Estate of Ettlinger

DOOLING, J.

Appellant is the widow of Isaac Ettlinger, deceased. They were married in 1935 and at the time of this marriage the life of Isaac Ettlinger was insured hy two policies issued by Connecticut General Life Insurance Company for an aggregate sum of $65,000, payable upon his death in trust for two adult daughters. Isaac Ettlinger died testate in 1941. By his will he left separate property of considerable value to his widow, the appellant. The widow, claiming that the premiums paid on the life insurance policies after her marriage to Isaac Ettlinger were made with community funds, filed a petition for declaratory relief asking the court to adjudicate that she was not put to an election between taking the property left to her by the will and asserting her community interest in the proceeds of the life insurance policies. The court decreed that she was put to her election and from that judgment this appeal is taken.

The doctrine of election under a will is thus stated in 26 Cal.Jur. 1021-1022:

“Where the provisions of the will seek to impose a responsibility upon or curtail a property right of one who is named as a devisee or legatee, the latter is in the necessity of making an election, either to take the gift upon the conditions imposed by the testator or to renounce the devise or bequest and preserve the rights which are required thereby

[969]

to be surrendered. In the language of recent authority, ‘The doctrine of election under a will is a familiar one. Where property to which one may have a valid claim (as in the ease of community property, a surviving wife), is disposed of by will in violation of those rights, while at the same time other property, to which the claimant would not be entitled, is devised to the claimant, an election is forced. The claimant cannot at the same time take the benefits under the will and repudiate the losses. He must either accept the terms of the will in toto or reject them in toto.’ ”

The will contained the following provision: “Second: I declare that all property owned or possessed by me, or in my name or under my control, is my separate property; and I make this my will to operate upon the whole thereof so far as existing at my death.”

Respondents point to the words “possessed by me, or in my name or under my control” and argue that they are broad enough to include the life insurance here in question, citing