In Re Estate of Drishaus

RICHARDS, J.

This appeal has been taken by Southern Trust & Commerce Bank, administrator with the will annexed of the estate of Herman Drishaus, deceased, from an order of the superior court, in and for the county of San Diego, overruling its objection to the report of the inheritance tax appraiser and fixing the inheritance tax in said estate. The facts of the case are embraced in a stipulation of the parties hereto, from which it appears that Herman Drishaus died on May 30, 1924, in the county of San Diego, California, being a resident therein; that he left as his widow Addie Drishaus. to whom he was married in 1875 in Milwaukee, Wisconsin; that thereafter the parties to the marriage removed to the state of Nebraska and from thence and in the year 1916 removed to San Diego, Cali

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fornia, where they resided until the husband’s death; that all of the property of which he died possessed was personal property acquired while a resident of the state of Nebraska, except as to such increase therein as accrued from the unused earnings of said property during the residence of the deceased in California; that under the laws of the state of Nebraska property acquired there would be the separate property of the decedent; that the deceased left a will in which he denominated all of his property as community property; that by the report of the inheritance tax appraiser the entire property of the decedent was treated as separate property and was subjected to the inheritance tax which would be assessable against said property as the separate property of the decedent. In the trial court the administrator urged in support of its objection to the inheritance tax report making such appraisement and to the order fixing the inheritance tax in accordance therewith, that under the provisions of section 164 of the Civil Code, as amended in 1923 (Stats. 1923, p. 746), all of the property of the decedent was community property, and hence, that only one-half thereof should be taxed to the widow as the sole legatee under her husband’s will. Section 164 of the Civil Code, as so amended, reads in part as follows: “All other property acquired after marriage by either husband or wife, or both, including real property situated in this state, and personal property wherever situated, heretofore or hereafter acquired while domiciled elsewhere, which would not have been the separate property of either if acquired while domiciled in this state, is community property.” The amendment to the portion of said section above quoted, made in 1923, consisted .in the insertion of the words “heretofore or hereafter,” the same reading before said amendment as follows: “All other property acquired after marriage by either husband or wife, or both, including real property situated in this state, and personal property wherever situated, acquired while domiciled elsewhere, which would not have been the separate property of either if acquired while domiciled in this state, is community property.” (Stats. 1917, p. 827.) The effect of the amendment, if valid, would be to render the personal property of the decedent, acquired prior to the taking effect of the amendment and while a resident of the state of Nebraska, community property and as such subject