Estate of Kurt

DOOLING, J.

Anna Kurt died testate on December 6, 1942, and Bank of America National Trust and Savings Association was appointed executor of her will. By the terms of her will she left certain shares of stock standing in her name to her sister Meta Mohr and to certain other persons and made Meta Mohr the residuary beneficiary of one-half of the residue of her estate. Certain real property was held in joint tenancy by decedent and her husband John G. Kurt at the time of her death.

The executor filed its final account and petition for distribution, listing the personal property but no real property, and alleged that the property on hand for distribution was the separate property of the decedent. Thereupon the surviving husband filed his objections to the petition for distribution and a petition for determination of heirship asking for a determination that all of the property included in the inventory was community property. The probate court so determined and ordered one-half of such property immediately delivered to the surviving husband.

Prom this decree cross-appeals have been taken by the surviving husband John G. Kurt and the surviving sister. Meta Mohr. The appellant Kurt contends that the personal property was acquired prior to 1923, when the law was first enacted giving the wife testamentary power over one-half the community property, and for that reason he should take all of it free of the attempted testamentary disposition of his wife. The appellant Mohr argues that the evidence on the hearing developed that the real property held in joint tenancy was in fact the community property of the spouses and that the probate court should have so determined and should have decreed that one-half thereof was subject to the testamentary disposition of the wife.

This claim of the appellant Mohr is countered by the assertion of the surviving husband that the probate court has no jurisdiction to determine a claim of title adverse to the estate, citing

Estate of Abdallah,

80 Cal.App.2d 634 [182 P.2d 596], where many of the earlier cases are collected and discussed. Apparently counsel for the surviving husband

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does not realize the full import of this argument nor the fact that it is a two-edged sword which lops off jurisdiction of his claim to the personal property asserted against the estate equally with that of the estate’s claim to a share of the real property asserted against him.