is rebuttable, and the evidence supported the finding that the property was paid for with community funds. The husband's testimony was not barred by the spousal-communication privilege or the dead-man's statute.