In re Estate of Boody

SEARLS, C. This is an appeal from an order of partial distribution of the estate of Joseph B. Boody, and from an order .refusing a new trial therein. The order distributes certain par[403]cels of real estate "belonging to said estate. The sole question ire issue is whether the lands so distributed were community, property or the separate property of Joseph B. Boody, deceased.

Joseph B. Boody died intestate, in the county of San Joaquin,. November 7, 1893, without issue, leaving him surviving as his heirs at law Elizabeth Boody, his widow, Emily Foss, a sister, and the children of a deceased brother. Elizabeth Boody, the widow, died intestate November 10, 1893, without issue, leaving as her next of Mn and heirs at law, a sister, one child of a. deceased sister, and the children of certain deceased brothers.

The heirs at law of Elizabeth Boody claimed on the distribution that the property in controversy was the community property of Joseph B. and Elizabeth Boody, his wife, and hence that they were entitled of right to have distributed to them three-fourths thereof. The court below denied this claim. It found that all the real estate involved was the separate property of Joseph B. Boody, and accordingly distributed to the heirs of Elizabeth but one-half thereof, and the other half to the heirs- of Joseph B. Boody.

The heirs of Elizabeth appeal from the decree and from am order denying their motion for a new trial, and their contention: is, that the finding as to the separate character of the property is not warranted by the evidence. This cause was here once before upon an appeal involving precisely the same question^, whereupon the decree of the court below was reversed.

"Upon the going down of the remittitur, another trial was had, in which the precise evidence taken on the former trial was introduced and certain other witnesses, four in number, were called and testified on behalf of respondents. The case on the former appeal is reported in 113 Cal. 682.

In reference to that case, we may say that the comments of this court upon the evidence are sufficiently full and specific to lead to an understanding of its scope and effect, and reference is had thereto for an exposition of the facts therein stated. We need, therefore, only comment upon the additional testimony adduced at the last trial.

It is proper to state that Joseph Boody and Elizabeth Boody (nee Mulvey) intermarried December 31, 1857. The additional