In Re Estate of Smead

CURTIS, J.

This is an appeal from an order refusing to settle the final account of Chester R. Smead, as executor of the last will of Lillian Charnock Smead, deceased, and ordering said executor to account to the estate of said decedent for the proceeds of two pieces of real property owned by said decedent and sold by her during her life

[574]

time. The whole controversy hinges upon the question as to whether said two pieces of real property were acquired by said decedent as a gift and were, therefore, her separate property, or whether she acquired them under such circumstances as to make them the community property of herself and her husband, the said Chester R. Smead. If said property was community property, then, upon her death, the whole descended to her husband, as it was acquired after her marriage and prior to the effective date of the amendment to section 1401 of the Civil Code in 1923 giving the wife testamentary disposition over one-half of the community property. If, however, said property was the separate property of the decedent, it was subject to her testamentary disposition. By her will she left devises amounting to $35,000 to which the respondents are entitled, if said property was the separate property of said decedent.

Practically the only question involved in this appeal concerns the action of the trial court in refusing to admit in evidence certain of the proceedings in the case of

Hunt

v.

Price,

offered on behalf of the appellant. That case was instituted by the county treasurer of the county of Los Angeles against decedent under her maiden name of Lillian Charnock Price to recover an inheritance tax from Lillian Charnoek Price on the ground that said two pieces of real property were acquired by her as a gift from her uncle, John J. Charnock, and that said gift was made by said John J. Charnoek in contemplation of his death. The deed by which said real property was conveyed to decedent ran to her in her maiden name, although she was then, and for more than two years prior thereto had been, married to the appellant herein.