Duncan v. Duncan

THE COURT. Decedent died intestate leaving surviving him a widow and mother. The former was appointed administratrix and in due time the order and decree from which this appeal is pending were entered, the effect of which was to decree that all of the property in the estate, consisting of real property, stocks, promissory notes and cash, had been the community property of the decedent and his widow and was to be distributed' to the widow as survivor of the community in accordance with the provisions of section 201 of the Probate Code. This was done over the objection of the contestant mother who has contended throughout that the property was the separate property of decedent and therefore under the provisions of section 223 of the Probate Code passed to the widow and contestant, share and share alike.

The respondent widow moves to dismiss the appeal in so far as it affects or stays the distribution of one-half of the estate, upon the ground that the “contestant is not entitled in any event to more .than one-half of the estate of said decedent, and that respondent is entitled in any and all events to one-half of said estate”.

The ground urged is obviously not jurisdictional and otherwise furnishes no authority for the dismissal of the appeal or any portion thereof.

Motion denied.