In Re Estate of Dargie (1918) · DecisionDepot

In Re Estate of Dargie

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Dec 17, 1918 No. S. F. No. 8710.Published

Before: Sloss, Wilbur

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Holding. The court held that the testator intended to treat his entire estate as community property and bequeath only one-half of that total estate to his wife, rather than granting her a three-fourths share.

Issues

Whether the testator intended to dispose of the entire community property or only the portion subject to his testamentary power.
Whether the surviving wife is entitled to three-fourths of the estate or one-half under the terms of the will.

Disposition. reversed

Quotations verified verbatim against the opinion

“The court was in error in allowing the surviving wife three-fourths of the property of the deceased. She is entitled to one-half of the separate property of the deceased and to one-half of the community property.”

Synopsis

The facts are stated in the opinion of the court.

Fitzgerald, Abbott & Beardsley, and Eugene E. Trefethen, for Appellants.

M. C. Chapman, John F. Conners, and J. Clem Arnold, for Appellants, Executors, and Trustees.

Opinion — Wilbur

WILBUR, J.

This is an appeal by the executors and trustees and by the residuary legatees from a partial decree of distribution, whereby three-fourths of the estate of the deceased was distributed to his surviving wife, one-half as community property and one-half under the terms of the will. The correctness of the decree depends upon whether or not, by the provisions of the third division of the will, the deceased intended to deal with the entire community property, or only with that portion thereof (one-half) over which he had the power of testamentary disposition. (Civ. Code, sec. 1402.) The provision in question reads as follows (italics ours) :

“I hereby certify and declare that at the time of my marriage with my wife Erminia Peralta Dargie, I owned and

possessed

in my own right, property of the then value of about one hundred thousand dollars, and which said property is still owned and

possessed

by me, and is a part and portion of my estate, but that for the purpose of this my said will,

all of the property of which I am noto possessed

may be considered as community property, and I do hereby give, bequeath, devise, and

confirm

unto my said wife Erminia Peralta Dargie,

one-half of all the

property, real, personal or mixed,

of which I may die

seised or

possessed,

being the same portion thereof to which she would be

entitled

in the event of all of my said property being community property.”

It will be observed that the decree stated that certain property was “owned and possessed” by him at the time of his marriage, and was still “owned and possessed” by him, but directs that such property and all other property “possessed” by him be considered as community property. He then bequeaths and devises and

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Concurrence — Sloss

SLOSS, J., Concurring.

I concur in the judgment. The question is one of interpretation, simply, and I agree with Justice Wilbur’s conclusion that a reading of all the provisions of the will discloses the testator’s intent that the entire estate possessed by him in his lifetime should be regarded as community property, and that the widow should receive

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only one-half of that entire estate. In other words, the testator in speaking of “the property, real, personal, or mixed of which I may die seised or possessed,” had in mind the whole of the community property, and not merely the part of it which was subject to his power of testamentary disposition.

It should, perhaps, be added that no member of the court, as I understand, is disposed to depart in the slightest degree from the familiar and well-settled rules governing the construction of wills made by married men possessed of community property. This court has consistently ruled that such a testator is presumed to know that his power of disposition by will does not extend to the surviving wife’s half interest in the community property, and that the will is ordinarily to be read as covering, by its dispositions, only the property which the testator had the right to devise or bequeath, i e., his separate property and an undivided half of the community property. The gift to the widow of “half of my estate” would, therefore, in the absence of words indicating a contrary intent, carry to her one-half of the estate subject to testamentary disposition, and she would take, in addition, one-half of the community property as survivor. A few citations will suffice.

(Beard

Knox,

5 Cal. 252, [63 Am. Dec. 125];

Estate of Silvey,

42 Cal. 210;

Estate of Smith,

108 Cal. 115, [40 Pac. 1037];

Estate of Vogt,

154 Cal. 508, [98 Pac. 265];

Estate of Prager,

166 Cal. 450, [137 Pac. 37].) In the present case, however, the wording of the will is such that the presumptions referred to cannot be applied without doing violence to the testator’s declared intention.

Angellotti, C. J., concurred.

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Synopsis

Opinion — Wilbur

WILBUR, J.

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Concurrence — Sloss

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