Estate of Traver

LORIGAN, J.

Charles Traver died in Sacramento County in 1901, leaving a will made August 5, 1897. At the time this will was made, his wife was living, and by its terms he bequeathed all his property to her during her life. He then provided, after reciting that all the property was community property, and that the will was only intended to convey that portion of it over which he had testamentary capacity, that “at the death of my wife, it is my will that one half of the property hereby given, devised and bequeathed to my wife

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during her lifetime, shall descend and go to Lott D. Norton, Charles T. Norton and Bussell Day, Jr., in equal proportions.” And then further provided that, “If my wife dies before I do, in that event I give, devise and bequeath one half of the whole of my property to Lott D. Norton, Charles T. Norton, and Bussell Day, Jr., or in the ease of the death of either of them, to their heirs by right of representation. ’ ’

These were the only provisions of the will disposing of his estate.

The testator’s wife died before he did, the effect of which was to vest in him. the entire community property, only one half of which was disposed of under his will; as to the other half he died intestate, leaving as his heirs at law to succeed to the same, among others, the appellants George W. Traver, a brother, and Mary E. Burk, the daughter of a deceased sister.

The will was duly admitted to probate, the estate consisting solely of real property. In due course of administration a petition for distribution came on for hearing, and the court determined thereon that the testator had made testamentary disposition of but one half of his estate, and that as to the other half he had died intestate. It accordingly distributed one half thereof to the respondents as devisees under the will, and the other half to the appellants, and others, as his heirs, according to the law of succession, but further decreed that all the debts of deceased, and the expenses of administration of the estate, should be borne by, charged to, and paid by that portion of the estate which the testator had not disposed of by his will, and which had descended to these appellants, and others, as his heirs at law, thus exempting the portion of the estate devised by the will to the respondents from the payment of any of these charges.