Cranston v. Miller

SHINN, P. J.

It is well settled that when a husband or wife makes a will which expresses a clear intention to dispose of all the estate of the testator in the belief that it is his or her separate property, and by the will leaves a portion of it to the surviving spouse, if the latter claims a community interest in the property, he or she has a choice between taking

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under the will or standing upon his or her right to half of whatever is found to be community property.

(Estate of Wolfe,

48 Cal.2d 570 [311 P.2d 476];

Estate of Resler,

43 Cal.2d 726 [278 P.2d 1] ;

Estate of Emerson,

82 Cal.App.2d 510 [186 P.2d

734]; Estate of Vogt,

154 Cal. 508 [98 P. 265] ;

Estate of Moore,

62 Cal.App. 265 [216 P. 981].) The survivor cannot take under both.

When Sadie G. Johnson died after 34 years of marriage to Albert, there stood in her name a pickup truck which Albert had been using and real and personal property of the value of $133,000. Albert had $300 in bonds. Sadie’s will contained provisions as follows: “Second: I hereby declare that I am a married woman, that my husband’s name is Albert Johnson; and that I have no children, and that all property of which I am possessed is my separate property. Thibd : I hereby give, devise and bequeath all property of which I may die possessed to the following named persons, equally, share and share alike: Albert Johnson, my husband, Reseda, California Harry Miller, brother, Chicago, Illinois. ’ ’

In the administration of Sadie’s estate an inheritance tax of $3,833.87 was levied against the share of Harry Miller calculated upon the value of one-half the estate. An order fixing the tax at that amount was vacated and upon a final hearing of Miller’s objections to the appraiser’s report, the court sustained the objections and fixed the tax at $1,606.34, calculated upon a quarter interest in the estate. The State Controller has appealed.