Atwell v. Haskell

HENSHAW, J.

Lois A. Atwell, widow of Edmund At-well, appeals from the decree of final distribution made and

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entered in the matter of the estate of said Edmund Atwell, deceased.

The estate of Edmund Atwell consisted entirely of community property as declared by his will. That instrument, which was holographic, contained the following provisions pertinent to the appeal now before us:

“Should my wife, Lois A. Atwell, survive me, I give to her a life interest in my property situated at and fronting on San Pablo Avenue and known as Lots Nos. 8 and 9 and fractional parts of Lots Nos. 10, 11, 12 and 13 of the Kimball Tract, together with the use of the buildings and income to be derived from the same and the control of the same during her natural life, subject to the leases that may be in effect. . . .

“Having been advised that the law gives to my wife one-half of the property I may own, if she survives me, I consider she is amply provided for; and having no natural or adopted child, I give, devise and bequeath the remaining one-half, which I am entitled to dispose of, to be divided as follows”: Here follows an enumeration of the other beneficiaries and the proportionate share of each.

Before his death Atwell had conveyed the fee of the property to his wife and had retained certain leasehold interests in the property, which leasehold interests were admittedly a part of the community property. In its decree of final distribution the court recognized the ownership of the fee in the wife, and, treating Mr. Atwell’s leasehold interests as community property, distributed them one-half to the widow as of right; the other half to the named beneficiaries under Atwell’s will. The widow appeals, contending that by the terms of the first quoted paragraph of the will she was entitled to have distributed to her all of these leasehold interests, herein invoking the familiar principle of construction, that where a testator does not own all that he attempts to devise or bequeath, so much as he does own will go to the beneficiary. Therefore it is said that as his attempt to convey a life estate failed for the indicated reason, it should be held that he did convey by this language whatever was in his power to convey, namely, the leasehold interests. But the terms of this particular devise do not warrant this construction. By those terms even the life estate which was conveyed was, and was to be, subject “to the leases that may