Stephenson

This is an action brought to quiet title to real property, and the appeal is prosecuted from a judgment in favor of plaintiff.

Plaintiff is the surviving husband of Lucy C. Stephenson, deceased. During the married life of said parties a parcel of real property in San Francisco was conveyed to both of said parties, and stood in their names upon the records. It is admitted that said property was purchased with community funds. Respondent contends that upon the death of his wife the title to said property vested absolutely in him. Appellant, who is the only child of Lucy C. Stephenson by a former marriage, claims that the title vested in the parties as tenants in common, and that she has an interest therein as the sole heir of her mother, who died intestate.

Section 164 of the Civil Code provides that property “if acquired by such married woman and her husband, or by her and any other person, the presumption is that she takes the part acquired by her, as tenant in common, unless a different intention is expressed in the instrument”. This presumption is disputable in a case of this character (5 Cal. Jur., p. 321, and cases cited), and any competent evidence, oral or otherwise,…