Whalen v. Webster

SHAW, J.

This is a proceeding under section 1664 of the Code of Civil Procedure, to determine the succession to the estate of George Roach, deceased.

The plaintiff, Margaret Copsey, now deceased, was the surviving widow of George Roach. He died testate and his will was duly probated. His estate consisted entirely of community property. The right to succeed to said estate depends upon the effect of the following clauses of his will:—

“Thirdly: I give and bequeath to my wife, Margaret Roach, all and singular my property, real and personal, wherever situated, and all moneys belonging to me of which I may die possessed, to have and to hold the same during the full term of her life for her own proper use, behoof and benefit;

“Fourthly: It is my desire that on the death of my said wife, after deducting the portion to which she is legally entitled under the laws of the state of California, the remainder be equally divided among my brothers and sisters, or their descendants, according to the laws of distribution.”

George Roach had only one brother, Thomas Roach, and but

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one sister, Ellen Whalen, both of whom are dead. His widow died on December 9, 1907, after this proceeding was begun. The court below decided and adjudged that, under the above provisions of the will, one fourth, only, of the estate vested in the descendants of the said sister and brother of Roach, and that the other three fourths vested in the heirs and grantees of the widow. She had married Fred Copsey after the death of Roach. The descendants of the brother and sister appeal from this adjudication.

The theory of the court below was that, as the husband has not the absolute power of testamentary disposition over what is usually termed the wife’s one half of the community property, the provisions of the will, although its language would appear to include and dispose of the whole of the estate, must, under the rules stated in

Estate of

Gilmore, 81 Cal. 242, [22 Pac. 655], be construed to refer only to that moiety which was subject to his testamentary disposal; that, upon his death, one half the community property became the property of the surviving widow, under section 1402 of the Civil Code; that the remaining one half was devised to the widow for her life by the third clause of the will, and that, upon her death the fourth clause gave one half of that half to the descendants of the brother and sister, by direct devise, and the other half to the heirs of the widow, under a devise by implication.