Arstein v. Union Bank, 364 P.2d 33 (Cal. 1961). · Go Syfert
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Arstein v. Union Bank, 364 P.2d 33 (Cal. 1961). Cases Citing This Book View Copy Cite
“the integration of executive forces is an element of exceeding 15 importance.”
117 citation events (4 in the last 25 years) across 3 distinct courts.
Strongest positive: Sunfarms, LLC v. Eurus Energy America Corporation (casd, 2019-09-27)
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Top citers, strongest first. 23 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Sunfarms, LLC v. Eurus Energy America Corporation
S.D. Cal. · 2019 · signal: see · quote attribution · 1 verbatim quote · confidence high
the integration of executive forces is an element of exceeding 15 importance.
discussed Cited as authority (rule) Beam v. Bank of America
Cal. · 1971 · confidence medium
For convenience and clarity, however, we refer to the wife as the appellant. 2 Section 5108 (formerly § 163) provides in relevant part: “All property owned by the husband before marriage and that acquired afterwards by gift, bequest, devise or descent, with the rents, issues and profits thereof, is his separate property.” 3 See, e.g., Weinberg v. Weinberg (1967) 67 Cal.2d 557, 564-565 [ 63 Cal.Rptr. 13 , 432 P.2d 709 ]; Estate of Arstein (1961) 56 Cal.2d 239, 241 [ 14 Cal.Rptr. 809 , 364 P.2d 33 ]; Price v. Price (1963) 217 Cal.App.2d 1, 7 [ 31 Cal.Rptr. 350 ]; Haldeman v. Haldeman (1962)…
discussed Cited as authority (rule) Ventura v. Colgrove (2×)
Cal. Ct. App. · 1969 · confidence medium
The rules here applicable are well stated in Berniker v. *144 Berniker, 30 Cal.2d 439, 444 [ 182 P.2d 557 ]: "It must be remembered that the trial court was face to face with the witnesses and had the opportunity to judge, from their demeanor on the stand and their manner of testifying, which of those giving positive testimony were worthy of credence. [1] As has so frequently been said, it is the general rule that on appeal an appellate court (1) will view the evidence in the light most favorable to the respondent; (2) will not weigh the evidence; (3) will indulge all intendments and reasonabl…
discussed Cited as authority (rule) Barnes v. McKendry
Cal. Ct. App. · 1968 · confidence medium
Code, § 853; 49 Cal.Jur.2d 196; 26 Cal.Jur.2d 108-109; 10 Cal.Jur.2d 689.) That there was no substantial community property, under the evidence which was accepted by the court, is in accordance with well-established principles (Estate of Arstein, 56 Cal.2d 239, 241 [ 14 Cal.Rptr. 809 , 364 P.2d 33 ]; Estate of Neilson, 57 Cal.2d 733, 742 [ 22 Cal.Rptr. 1 , 371 P.2d 745 ]; Hicks v. Hicks, 211 Cal.App.2d 344, 160 [ 27 Cal.Rptr. 305 ]; Kershman v. Kershman, 192 Cal.App.2d 18, 21-22 [ 13 Cal.Rptr. 288 ]; Estate of Inman, 148 Cal.App.2d 952, 958 [ 307 P.2d 953 ]; Estate of Risse, 156 Cal.App.2d 41…
discussed Cited as authority (rule) Millington v. Millington
Cal. Ct. App. · 1968 · confidence medium
(See South Santa Clara etc. Dist. v. Johnson (1964) 231 Cal.App.2d 388, 404-405 [ 41 Cal.Rptr. 846 ].) He did make it clear in these requests, by his objections to the findings proposed by plaintiff, and by his own proposed findings, that he questioned the sufficiency of the evidence to support the finding that the business was community property. “ [W]hen a husband owns a business as his separate property and devotes his efforts to the enterprise, there must be an apportionment of the profits.” (Estate of Neilson (1962) 57 Cal.2d 733, 740 [ 22 Cal.Rptr. 1 , 371 P.2d 745 ], See also Estate…
discussed Cited as authority (rule) England v. Christensen
Cal. Ct. App. · 1966 · confidence medium
The two last mentioned are together represented by separate counsel and have filed a separate brief on this appeal. 13 Seetion 1705 in pertinent part provides: “A corporation shall not purchase directly or indirectly any shares issued by it or by any corporation of which it is a subsidiary, except as authorized by Section 1706, Section 1707, or Section 1716.” 14 Seetion 1708 in pertinent part provides: “A corporation shall not purchase or redeem shares issued by it ... in any case when there is reasonable ground for believing that the corporation is unable, or, by such purchase or redemp…
discussed Cited as authority (rule) Patterson v. Patterson (2×)
Cal. Ct. App. · 1966 · confidence medium
N.S. 880]; Estate of Arstein (1961) 56 Cal.2d 239, 241 [ 14 Cal.Rptr. 809 , 364 P.2d 33 ]; Estate of Neilson (1962) 57 Cal.2d 733, 740 [ 22 Cal.Rptr. 1 , 371 P.2d 745 ]; Margolis v. Margolis (1952) 115 Cal.App.2d 131, 135 [ 251 P.2d 396 ].) There was evidence as to Mr. Patterson’s financial condition at the beginning of the marriage of the parties and also at the time of their separation as well as to his aggregate income over the intervening period of 10 years or more.
discussed Cited as authority (rule) Patterson v. Missler
Cal. Ct. App. · 1965 · confidence medium
(Estate of Arstein, 56 Cal.2d 239, 240-241 [ 14 Cal.Rptr. 809 , 364 P.2d 33 ]; White v. Kanrich, 201 Cal.App.2d 356, 358 [ 20 Cal.Rptr. 37 ]; Pores v. Purity Milk Co., 135 Cal.App.2d 305, 309 [ 287 P.2d 169 ].) In addition, the finding of insolvency also is supported by the testimony of the president of Wright that its assets were not sufficient to pay its debts when they became due.
discussed Cited as authority (rule) Carey v. Glenco Citrus Products
Cal. Ct. App. · 1965 · confidence medium
(Estate of Arstein, 56 Cal.2d 239, 241 [ 14 Cal.Rptr. 809 , 364 P.2d 33 ] ; Cottle v. Gibbon, 200 Cal.App.2d 1, 6 [ 19 Cal.Rptr. 82 ] ; Pores v. Purity Milk Co., 135 Cal.App.2d 305, 309 [ 287 P.2d 169 ].) If the controversy at bench had been between Glenco and Capitol Estates, the conclusion that the former obtained the interest in the orange crop conveyed by the sale agreement would have been beyond question.
discussed Cited as authority (rule) Marshall v. Marshall
Cal. Ct. App. · 1965 · confidence medium
“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 the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.” (Primm v. Primm (1956) 46 Cal.2d 690, 693 [ 299 P.2d 231 ]; Estate of Arstein (1961) 56 Cal.2d 239, 240 [ 14 Cal.Rptr. 809 , 364 P.2d 33 ]; Estate of Bristol (1943) 23 Cal.2d 221, 223 [ 143 P.2d 689 ] ; Crawford v. Southern Pac.
discussed Cited as authority (rule) People v. Pacheco
Cal. Ct. App. · 1963 · confidence medium
(Estate of Arstein, 56 Cal.2d 239, 241 [ 14 Cal.Rptr. 809 , 364 P.2d 33 ]; Fomco, Inc. v. Joe Maggio, Inc., 55 Cal.2d 162, 164 [ 10 Cal.Rptr. 462 , 358 P.2d 918 ]; People v. Chapman, 207 Cal.App.2d 557, 574 [24 Cal.Rptr. 568]; Cottle v. Gibbon, 200 Cal.App.2d 1, 6 [ 19 Cal.Rptr. 82 ]; Edwards v. Container Kraft Carton etc. Co., 161 Cal.App.2d 752, 756 [ 327 P.2d 622 ].) We have reviewed the record in the light of defendant’s objections and conclude that the comments made by the court did not constitute an abuse of its discretion, and were not error.
discussed Cited as authority (rule) Walton v. Bank of California, National Ass'n
Cal. Ct. App. · 1963 · confidence medium
Out of sheer necessity we restate it: “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 the determination as to whether there is any substantial evidence contradicted or uncontradieted which will support the finding of fact.” (Primm v. Primm (1956) 46 Cal.2d 690, 693 [ 299 P.2d 231 ]; Estate of Arstein (1961) 56 Cal.2d 239, 240 [ 14 Cal.Rptr. 809 , 364 P.2d 33 ]; Estate of Bristol (1943) 23 Cal.2d 221, 223 [ 143 P.2d 689 ]; Crawford v. Southern Pac.
discussed Cited as authority (rule) Price v. Price (2×)
Cal. Ct. App. · 1963 · confidence medium
If a finding of fact is based upon any substantial evidence in the record, whether it be direct or indirect, contradicted or uncontradieted, it is binding upon a reviewing court (Estate of Arstein, 56 Cal.2d 239, 240 [ 14 Cal.Rptr. 809 , 364 P.2d 33 ] ; Primm v. Primm, 46 Cal.2d 690, 693 [ 299 P.2d 231 ] ; Hicks v. Hicks, 211 Cal.App.2d 144, 149 [ 27 Cal.Rptr. 307 ]).
cited Cited as authority (rule) Bradford v. Winter
Cal. Ct. App. · 1963 · confidence medium
Co., 3 Cal.2d 427, 429 [ 45 P.2d 183 ]; Estate of Arstein, 56 Cal.2d 239, 240 [ 14 Cal.Rptr. 809 , 364 P.2d 33 ]), the facts appear to be as follows.
discussed Cited as authority (rule) Gonzales v. County of Merced
Cal. Ct. App. · 1963 · confidence medium
This court is bound by the familiar rules as to supporting the findings of the trial court, that it is the burden of appellant to show such a lack of substantial facts in the record that there is no ground upon which the trial court could have based any reasonable inference in support of its *763 finding (Kirchnavy v. Levet, 127 Cal.App.2d 586, 588 [ 274 P.2d 161 ]; Endo v. State Board of Equalization, 143 Cal.App. 2d 395, 399 [ 300 P.2d 366 ]; Estate of Arstein, 56 Cal.2d 239, 240 [ 14 Cal.Rptr. 809 , 364 P.2d 33 ]; and Estate of Good-hew, 174 Cal.App.2d 75, 79 [ 344 P.2d 63 ]); and that any …
discussed Cited as authority (rule) Sandell, Inc. v. Bailey
Cal. Ct. App. · 1963 · confidence medium
This court is bound by the familiar rules as to supporting the findings of the trial court, that it is the burden of appellant to show such a lack of substantial facts in the record that there is no ground upon which the trial court could have based any reasonable inference in support of its finding (Kirchnavy v. Levet, 127 Cal.App.2d 586, 588 [ 274 P.2d 161 ] ; Endo v. State Board of Equalization, 143 Cal.App.2d 395, 399 [ 300 P.2d 366 ]; Estate of Arstein, 56 Cal.2d 239, 240 [14 Cal. *927 Rptr. 809, 364 P.2d 33 ]; Estate of Goodhew, 174 Cal.App.2d 75, 79 [ 344 P.2d 63]); that if there is a c…
discussed Cited as authority (rule) Cowan v. Bunce
Cal. Ct. App. · 1963 · confidence medium
Without detailing the evidence, which we are not required to do (Estate of Arstein, 56 Cal.2d 239, 241 [ 14 Cal.Rptr. 809 , 364 P.2d 33 ] ; Estate of Updegraph, 199 Cal.App.2d 419, 424 [ 18 Cal.Rptr. 591 ]; Pores v. Purity Milk Co., 135 Cal.App.2d 305, 309 [ 287 P.2d 169 ]), our review of the record forces the conclusion that the issues of intoxication and willful misconduct were determinable by the jury as questions of fact.
discussed Cited as authority (rule) Hicks v. Hicks
Cal. Ct. App. · 1962 · confidence medium
At this juncture it is proper to indicate that if there is any substantial evidence in the record to sustain a finding of fact which supports the judgment, whether it be direct or indirect, contradicted or uncontradicted, the fact in question must be accepted as true by the appellate court (Estate of Arstein, 56 Cal.2d 239, 240 [ 14 Cal.Rptr. 809 , 364 P.2d 33 ] ; Primm v. Primm, 46 Cal.2d 690, 693 [ 299 P.2d 231 ]) ; that all inferences reasonably dedueible from the evidence which support the judgment will be accepted, while those which do not support it will be rejected (Hamilton v. Pacific …
cited Cited as authority (rule) McNeely v. Claremont Management Co.
Cal. Ct. App. · 1962 · confidence medium
(Estate of Arstein, 56 Cal.2d 239, 240 [ 14 Cal.Rptr. 809 , 364 P.2d 33 ].) Thus, we look to the record for substantial evidence, and we find it in abundance.
cited Cited as authority (rule) Sierad v. Lilly
Cal. Ct. App. · 1962 · confidence medium
(Estate of Arstein, 56 Cal.2d 239, 240 [1] [ 14 Cal.Rptr. 809 , 364 P.2d 33 ].) Constructive Eviction Defendant first contends that there was no evidence of any constructive eviction by defendant.
discussed Cited as authority (rule) Estate of Neilson (2×)
Cal. · 1962 · confidence medium
(Pereira v. Pereira, supra ; Estate of Arstein, 56 Cal.2d 239, 241 [ 14 Cal.Rptr. 809 , 364 P.2d 33 ] ; Randolph v. Randolph, 118 Cal.App.2d 584, 587 [ 258 P.2d 547 ] ; Stice v. Stice, 81 Cal.App.2d 792, 796 [ 185 P.2d 402 ].) “Only when the profits and accruals actually attributable to the separate property are proved to differ from [the usual interest rate for a well-secured investment] ... is there reason to depart from this system.” (Randolph v. Randolph, supra.) Departures from the Pereira formula have been made when the husband introduced evidence that “a larger return on his capit…
discussed Cited as authority (rule) Harris v. Trinity Lodge
Cal. Ct. App. · 1962 · confidence medium
It is well settled that “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 uncontradicted, which will support the finding of fact.” (Estate of Arstein, 56 Cal.2d 239, 240 [ 14 Cal.Rptr. 809 , 364 P.2d 33 ].) This contention of appellant cannot be sustained.
discussed Cited as authority (rule) Updegraph v. Gerling
Cal. Ct. App. · 1962 · confidence medium
(Estate of Arstein, 56 Cal.2d 239, 241 [ 14 Cal.Rptr. 809 , 364 P.2d 33 ]; Estate of Ades, 81 Cal.App.2d 334, 339 [ 184 P.2d 1 ].) The evidence indicates that although Mr. Updegraph was working after his marriage, the amount of his earnings together with the value of any services he may have rendered in the operation of his orange grove, were wholly inadequate to defray the normal household expenses of a husband and wife.
Retrieving the full opinion text from the archive…
Estate of MEYER A. ARSTEIN, GERTRUDE H. ARSTEIN, and
v.
UNION BANK, as Trustee, etc., Objectors and
L. A. No. 25956.
California Supreme Court.
Jul 20, 1961.
364 P.2d 33
1961 Cal. LEXIS 288
McComb.
Cited by 34 opinions  |  Published
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[*241] 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[*242] 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.

[*243] 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.]

[*244]

[*245]

[*246]

[*247]

A summary of some of the evidence sustaining the findings of the trial court is set forth in an appendix to this opinion.