In Re Estate of Claiborne

ANGELLOTTI, J.

This is an appeal from the decree of final distribution in the matter of the estate of Gilbert B. Claiborne, deceased. The deceased died testate, his will being as follows:—■

“I, Gilbert B. Claiborne, of the city of Stockton, California, do hereby make and declare this my last Will and Testament, hereby revoking and declaring void all wills and codicils to the same by me heretofore made. In the administration of my estate it is my wish that all property shall be considered and treated as community property.

“So much of my will I make and declare this day to protect my wife, not yet having been fully advised of my further purposes.

“I nominate and appoint Richard C. Minor, together with my wife as executors and request that no bonds or undertakings be required of them or either of them.

“In witness whereof, I have written this wholly with my own hand and signed the same this 24th day of February, A. D. 1905, at Stockton, California.

“Gilbert B. Claiborne.”

He left no descendants, and his only heirs at law were Marian P. Claiborne, his surviving wife, and the children of several deceased brothers. All the property left by deceased was his separate property. The lower court determined that under the terms of the will the surviving wife was entitled to have distributed to her an undivided three fourths of all the property, and that the children of the deceased brothers were entitled to the remaining one fourth. Prom the decree made in conformity with this determination some of said children have appealed, claiming that the surviving wife is entitled to only one half of the property and that the children of the deceased brothers of deceased are entitled to one half of the property.

The theory of appellants is that deceased died intestate so far as any distribution of his property by will was concerned, the claim being that the only effectual part of his will was the

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provision appointing executors, and that the property passed under the law of succession as separate property, one half to the widow and one half to the children of his deceased brothers. It is clear that if the will was not effectual to dispose of the property, the claim of appellants must be held to be well founded, for despite the declaration in the will of the wish of the testator that his property should be considered and treated as community property, such property would have to be regarded and treated by the courts as separate property if found to be such