## Facts

- Marshall C. Harris and Susie Almeda Harris married in 1894 and held community property.
- In 1945, Susie executed a will leaving her property to Marshall if he survived her by six months; otherwise to their son, Russell S. Harris.
- In 1948, Susie was adjudged incompetent; Marshall was appointed her guardian and later resigned on March 28, 1957, when Russell became guardian.
- During Susie’s incompetency, Marshall made substantial gratuitous transfers of community personal property to family members (including their grandson Rolland H. Harris).
- From 1950 to March 28, 1957, Marshall made gifts totaling about $29,543.76; after March 28, 1957, he made additional transfers (including stock and other assets) valued by the trial court at $26,665.89 (stock assigned no value).
- Susie lacked capacity to consent to the gifts, and Marshall did not obtain her written consent or court approval.
- Susie died September 26, 1957; Marshall died December 10, 1957.
- Russell, as executor of Susie’s estate, sued the transferees to recover Susie’s one-half interest in the transferred community property under former California Civil Code § 172.

## Issues

1. Whether the statutory right under former California Civil Code § 172 to avoid a husband’s unauthorized gifts of community personal property is extinguished by the wife’s death as a right “personal to the wife.”
2. Whether the executor of the deceased wife’s estate may bring an action to recover the wife’s one-half interest in community property transferred in violation of § 172 after the community is dissolved by death.

## Decision

- The California Supreme Court affirmed the judgment for the executor.
- The court held that the wife’s § 172 avoidance right is a property-based right protecting her present community property interest, not a purely personal right.
- Because it is tied to the wife’s ownership interest, the avoidance claim survives the wife’s death and passes to her estate.
- After dissolution of the community by death, the estate may avoid the unauthorized gift to the extent of the wife’s one-half interest in the transferred community property.

## Legal Principles

- Under former California Civil Code § 172, the managing spouse could not make a gift of community personal property, or dispose of it without valuable consideration, without the other spouse’s written consent.
- Transfers made in violation of § 172 are voidable (not void) at the instance of the nonconsenting spouse.
- If avoidance is pursued while the community exists, the entire gift may be avoided; if pursued after dissolution of the community, avoidance is limited to the nonconsenting spouse’s one-half interest.
- A cause of action to set aside or recover for unauthorized § 172 gifts is a survivable property remedy that may be asserted by the deceased spouse’s executor.

## Conclusion

The court upheld the executor’s standing to recover the decedent wife’s one-half interest in community personal property that the husband gratuitously transferred without the wife’s written consent, ruling that the statutory avoidance right is a survivable property right belonging to the wife’s estate.


Harris v. Harris, 369 P.2d 481 (Cal. 1962)