Estate of Walker

[401]

SHAW, J.

Cornelius Walker died, intestate, on November 20, 1913. Mabel A. Nason, Ms daughter, applied for letters of administration upon Ms estate, claiming to be Ms sole heir. Mabel E. Walker, the widow of the deceased, also applied for letters. The two applications were heard together, and the court thereupon made an order grantmg letters to the daughter and denying the application of the widow. From this order the widow appeals. ' •

Mabel A. Nason was the daughter of the decedent by a former marriage and was not the daughter of Mabel E. Walker. The case turns on the right of the widow to succeed to a part of the personal estate of the decedent, under a written agreement between her and the decedent, executed on November 8, 1911. Under section 1365 of the Code of Civil Procedure, if by reason of that instrument she is not entitled to succeed, letters of administration could not, of right, be issued to her upon his estate. At the time of the execution of the agreement, the decedent and Mabel E. Walker were husband and wife. The agreement was in effect as follows: The opening clause recited that the parties were engaged in the piano business and that "Whereas, each of said parties is desirous of dividing and segregating the property rights of each, and the rights of the other, and desire that hereafter each shall hold control and manage his or her property separate from the control of the other;

"Now, therefore, it is agreed

"First. That the estate, both real and personal now owned or controlled by either or both of said parties, is hereby divided and distributed as follows, and that the part of the one be segregated from the part of the other";

Then follows a list of the property given to each, and a release by each to the other of the property so partitioned. The second paragraph is as follows:

"Second. And the said parties hereby release each to the other, all claim for support, or any claim against the other’s estate that he or she might have or assert, now or in the future, to any estate now assigned, or hereafter acquired by either, whether received by purchase, descent, inheritance or otherwise. ’ ’

The only other material paragraph is the fifth, which reads as follows: