Filed 8/4/21; Modified and certified for pub. 8/31/21 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

EVERETT EARLE PEARCE, JR., as Trustee, 

etc. et al., 

Plaintiffs and Appellants,

v.

CHARLES BRIGGS, JR., Individually and as 

Trustee, etc. et al., 

Objectors and Respondents.

F080403

(Super. Ct. No. S1501PB60869)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Andrew B. 

Kendall, Commissioner.

Darling & Wilson, Joshua G. Wilson, Anton H. Labrentz, and Nathaniel J. Oleson, 

for Plaintiffs and Appellants. 

LeBeau-Thelen and Andrew K. Sheffield, for Objectors 

and Respondents.

-ooOoo-
2.

This is a probate matter involving two groups of rival claimants regarding two 

parcels of real property in Bakersfield. Each group of claimants filed a petition to 

establish their claims on the properties, and opposed the petition filed by the other group. 

Both petitions were tried concurrently in a bench trial, resulting in a ruling and judgment 

in favor of one group of claimants as to both properties. We affirm the trial court’s ruling 

and judgment.

PROCEDURAL BACKGROUND

The underlying judgment encompasses two probate petitions. The first petition 

was filed on April 26, 2011, by the appellants in this matter, Everett Earle Pearce, Jr., and 

Flora Geraldene Crawford (collectively, Pearce Parties), and was entitled “Petition to 

Determine Title to Property and Compel its Return and Transfer to Court Appointed 

Personal Representative of Ruth L. Briggs; Double Damages Under Probate Code § 859.” 

The Pearce Parties supplemented the petition on July 25, 2011 and September 14, 2011. 

The probate court granted a motion for judgment on the pleadings filed by the parties 

objecting to the petition (see below). The Pearce Parties thereafter filed, on August 26, 

2014, the operative “Amended Petition to Determine Title to Property and Compel its 

Return and Transfer to a Court Appointed Personal Representative of Ruth L. Briggs; 

Double Damages Under Probate Code § 859” (Pearce Petition). The Pearce Petition 

involved two parcels of real property in Bakersfield referred to in the proceedings below 

as the “Gibson property”1 and the “Rosedale property.”2 The Pearce Petition sought 

confirmation of title in both the Gibson and Rosedale properties on behalf of the Estate of 

Ruth L. Briggs, in which estate the Pearce Parties had an interest. 

1 The Gibson property was a single parcel located at 2620, 2630, 2720, 2730, 2740, 

2740B and 2750 Gibson Street, Bakersfield. 

2 The Rosedale property was located at 3940 Rosedale Highway, Bakersfield. 
3.

The parties objecting to the Pearce Petition were Charles J. Briggs, Jr., and 

Margaret Briggs Arroyo, individually and in their capacities as trustees of the Charles 

John Briggs Individual Living Trust Dated December 13, 1995, and Teresa Briggs 

Schwerdt. On November 30, 2015, Charles J. Briggs, Jr., and Margaret Briggs Arroyo 

(collectively, Briggs Parties), in their capacities as trustees of the Charles John Briggs 

Individual Living Trust Dated December 13, 1995, filed a petition entitled “Petition to 

Establish the Charles John Briggs Individual Living Trust Dated December 13, 1995’s 

Claim of Ownership” (Briggs Petition). The Briggs Petition sought to quiet title to the 

Gibson and Rosedale properties in the name of the Charles John Briggs Individual Living 

Trust Dated December 13, 1995. The Pearce Parties objected to the Briggs Petition. 

The Pearce Petition and Briggs Petition were tried concurrently in a bench trial. 

The evidentiary phase of the trial occurred over four afternoons in February 2019 

(February 19, 20, 21, and 28, 2019). The Pearce Parties presented their case first, calling 

as witnesses, Everett Earle Pearce, Jr., and Flora Geraldene Crawford. Thereafter, the 

Briggs Parties called their witnesses, namely, Melissa Briggs (wife of Charles J. Briggs, 

Jr.), and Margaret Briggs Arroyo. The Pearce Parties then recalled Everett Earle Pearce, 

Jr., and, thereafter, the Briggs Parties recalled Margaret Briggs Arroyo. Following the 

evidentiary phase of the trial, the parties submitted closing briefs. Subsequently, on May 

15, 2019, the trial court heard oral closing arguments. 

On July 29, 2019, the trial court issued a “Ruling on Court Trial.” The trial court 

denied the Pearce Petition and granted the Briggs Petition. The Pearce Parties requested 

a statement of decision. On November 4, 2019, the trial court issued a “Final Amended 

Statement of Decision” (statement of decision) regarding the Pearce and Briggs Petitions. 

On the same date, the court entered a “Judgment After Trial,” denying the Pearce Petition 

and granting the Briggs Petition. The Pearce Parties subsequently filed the instant appeal 

challenging the court’s denial of the Pearce Petition. 
4.

FACTS ESTABLISHED AT TRIAL

The trial court, based on the evidence presented at trial, made relevant findings of 

fact as reflected in its statement of decision. These findings of fact are related, essentially 

verbatim, in the parties’ briefs, as the (undisputed) facts underpinning the claims at issue 

on appeal. We will therefore delineate below the trial court’s findings of fact as reflected 

in its statement of decision.

Ruth Briggs (Ruth) married Charles John Briggs, Sr., on February 2, 1949 

(Charles John Briggs, Sr., was known as Jack; he was referred to as Jack in the 

proceedings below, and we will refer to him interchangeably as Jack or Charles John 

Briggs, hereafter). 

At the time of the marriage, Ruth already had two biological children, Everett 

Earle Pearce, Jr. (Earle) and Flora Geraldene Crawford (Geri). After they married, Ruth 

and Jack adopted three children: Margaret Briggs (Margaret or Margaret Briggs Arroyo), 

Charles John Briggs, Jr. (John), and Teresa Briggs (Teresa or Teresa Briggs Schwerdt). 

On August 12, 1955, Briggs Oil Co., a 50-50 general partnership between Jack 

and his brother, Tom Briggs, bought the property located at 3940 Rosedale Highway, 

Bakersfield (the Rosedale property). (The question of whether the partnership itself was 

formed before or after the marriage of Ruth and Jack was not resolved at trial.)

On October 30, 1959, Ruth and Jack bought the Gibson property and took title as 

joint tenants. On May 6, 1980, Ruth and Jack conveyed an undivided 12.5 percent 

interest in the Gibson property to Jack’s sister, Marie Schweifler, leaving Ruth and Jack 

with an 87.5 percent interest held in joint tenancy.

On September 8, 1983, Ruth executed a will (Ruth’s will or Ruth’s 1983 will) 

prepared by attorney Thomas Underhill. Ruth’s will created an “A” trust and a “B” trust 

and ultimately provided for equal distribution of her estate to each of her five children 

after the death of Jack. Ruth’s will included a provision stating that all property owned 
5.

by Jack and her, including property to which they held title in joint tenancy, was intended 

to be their community property, and that her community property share was to be 

distributed according to the provisions in her will. Jack was named as executor of Ruth’s 

estate in Ruth’s will. 

On April 1, 1988, Ruth died. Thereafter, Underhill told Jack that he should 

probate Ruth’s will, but Jack refused. On November 15, 1988, Jack executed a will 

prepared by Underhill. The will left Jack’s estate to the five children in equal shares. A 

copy of this will was provided to Geri (one of the Pearce Parties) in 1988. Jack also 

executed an affidavit of death of joint tenant concerning the Gibson property and 

recorded it on January 30, 1989, against the advice of Underhill, who was of the view 

that doing so would violate Ruth’s will.

On February 7, 1989, Jack and his brother, Tom, dissolved Briggs Oil Co. and 

each partner received a 50 percent interest as tenants in common in the Rosedale property 

by recorded deed.

On December 13, 1995, Jack created the Charles John Briggs Individual Living 

Trust (Jack’s 1995 trust). Jack named himself as trustee and Margaret and John as 

successor trustees. Under the trust, Margaret, John, and Teresa were each one-third equal 

residual beneficiaries; Earle and Geri were not beneficiaries of the trust. In 1995, Jack 

also revoked his prior wills and executed a pour over will leaving any residual estate 

assets to his trust. 

On January 9, 1996, Jack recorded deeds with Kern County conveying his 50 

percent interest in the Rosedale property and his interest in the Gibson property to his 

1995 trust. (Jack had signed, on December 13, 1995, the deeds transferring to the trust 

his interest in the Rosedale property and the Gibson property.) Since the transfer, Jack, 

and/or Jack’s trust, maintained possession of the properties and paid all the property taxes 

thereon. 
6.

On April 27, 2010, Jack died. On April 26, 2011, the Pearce Parties filed their 

original petition to determine title to the Gibson and Rosedale properties and compel their 

return to Ruth’s estate. The Pearce parties filed an amended petition (the instant Pearce 

Petition) on August 26, 2014. In the Pearce Petition, the Pearce Parties admitted they 

were aware of Jack’s 1988 will, his failure to establish the “A” trust and the “B” trust 

under Ruth’s 1983 will, and his failure to probate Ruth’s will, but claimed they had no 

knowledge of Jack’s 1995 trust or 1995 will that eliminated them as beneficiaries of 

Jack’s estate. Stipulated facts admitted in this matter also established that Ruth Briggs or 

the Pearce Parties were never in possession of the Gibson or Rosedale properties and 

further that they never paid the taxes on the Gibson or Rosedale properties. 

Based on its findings of fact, the trial court ruled that the Pearce Parties failed to 

establish that Ruth’s estate held a property interest in either the Gibson property or the 

Rosedale property and that the claims set forth in the Pearce Petition were time barred. 

The trial court also found that the Briggs Parties established legal title to both the Gibson 

and Rosedale properties and that the Pearce Parties failed to rebut the legal presumptions 

flowing from legal title. 

DISCUSSION

The trial court denied the Pearce Petition on multiple grounds, including:

1. Ruth’s will did not sever the joint tenancy held by Ruth and Jack in the 

Gibson property;

2. Ruth’s estate did not have an interest in the Rosedale property;

3. The claims relating to Ruth’s interest in the Briggs Oil Co. partnership were 

barred by the statute of limitations in Code of Civil Procedure section 338;3 and

3

 All undesignated statutory references are to the Code of Civil Procedure. 
7.

4. All claims seeking to recover interests in the Gibson and Rosedale 

properties were barred by the statutes of limitation in sections 318 and 319. 

“ ‘In reviewing a judgment based upon a statement of decision following a bench 

trial, we review questions of law de novo. [Citation.] We apply a substantial evidence 

standard of review to the trial court’s findings of fact.’ ” (Veiseh v. Stapp (2019) 35 

Cal.App.5th 1099, 1104, quoting Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.) 

Resolution of a statute of limitations issue is normally a question of fact. (Jolly v. Eli 

Lilly & Co. (1988) 44 Cal.3d 1103, 1112.) “The trial court’s finding on the accrual of a 

cause of action for statute of limitations is upheld on appeal if supported by substantial 

evidence.” (Institoris v. City of Los Angeles (1989) 210 Cal.App.3d 10, 17.) 

We affirm the trial court’s rulings and the judgment rendered in the trial court.

I. Ruth’s Estate is not Vested with a 43.75 Percent Interest in the Gibson 

Property

The trial court addressed the question whether Ruth’s estate retained a property 

interest in the Gibson property. The Pearce Parties contended that Ruth’s 1983 will had 

severed the joint tenancy between Ruth and Jack as to the Gibson property, rendering 

Ruth and Jack tenants in common as to this property.

The trial court ruled: “As to the Gibson property, the court finds that Ruth’s Will 

did not sever the joint tenancy in the property. The court also finds no substantial 

evidence to support [a conclusion] that Jack and Ruth agreed to hold the property as 

community property.” 

On appeal, the Pearce Parties resurrect their contentions to the effect that Ruth’s 

estate is vested with a 43.75 percent interest in the Gibson property because “Ruth 

severed the joint tenancy with Jack in her 1983 will leaving her an undivided 43.75 
8.

percent tenant in common with Jack.”4 The Pearce Parties note: “The severance of a 

joint tenancy converts the form of co-ownership to a tenancy in common allowing Ruth 

to dispose of her half by will. (Zanelli v. McGrath (2008) 166 Cal.App.4th 615, 631.)” 

The Pearce Parties further argue: “Jack’s subsequent recording of an affidavit of death of 

a joint tenant and his later conveyances failed to transfer Ruth’s interest that he did not 

own ... and Ruth’s estate remains the vested owner of an undivided 43.75 percent interest 

in the Gibson property.” The Pearce Parties urge: “The trial court’s conclusion to the 

contrary is error and must be reversed.” We affirm the trial court’s determination. 

A. Factual Background

Here, the parties agree that Ruth and Jack acquired the Gibson property as joint 

tenants on October 30, 1959. The distinctive aspect of joint tenancy is the right of the 

surviving joint tenant to succeed to the interest of the deceased tenant. (Estate of Gebert

(1979) 95 Cal.App.3d 370, 376; Zanelli v. McGrath, supra, 166 Cal.App.4th at p. 630 

[“The right of survivorship is the distinguishing feature of a joint tenancy.”].) The 

deceased joint tenant’s interest in the property held in joint tenancy vests automatically in 

the surviving joint tenant by operation of law. (Grothe v. Cortlandt Corp. (1992) 11 

Cal.App.4th 1313, 1317; Zanelli v. McGrath, supra, at p. 630.) “Nothing ‘passes’ from 

the deceased joint tenant to the survivor; rather, the survivor takes from the instrument by 

which the joint tenancy was created.” (Grothe v. Cortlandt Corp., supra, at p. 1317.) 

The fact that Ruth and Jack held title to the Gibson property as joint tenants was 

established by a written instrument in the form of a grant deed that was admitted as an 

exhibit at trial. (Ex. 14.) (As noted above, the couple deeded away 12.5 percent of their 

interest on May 6, 1980, leaving them with an 87.5 percent interest in the property, held 

4 Ruth and Jack acquired the Gibson property as joint tenants on October 30, 1959. 

The couple deeded away 12.5 percent of their interest on May 6, 1980, leaving them with 

an 87.5 percent interest in the property. 
9.

in joint tenancy.) (Ex. 15.) Jack held title to the Gibson property under the joint tenancy 

deed from 1959 until he transferred it to his living trust in 1995. (Ex. 24.) After Ruth 

died, Jack claimed title as the surviving joint tenant in 1989, by filing an affidavit of 

death of joint tenant that dropped Ruth from the title.5 (Ex. 19.) 

Turning to Ruth’s 1983 will, the parties agree the will was never probated and its 

legality as a will was therefore never established. (See In re Estate of Burnett (1935) 6 

Cal.App.2d 116, 123 [“a probate court ha[s] no power to consider the legality of a will 

until it was regularly brought before it by a petition for its probate”], accord Estate of 

Olson (1962) 200 Cal.App.2d 234, 237; Bohn v. Smith (1967) 252 Cal.App.2d 678, 682 

[the validity of a will may be determined only in the manner provided by the Probate 

Code].) The trial court admitted Ruth’s 1983 will into evidence over the objection, on 

grounds the will was never admitted to probate, of the Briggs Parties. (Ex. 11; see Adams 

v. Lansing (1861) 17 Cal. 629, 641.) 

Ruth’s 1983 will, provided, in Article THIRD:

“I declare that for convenience or through inadvertence title to some 

property owned by myself and my husband may be held of record in the 

form of joint tenancy, but that all such property is in fact intended to be our 

community property. I hereby confirm unto my husband his one half 

interest in our community property. It is my intention to dispose of all my 

property of any nature, tangible or intangible, real or personal, and 

wheresoever situate, of which I have the power to make a testamentary 

disposition.” 

Ruth’s will then specified that Ruth’s assets were to be held in trust for the benefit of 

Jack and, upon his death, for the benefit of her children, until, 10 years after the death of 

Jack, the assets were to be distributed in equal shares to her five children. 

5

In filing an affidavit of death of a joint tenant with respect to the Gibson property, 

Jack placed in the real property record the fact of Ruth’s death and thereby satisfied a 

condition subsequent in the relevant instrument, the joint tenancy deed, under which the 

joint tenants had acquired their interest. (Prob. Code, §§ 210, 212.)
10.

During the trial in this matter, portions of the deposition transcript of Thomas 

Underhill, the attorney who prepared Ruth’s will, were read into the record by counsel for 

the Pearce Parties; the deposition occurred on July 13, 2012. (Ex. 40.) In his deposition, 

Underhill stated that he was of the “opinion” that Ruth’s will had severed the joint 

tenancy in the Gibson property.6 Underhill, however, did not explicitly clarify when the 

severance would have occurred: at the time of execution of the will or upon Ruth’s 

death. Underhill also stated in his deposition that he had prepared wills for Ruth and Jack 

in 1983 and another will for Jack on November 15, 1988 (after Ruth’s death); however, 

no 1983 will for Jack was in evidence. 

B. The Trial Court’s Ruling

Regarding the Gibson property, the trial court ruled, as reflected in its statement of 

decision: “As to the Gibson property, the court finds that Ruth’s Will did not sever the 

joint tenancy in the property. The court also finds no substantial evidence to support [a 

conclusion] that Jack and Ruth agreed to hold the property as community property.” 

The court explained its ruling:

“The Pearce parties urged this court not to think of Ruth’s Will 

merely as a will, but rather as both a will and a separate severance of the 

joint tenancy. However, there is an inconsistency in Pearce’s argument. 

On the one hand, if the court does not treat it as a will, then the severance 

occurred immediately upon execution of the document. That position is not 

legally tenable, because if the conversion from joint tenancy to tenants in 

common occurred immediately upon execution, then the executed 

document was irrevocable. But the document is also a will. Wills may be 

revoked at any time simply by drafting a new will. (See Prob. Code, 

§ 6120.) Nothing in Ruth’s Will contains language stating the purported 

severance is irrevocable. On the other hand, if the severance occurred upon 

6 Underhill was sued, for malpractice, by the Pearce Parties, in the instant action; 

the claims against Underhill were transferred from the superior court’s probate 

department to the civil department. Underhill and the Pearce parties reached a settlement 

to resolve the claims against Underhill, before the instant trial occurred. Geri testified at 

trial that Underhill paid a sum of money to Earle and Geri as part of the settlement. 
11.

Ruth’s death, then the court must treat the document as a will. But, as of 

the time of Ruth’s death in 1988, the law provided that an unrecorded will 

could not serve as a severance of a joint tenancy. (See Estate of England

(1991) 233 Cal.App.3d 1; Civ. Code, § 683.2(c).) 

“There is a rebuttable presumption that upon the death of a spouse, 

the character of real property owned by the couple is as set forth in the 

deed. (Estate of Levine (1981) 125 Cal.App.3d 701, 705; Evid. Code, 

§ 662.) To rebut the presumption, the opposing party must show that the 

character of the property was held differently, including by establishing that 

the property’s character was changed by an agreement or mutual 

understanding between the spouses. (Socol v. King (1950) 36 Cal.2d 342, 

345-347; Estate of Gallio (1995) 33 Cal.App.4th 592, 596.) ‘However, 

there must be an agreement of some sort; the presumption may not be 

overcome by testimony about the hidden intention of one spouse, 

undisclosed to the other spouse at the time of the conveyance.’ (Levine, 

supra, at p. 705, emphasis in original; see also Edwards v. Deitrich (1953) 

118 Cal.App.2d 254, 260-262 [[fact] that one party expresses intent in will 

to convert character of property does not rebut presumption raised by form 

of deed].)

“Here, there was insufficient evidence that at the time they acquired 

the Gibson property, Jack and Ruth mutually agreed to hold the property as 

community property, or that Jack consented to transmute the Gibson 

property from joint tenancy to community property.” 

C. Analysis of Claims Regarding Gibson Property

1. Ruth’s Will Did Not Sever the Joint Tenancy in the Gibson 

Property Under Civil Code Section 683.2, Subdivision (a)(2)

The Pearce Parties challenge the trial court’s ruling as to the Gibson property in 

only one respect. They argue that Ruth’s 1983 will, severed the joint tenancy in the 

Gibson property as of the time of execution of the will in 1983. They argue that a will 

can have a dual character in that it “may be a will and something else at the same time.” 

They further argue that Ruth’s will must be interpreted such that it severed the joint 

tenancy in the Gibson property “immediate[ly] upon execution of the instrument in order 

to permit the will to dispose of Ruth’s property under the will.” They point out that “[a] 

testator has no power to dispose of joint tenancy property by a will.” (See Estate of 
12.

England (1991) 233 Cal.App.3d 1, 4 [an interest in a joint tenancy cannot be devised by 

will]; Guardianship of Wood (1961) 193 Cal.App.2d 260, 267 [“property held in joint 

tenancy is not subject to administration in the decedent’s estate”]; Prob. Code, § 21105 [a 

will passes all property owned by the testator at death]; Prob. Code, § 6600, subd. (b)(1).) 

The Pearce Parties’ argument has a surface appeal, but it does not withstand 

scrutiny. The operative language in Ruth’s will is as follows: “I declare that for 

convenience or through inadvertence title to some property owned by myself and my 

husband may be held of record in the form of joint tenancy, but that all such property is 

in fact intended to be our community property.” This language does not reflect a clear 

and unequivocal intent, on Ruth’s part, to sever the joint tenancy in the Gibson property 

at the time of execution of the will. In this context we note, without suggesting that any 

one or all of these factors are necessarily dispositive, that the language at issue is 

nonspecific, it does not refer to any particular property, and it does not clearly provide 

that Ruth intended a unilateral severance of joint tenancy in co-owned properties to be 

irrevocable during her lifetime and to take immediate effect. 

The Pearce Parties’ argument that Ruth’s will severed the joint tenancy in the 

property relies upon factually distinguishable cases holding that a will may be dual in 

character. (See, e.g., In Re: Estate of Watkins (1940) 16 Cal.2d 793, 797 [a single written 

instrument, i.e., the joint and mutual will of a couple, constituted both a will and a 

contract, and the contract amounted to an agreement that certain properties they held in 

joint tenancy would be transmuted to community property]; Van Houten v. Whitaker

(1959) 169 Cal.App.2d 510, 515-518 [joint will of two spouses was contractual in nature 

and hence constituted an agreement, as to property they held in joint tenancy, to sever the 

joint tenancy and transmute the property into community property].) While the Pearce 

Parties are correct in asserting that a part of a “will”—for example a contract appended in 

a will—can be effective immediately upon execution, the cited cases are clearly 
13.

distinguishable because they deal with joint wills that are contractual in nature. In other 

words, the wills at issue in these cases contained contracts that, as such, reflected an 

unequivocal intent, on the part of the joint tenants, to sever their joint tenancy in certain 

property and transmute it to community property upon execution of the contract. 

Estate of Powell (2000) 83 Cal.App.4th 1434, 1441-1443, another case cited by 

the Pearce Parties, is similarly distinguishable as it involved a trust agreement signed by 

both joint tenants, which agreement reflected a clear intent to sever joint tenancy in a 

property when the property was conveyed to the trust and made subject to the trust’s 

terms. Finally, the Pearce Parties rely on Adams v. Lansing, supra, 17 Cal. at pages 636-

637, another case that is factually distinguishable. Adams v. Lansing involved an 

instrument styled as a will, under which a father devised various types of property to his 

children, and also referenced ranch lands he had previously gifted to his sons. The 

dispute at issue in the case pertained to the title to the ranch lands previously gifted to the 

sons. Adams v. Lansing held that “[t]he same instrument may operate both as a 

conveyance and as a will or devise, in regard to different pieces of property.” (Id. at p. 

640.) As to the ranch lands, title to which was disputed, Adams v. Lansing concluded: 

“The language used [in the instrument] was equivalent to saying, I have [previously] 

given these lands in certain proportions to my sons, and I hereby confirm and ratify the 

gift. There is no doubt that this was sufficient to pass the title, and it is clear that a 

testamentary disposition was not contemplated [as to these lands]. The intention was to 

vest the title immediately in the sons [as the lands had already been gifted to them], and it 

is of no consequence that the instrument professes on its face to be a will. The same 

instrument may operate both as a conveyance and as a will or devise, in regard to 

different pieces of property.” (Id. at p. 640.) While we recognize Adams v. Lansing

stands for the general principle that the same instrument may serve to effectuate multiple 

purposes, the factual context of that case, in which the disputed lands had already been 
14.

gifted prior to the execution of the instrument, bears no relation to the factual context of 

the present matter, to which we now turn.

A will that unilaterally purports to sever a joint tenancy encompasses the potential 

for fraud or duplicity, which is the precise concern that arises here. (See, e.g., Estate of 

England, supra, 233 Cal.App.3d at p. 6.) The operative language in Ruth’s will appears 

to be mere boilerplate designed to protect her whether she predeceased Jack or whether 

Jack predeceased her. The vagueness of the language, and the fact that it was included in 

a will (or an ostensible will), appears designed to ensure that, were Jack to predecease 

Ruth, Ruth would not be precluded, upon filing an affidavit of death of joint tenant, from 

gaining title to any property jointly held by Ruth and Jack under a joint tenancy deed. 

Indeed, in a circumstance where Jack were poised to predecease Ruth, Ruth would 

unreservedly be entitled to draft a new will and to thereby revoke her 1983 will and the 

purported severance of joint tenancy in relation to unnamed properties jointly owned by 

her and Jack. (See Prob. Code, § 6120; Cook v. Cook (1941) 17 Cal.2d 639, 646 [“A will 

does not become operative until death; prior to death it is revocable at the whim of the 

testator, and the objects of the testator’s bounty have no vested rights.”].) Accordingly, 

like the trial court, we conclude, based on the operative language in Ruth’s 1983 will and 

its inclusion in a will or an ostensible will, that the instrument did not reflect an 

unequivocal intent to irrevocably sever the joint tenancy in the Gibson property upon its 

execution, and, in turn, did not effectuate an immediate severance.

The Pearce Parties point to Civil Code section 683.2, subdivision (a)(2), which 

authorizes a joint tenant to unilaterally sever a joint tenancy by executing a written 

instrument evidencing such intent. Civil Code section 683.2 provides in relevant part:

“(a) Subject to the limitations and requirements of this section, in addition 

to any other means by which a joint tenancy may be severed, a joint tenant 

may sever a joint tenancy in real property as to the other joint tenant’s 
15.

interest without the joinder or consent of the other joint tenants by any of 

the following means: 

[¶] ... [¶]

“(2) Execution of a written instrument that evidences the intent to sever the 

joint tenancy, including a deed that names the joint tenant as transferee, or 

of a written declaration that, as to the interest of the joint tenant, the joint 

tenancy is severed.”

In 1985, the Legislature amended Civil Code section 683.2 to impose an additional 

requirement, i.e., recordation, for written instruments executed to sever joint tenancies. 

Specifically, the Legislature added Civil Code section 683.2, subdivision (c), which 

provides, in relevant part: 

“(c) Severance of a joint tenancy of record by deed, written declaration, or 

other written instrument pursuant to subdivision (a) is not effective to 

terminate the right of survivorship of the other joint tenants as to the 

severing joint tenant’s interest unless one of the following requirements is 

satisfied:

“(1) Before the death of the severing joint tenant, the deed, written 

declaration, or other written instrument effecting the severance is recorded 

in the county where the real property is located.

“(2) The deed, written declaration, or other instrument effecting the 

severance is executed and acknowledged before a notary public by the 

severing joint tenant not earlier than three days before the death of that joint 

tenant and is recorded in the county where the real property is located not 

later than seven days after the death of the severing joint tenant.”

However, Civil Code section 683.2 subdivision (e) provides that subdivision (c) does 

“not apply to or affect a severance made before January 1, 1986, of a joint tenancy.” 

It is undisputed that Ruth’s will was not recorded with the County of Kern. The 

Pearce Parties contend that, to the extent Ruth’s will severed the joint tenancy in the 

Gibson property when it was executed in 1983, it was not subject to the recordation 

requirement of Civil Code section 683.2, subdivision (c), as the latter statute applies only 

to severances made after January 1, 1986. (See Civ. Code, § 683.2, subd. (e).) This 
16.

argument is, however, moot, in light of our conclusion, above, that Ruth’s will did not 

reflect an unequivocal intent to sever the joint tenancy in the Gibson property as of the 

time of execution of the will in 1983 and, in turn, did not sever the joint tenancy at that 

point. (See Civ. Code, § 683.2, subd. (a)(2).)

By the time Ruth died in 1988, the requirements of Civil Code section 683.2, 

subdivision (c) were in effect. Thus, to the extent Ruth’s will severed the joint tenancy in 

the Gibson property upon her death in 1988, the severance was ineffective because the 

will was never recorded with the County of Kern, as required for purposes of severing a 

joint tenancy under Civil Code section 683.2, subdivision (c), at the time. (Cook v. Cook, 

supra, 17 Cal.2d at p. 646 [a will does not become operative until death].) 

While we recognize that a testator cannot, by will, dispose of property the testator 

holds in joint tenancy, this fact does not persuade us, in this instance, that the operative 

language in Ruth’s will reflected an unequivocal intent to effectuate—and thereby 

constituted—an immediate and irrevocable severance of the joint tenancy in the Gibson 

property. As for the post hoc deposition statements of Ruth’s attorney, Thomas 

Underhill, they are mere legal conclusions. Here, the operative language is contained in a 

revocable instrument and the operative language itself is nonspecific and open-ended as 

to when it was intended to take effect; furthermore, there is a lack of other indicia—such 

as evidence of notice to Jack—to suggest the operative language was intended to 

constitute an immediate and irrevocable severance of the joint tenancy in the Gibson 

property. Accordingly, we affirm the trial court’s determination that the Pearce Parties’ 

contention that “the severance occurred immediately upon execution of the document” is

not “tenable” on the instant record. 
17.

2. Nor was the Joint Tenancy in the Gibson Property Severed by 

“Other Means,” Unrelated to Ruth’s Will, Under Civil Code 

section 683.2, subdivision (a)7

The joint tenancy in the Gibson property was established by a written instrument 

in the form of the grant deed under which Ruth and Jack took title to the property (the 

deed was admitted into evidence at trial). (Ex. 14.) Estate of England, supra, 233 

Cal.App.3d at page 5 explains: “When determining the nature of real property upon the 

death of one spouse, there is a rebuttable presumption ‘that the property is as described in 

the deed and the burden is on the other party who seeks to rebut the presumption.’ ” 

Estate of England further clarifies: “ ‘The mere fact one of the parties has a mistaken 

belief about the nature of the property, or has an intent uncommunicated to the other 

spouse about converting the property from one form to another, or expresses such an 

intent by will, will not rebut the presumption raised by the form of the deed.’ ” (Ibid., 

italics added.) Here, a presumption exists, in light of the joint tenancy deed of the Gibson 

property, that the property was held in joint tenancy by Ruth and Jack. 

The trial court determined: “Here, there was insufficient evidence that at the time 

they acquired the Gibson property, Jack and Ruth mutually agreed to hold the property as 

community property, or that Jack consented to transmute the Gibson property from joint 

tenancy to community property.” We agree with the trial court. There was no evidence 

of an agreement between Ruth and Jack to sever the joint tenancy and transmute their 

interest in the property to community property; thus, the presumption established by the 

7 Civil Code section 683.2, subdivision (a) provides: “Subject to the limitations and 

requirements of this section, in addition to any other means by which a joint tenancy may 

be severed, a joint tenant may sever a joint tenancy in real property as to the other joint 

tenant’s interest without the joinder or consent of the other joint tenants by ... [¶] (2) 

[e]xecution of a written instrument that evidences the intent to sever the joint tenancy.” 

(Italics added.) 
18.

joint tenancy deed has not been rebutted. (Socol v. King (1950) 36 Cal.2d 342, 345-347 

[“property acquired under a joint tenancy deed may be shown to be actually community 

property or the separate property of one spouse according to the intention, understanding 

or agreement of the parties”]; see In re Brace (2020) 9 Cal.5th 903, 938 [presumption 

flowing from “titling of [a] deed” as joint tenancy is applicable to properties acquired 

before 1985].) Nor did Ruth’s will serve to rebut the presumption of joint tenancy 

established by the joint tenancy deed. (See Edwards v. Deitrich (1953) 118 Cal.App.2d 

254, 260-262 [fact that one party expresses intent in will to convert or transmute 

character of property does not rebut presumption raised by form of deed].) 

Finally, as the trial court noted, Evidence Code section 662 and Code of Civil 

Procedure section 321 are also applicable here. The trial court determined: “The 

uncontested evidence showed that the Charles J. Briggs Individual Living Trust has held 

actual legal title to [the Gibson property] since Jack signed the [deed transferring the 

property to his trust] on December 13, 1995 and recorded [it] on January 9, 1996 [Ex. 

24].” The court further noted: “There is a presumption that the person with legal title 

also has possession of the property and is the beneficial owner. (Code Civ. Proc., § 321; 

Evid. Code, § 662; Tobin v. Stevens (1988) 204 Cal.App.3d 945, 953.)” Finally, the court 

noted: “The presumption may only by overcome by clear and convincing evidence that 

the objecting party has superior title or has obtained title by adverse possession. (Tobin, 

supra, at p. 953; Schoenfeld v. Pritzker (1967) 257 Cal.App.2d 117, 122; Code Civ. 

Proc., § 325.)” The trial court concluded that the Pearce Parties had not rebutted the 

presumptions established by Evidence Code section 662 and Code of Civil Procedure 

section 321. 

On this point too, we agree with the trial court. Evidence Code section 662 

provides: “The owner of the legal title to property is presumed to be the owner of the full 

beneficial title. This presumption may be rebutted only by clear and convincing proof.” 
19.

(See In re Brace, supra, 9 Cal.5th at p. 938 [form of title presumption in Evid. Code, 

§ 662 applies to property acquired during marriage, before 1975].) Section 321 provides: 

“In every action for the recovery of real property, or the possession thereof, the person 

establishing a legal title to the property is presumed to have been possessed thereof 

within the time required by law, and the occupation of the property by any other person is 

deemed to have been under and in subordination to the legal title, unless it appear that the 

property has been held and possessed adversely to such legal title, for five years before 

commencement of the action.” 

As noted above, Ruth and Jack acquired the Gibson property in 1959 and initially 

held title in joint tenancy under the joint tenancy deed. Because the Gibson property was 

held in joint tenancy, when Ruth died, the property was not subject to administration in 

Ruth’s estate. (Guardianship of Wood, supra, 193 Cal.App.2d at p. 267; Estate of 

England, supra, 233 Cal.App.3d at p. 4 [an interest in a joint tenancy cannot be devised 

by will]; Prob. Code, § 6600, subd. (b)(1).) After Ruth’s death, Jack recorded, in 1989, 

an affidavit of death of a joint tenant, whereby Ruth was dropped from the title. In 1995, 

Jack transferred the title to his living trust by means of a grant deed. (Ex. 24.) Jack 

therefore held title to the Gibson property solely in his name from 1989, when he filed 

the affidavit of death of joint tenant, until 1995, when he transferred it to his living trust. 

Thereafter, title was held by his living trust. 

Under Evidence Code section 662, a presumption exists that Jack, and thereafter 

his trust, as the owners of legal title to the Gibson property, were also the owners of the 

full beneficial title to the property. The Pearce Parties do not claim, nor is there any 

evidence, that they held the property by adverse possession. The Pearce Parties also did 

not adduce any evidence, other than Ruth’s 1983 will, to overcome the presumption. The 

Pearce Parties have therefore failed to rebut the presumption established by Evidence 
20.

Code section 662 that, as the holders of legal title to the Gibson property, Jack, and 

thereafter his trust, were also owners of the full beneficial title to the property.

II. Ruth’s Estate is Not Vested With an Undivided 25 Percent Interest in the 

Rosedale Property

The Pearce Parties contend that Ruth’s estate is vested with a 25 percent interest in 

the Rosedale property as a tenant in common with Jack’s trust. The trial court ruled that 

Ruth’s estate did not have a property interest in the Rosedale property. The Pearce 

Parties contend that the trial court’s determination is erroneous. We reject the Pearce 

Parties’ contentions regarding the Rosedale property and affirm the trial court’s 

determination. 

A. The Trial Court’s Ruling

Regarding the Pearce Parties’ contentions concerning the Rosedale property, the 

trial court ruled:

“As to the Rosedale property, the court finds Ruth’s estate does not 

have a property interest in the property. It was undisputed that Briggs Oil 

Company bought and held title to the Rosedale property until 1989, after 

Ruth’s death. (Ex. 13 [grant deed for Rosedale property; Pearce Petition, 

¶¶ 9, 25].) The evidence regarding when Jack acquired his interest in 

Briggs Oil Company was conflicting. Earle testified that Jack acquired his 

interest in the company from his parents before he married Ruth. 

[Citations.] If so, Jack’s partnership interest and his interest in the 

Rosedale property were his separate property. (Fam. Code, § 770(a); Cal. 

Const., Art. I, § 21.) There was no evidence that the Rosedale property was 

transmuted during the marriage. (Fam. Code, § 852.)

“But, the recorded statement of partnership ... showed that Jack and 

his brother Tom formed a general partnership, Briggs Oil Company, on 

September 1, 1952, after Jack married Ruth. (Ex. 12 [recorded statement of 

partnership].) It was Briggs Oil Company that bought the Rosedale 

property in 1955. (Ex. 13 [grant deed for Rosedale property].) Thus, it 

appears that Jack’s interest in the partnership was presumptively 

community property. (Fam. Code, § 760.)
21.

“Nevertheless, while Ruth may have held a community property 

interest in the partnership, she held no interest in the partnership’s property. 

(Corp. Code, §§ 16501-16503; Kenworthy v. Hadden (1978) 87 Cal.App.3d 

696, 701.) Additionally, Ruth’s interest in the partnership was personal 

property. (Carmichael v. Carmichael (1963) 216 Cal.App.2d 674, 682.) 

Any conversion of her personal property interest in the partnership occurred 

in 1989, when the partnership was dissolved. The statute of limitations for 

a claim of conversion is three years from the act of conversion. (Code Civ. 

Proc., § 338; Rose v. Dunk-Harbison Co. (1935) 7 Cal.App.2d 502, 506.) It 

expired long ago.” 

B. Analysis of Claims Regarding Rosedale Property

The trial court made undisputed findings of facts concerning the Rosedale 

property, as detailed in the “Summary of Facts Established at Trial” in its statement of 

decision. (Unnecessary capitalization omitted.) The trial court found Ruth and Jack were 

married in 1949. The trial court also found: “On August 12, 1995, Briggs Oil Co., a 50-

50 general partnership between Jack and his brother, Tom Briggs, bought the property 

located at 3940 Rosedale Highway, Bakersfield, California.” The trial court further 

found: “On February 7, 1989, Jack and his brother, Tom, dissolved Briggs Oil Co. and 

each partner received a 50 percent interest as tenants in common in the Rosedale property 

by recorded deed.” 

A spouse’s interest as a partner in a partnership is community property, to the 

extent community property was invested in the partnership. (Kenworthy v. Hadden

(1978) 87 Cal.App.3d 696, 701.) However, “[p]artnership property is a distinct category 

of property” and the partnership’s assets are not community property. (Ibid. [while a 

partner has a right to possess partnership assets, such right can be exercised only for 

partnership purposes; accordingly, partnership assets are not community property].) 

Here, Ruth had a community property interest in Jack’s partnership interest but not in the 

partnership’s assets, including specific parcels of real property owned by the partnership 

(i.e., the Rosedale property). 
22.

“A partner’s interest in the partnership is that partner’s share of the profits and 

surplus and is itself personal property.” (Kenworthy v. Hadden, supra, 87 Cal.App.3d at 

p. 701; Carmichael v. Carmichael, supra, 216 Cal.App.2d at p. 682 [“A partner’s interest 

in the partnership is his share of the profits and surplus, and the same is personal 

property.”].) Ruth’s community property interest in the Briggs Oil partnership was 

limited to Jack’s partnership interest, and, as such, was an interest in personal property. 

(Ibid.) 

When the partnership was dissolved in 1989, Ruth or her successors in interest 

were entitled to her proportionate share of the undistributed income and net value on 

liquidation of the partnership. However, as the evidence showed and the trial court 

determined, Jack held on to, and thereby converted, Ruth’s share of these proceeds at the 

time of dissolution. To the extent Jack obtained title to an interest in the Rosedale 

property following dissolution, it was after Ruth’s lifetime, and therefore Ruth did not 

acquire a community property interest in the Rosedale property. 

The Pearce Parties, relying on Kenworthy v. Hadden, supra, 87 Cal.App.3d 696, 

701, contend that since Ruth had a community property interest in Jack’s interest in the 

partnership, she traded it for the same in the Rosedale property, when Jack acquired it 

upon dissolution of the partnership, after her death. But Kenworthy v. Hadden does not 

assist the Pearce Parties. Kenworthy v. Hadden simply explains that, where one spouse is 

a partner in a partnership, and community property funds are invested in the partnership, 

the other spouse has a community property interest in the partner spouse’s interest in the 

partnership. (Kenworthy v. Hadden, supra, at pp. 700-701.) Thus, even assuming Ruth 

had a community property interest in Jack’s partnership interest, it was an interest in 

personal property that Jack converted at the time of dissolution. 

The trial court correctly noted, “[a]ny conversion of [Ruth’s] personal property 

interest in the partnership occurred in 1989, when the partnership was dissolved.” The 
23.

court further noted, also correctly, that “[t]he statute of limitations for a claim of 

conversion is three years from the act of conversion.” (See § 338, subd. (c)(1) [“an 

action for the specific recovery of personal property” must be brought within three 

years]; Rose v. Dunk-Harbison Co. (1935) 7 Cal.App.2d 502, 506 [“a cause of action for 

conversion of personal property arises immediately upon the commission of the acts of 

conversion”].)

The Pearce Parties initiated the instant action on April 26, 2011, more than 22 

years after the act of conversion. Accordingly, their claims relating to Ruth’s interest in 

Jack’s partnership interest are barred by the three-year statute of limitations set forth in 

section 338, subdivision (c)(1). We affirm the trial court’s ruling with respect to the 

Rosedale property.

III. The Pearce Parties’ Real Property Claims are Time-Barred 

Since the trial court correctly concluded that Ruth was not a tenant in common of 

the Gibson and Rosedale properties, its further conclusion that the Pearce Parties’ real 

property claims were time barred under sections 318, 319, and 321, was in turn correct. 

We affirm the trial court’s conclusion that the Pearce Parties’ real property claims 

regarding the Gibson and Rosedale properties were time barred.

A. Background

Section 318 provides: “No action for the recovery of real property, or for the 

recovery of the possession thereof, can be maintained, unless it appear that the plaintiff, 

his ancestor, predecessor, or grantor, was seised or possessed of the property in question, 

within five years before the commencement of the action.”

Section 319 provides: “No cause of action, or defense to an action, arising out of 

the title to real property, or to rents or profits out of the same, can be effectual, unless it 

appear that the person prosecuting the action, or making the defense, or under whose title 

the action is prosecuted, or the defense is made, or the ancestor, predecessor, or grantor 
24.

of such person was seised or possessed of the premises in question within five years 

before the commencement of the act in respect to which such action is prosecuted or 

defense made.”

Section 321 provides: “In every action for the recovery of real property, or the 

possession thereof, the person establishing a legal title to the property is presumed to 

have been possessed thereof within the time required by law, and the occupation of the 

property by any other person is deemed to have been under and in subordination to the 

legal title, unless it appear that the property has been held and possessed adversely to 

such legal title, for five years before the commencement of the action.”8 

The trial court found that the Pearce Parties’ claims were time barred under 

sections 318 and 319. The court explained:

“Having concluded that Ruth was not a tenant in common of the 

Gibson or Rosedale properties, the court finds that the Pearce Parties’ real 

property claims are time barred.... [I]n their closing briefs, the parties all 

agreed that Code of Civil Procedure sections 318 and 319 control this claim 

to recover real property.

“Code of Civil Procedure sections 318 and 319 provide that an 

action to recover real property, or the rents and profits derived from a real 

property, cannot be maintained unless the plaintiff was either ‘seised or 

possessed’ of the property within five years before commencement of the 

action. (Safwenberg v. Marquez (1975) 50 Cal.App.3d 301 [merely paying 

taxes is insufficient to prove seisin].) ‘Seised or possessed’ means that the 

plaintiff held legal title, including through adverse possession, during the 

requisite period. (Salazar v. Thomas (2015) 236 Cal.App.4th 467, 471 

[“we conclude that the notices of default under void deed of trust provided 

notice of [a] cloud on plaintiffs’ title, but did not dispute or disturb 

plaintiffs’ possession of the property”].) In other words, an action to 

recover real property is time barred unless the plaintiff can show that he or 

8 Section 321 is in sync with Evidence Code section 622, under which the owner of 

the legal title to property is presumed to be owner of the full beneficial title, which 

presumption may only be rebutted by clear and convincing proof.
25.

she held title to the property within five years before filing the action. 

(Harrison v. Welch (2004) 116 Cal.App.4th 1084.)

“The Pearce Parties did not carry their burden of proving seisin or 

possession in the five-year period before they filed the original petition in 

April 2011. The uncontested evidence showed that the Charles J. Briggs 

Individual Living Trust has had actual legal title to both the Rosedale and 

Gibson properties since Jack signed the deeds on December 13, 1995 and 

recorded them on January 9, 1996 (admitted as Exs. 24 and 25). Prior to 

that, Jack personally held legal title to the Gibson and Rosedale properties 

from 1989 to 1995. (Admitted Exs. 19 and 20.) This again invokes the 

presumptions under Code of Civil Procedure section 321 and Evidence 

Code section 662. In addition to this evidence, the Pearce Parties admitted, 

by way of the stipulated facts and testimony, that they did not possess either 

property from 1988 until the date the Pearce Parties filed their original 

petition. (Stipulated Facts 12 and 13.)” 

The Pearce Parties challenge the trial court’s ruling. They claim that the 

applicable statutes of limitations, i.e., sections 318 and 319, were never implicated 

because Ruth and Jack were tenants in common of both properties and Ruth’s seisin was 

therefore presumed. This claim has no merit as we have affirmed the trial court’s 

determination that Ruth (or Ruth’s estate) and Jack (or Jack’s trust) were not tenants in 

common of either property at any time. The Pearce Parties failed to establish that Ruth’s 

estate or successors in interest held title to the Gibson or Rosedale properties. The Pearce 

Parties also conceded that as Ruth’s successors in interest, they never possessed the 

Gibson or Rosedale properties at any time before filing their instant claims. Under 

sections 318 and 319, the Pearce Parties’ real property claims are therefore time-barred.

IV. Jack’s 1995 Trust’s Ownership of the Gibson and Rosedale Properties by 

Adverse Possession

The Briggs Parties raised an affirmative defense to the Pearce Parties’ claims that 

Ruth’s estate held interests in both the Gibson and Rosedale properties, to the effect that, 

at a minimum, Jack’s 1995 trust owned the Gibson and Rosedale properties by adverse 

possession. The Briggs Parties made the same claim in the Briggs Petition. The trial 
26.

court properly rejected the Pearce Parties’ claim that Ruth was a tenant in common with 

Jack, as to the Gibson property. The trial court also properly rejected the Pearce Parties’ 

claim that Ruth had a community property interest in the Rosedale property. In short, the 

trial court correctly concluded that Jack’s 1995 trust was the proper record owner of the 

relevant interests in the Gibson and Rosedale properties. In light of the trial court’s 

conclusion, there was no need for the Briggs Parties to prove the trust owned these 

properties by adverse possession. 

V. Other Issues 

We affirm the trial court’s determination that Jack’s 1995 trust was the proper 

record owner of both the Gibson and Rosedale properties. In light of our affirmance of 

the trial court’s rulings with regard to both the Gibson and Rosedale properties, the 

remaining contentions raised by the Pearce Parties fail and we need not address them. 

The Briggs Parties did not cross appeal but nonetheless raised claims of their own in 

connection with the Pearce Parties’ appeal. The Briggs Parties have raised those claims 

absent filing a notice of appeal and without providing authority demonstrating that they 

may properly do so. (California State Employees’ Assn. v. State Personnel Bd. (1986) 

178 Cal.App.3d 372, 382, fn. 7 [as a general matter, “a respondent who has not appealed 

from the judgment may not urge error on appeal]; Celia S. v. Hugo H. (2016) 3 

Cal.App.5th 655, 665 [as a general rule, respondents who fail to file a cross-appeal 

cannot claim error in connection with the opposing party’s appeal]; Drell v. Cohen (2014) 

232 Cal.App.4th 24, 31.) Accordingly, we decline to reach the separate issues raised by 

the Briggs Parties.

9

 In any event, since we have affirmed the underlying judgment, the 

issues raised by the Briggs Parties are moot. 

9

 The probate court granted a motion brought by Everett Earle Pearce, Jr., “to 

substitute Richard Crawford in place of petitioner, Flora Geraldene Crawford.” 

(Unnecessary capitalization omitted.) The motion was heard by the court on June 13, 
27.

DISPOSITION

The judgment is affirmed. Respondents are entitled to their costs on appeal.

SMITH, J.

WE CONCUR:

DETJEN, Acting P.J.

MEEHAN, J.

2019. The court granted the motion and ordered that “Richard Crawford, as the successor 

trustee of the Flora G. Crawford Trust ... is substituted in place of petitioner Flora 

Geraldene Crawford for all purposes relative to this action.” The motion, any opposition, 

and reporter’s transcript of the motion proceedings are not included in the record on 

appeal. One of the issues raised by the Briggs Parties in connection with the Pearce 

Parties’ appeal is that “Richard Crawford, trustee of the Flora G. Crawford Trust[,] has 

no standing to pursue this appeal.” (Unnecessary capitalization omitted.) As noted, 

however, the record on appeal does not encompass transcripts and other records relevant 

to this issue. Furthermore, the Briggs Parties’ brief did not provide authority 

demonstrating that we could properly reach this issue. While the Briggs Parties recited 

relevant authority for the first time at oral argument, the Pearce Parties did not have an 

opportunity to respond. Given these circumstances, and the fact that we have resolved 

this appeal in favor of the Briggs Parties, we will not address this issue. 

The other issue the Briggs Parties have raised in connection with the Pearce 

Parties’ appeal is a challenge to the probate court’s admission of Ruth’s will into

evidence at trial. However, we decline to address this issue as the Briggs Parties have not 

provided any authority demonstrating they can properly raise this challenge without filing 

a notice of appeal.
Filed 8/31/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

EVERETT EARLE PEARCE, JR., as Trustee, 

etc., et al., 

Plaintiffs and Appellants,

v.

CHARLES BRIGGS, JR., Individually and as 

Trustee, etc., et al., 

Objectors and Respondents.

F080403

(Super. Ct. No. S1501PB60869)

ORDER MODIFYING OPINION,

DENYING PETITION FOR REHEARING,

AND GRANTING REQUEST FOR 

PUBLICATION

[No Change in Judgment]

THE COURT:

It is hereby ordered that the opinion filed herein on August 4, 2021, be modified as 

follows:

On page 14, add the following footnote to the end of the first full paragraph. This 

modification requires the renumbering of all subsequent footnotes. 

To the extent the Pearce Parties suggest that Ruth’s ostensible 

will should be interpreted according to the traditional tenets and 

statutory scheme applicable to the interpretation of wills, with a 

focus on giving effect to the intent of the testator, that argument is 

unavailing because, as noted above, a joint tenancy cannot be 

severed in a revocable instrument and, in turn, an interest in a joint 

tenancy cannot be devised by will. Applying the traditional rules of 

interpretation of wills to the language at issue would require 

construing this part of the document as a will (rather than as 

“something else” or as a will and “something else”) and thereby as 

revocable, and would necessarily preclude a finding that the relevant 
2.

language severed the joint tenancy in the Gibson property. The 

Pearce Parties’ argument is therefore self-defeating. 

On page 21, the fourth sentence of the first paragraph under section B. Analysis of 

Claims Regarding Rosedale Property, which begins with “The trial court also 

found,” the year 1995 should be replaced with 1955, so that the sentence reads 

as follows: 

The trial court also found: “On August 12, 1955, Briggs Oil Co., a 

50-50 general partnership between Jack and his brother, Tom Briggs, 

bought the property located at 3940 Rosedale Highway, Bakersfield, 

California.” 

There is no change in the judgment. Except for the modifications set forth, the 

opinion previously filed remains unchanged. 

As the nonpublished opinion filed on August 4, 2021, in this matter meets the 

standards for publication specified in the California Rules of Court, rule 8.1105(c), 

respondents’ request for publication is hereby granted and it is ordered that the opinion be 

certified for publication in the Official Reports.

In compliance with rule 8.1120(b) of the California Rules of Court, the 

Clerk/Executive Officer of this court shall transmit copies of the request for publication, 

the opinion, and this order to the Supreme Court.

Appellants’ petition for rehearing filed on August 19, 2021, is hereby denied. 

SMITH, J.

I CONCUR:
3.

MEEHAN, J.

 I concur in the modification of the opinion and the denial of the petition for 

rehearing. I would, however, deny the request for publication. 

DETJEN, Acting P. J.