In re Smith's Estate

VANCLIEF, C. Robert Smith, who died April 31, 1892, disposed of all his property by his last will as followsi: “I give and bequeath to my daughter, Mrs. Mary Cardiff, now of San Benito county, California, a life estate in my home ranch in San Benito county, California, the same being described as follows, to wit, being the southwest quarter of section 6, township 15 south, range 7 east, M. D. M.; also all live stock, farming utensils, household furniture, and in fact all personal property that may be on the said ranch, excepting money on hand, securities, and other evidences of money due me; to have and hold and use during her natural life as her own, and at her death to pass in fee to her sons, Robert Cardiff and Geo. H. Cardiff, and to their heirs in fee simple. But, in the event I survive my said daughter, Mary Cardiff, then, at my death, said property to pass directly to her said sons, Robert and George Cardiff. This bequest, however, is not to take effect during the lifetime of my wife, Mary Smith, who is now residing with me on the above-described property. In the event she survives me, she is to have full and free use and absolute control of said real property and personal herein referred to, and after her [921]death to pass as above provided. This is made with full knowledge of property rights of husband and wife, and with the knowledge and ‘consent of my said wife.’ ” The will further bequeathed one dollar to each of four grandchildren of the testator, and the residue of testator’s personal property, consisting of money and securities, as follows: To his son William R. Smith, four-tenths thereof; to his son John A. Smith, three-tenths thereof; and to his daughter Jessie Smith, three-tenths thereof. The will nominated said William R. and John A. joint executors thereof, and on May 2, 1892, they were duly appointed as such by the probate court. Both qualified and entered upon the performance of the duties of the trust, but both died before the settlement of their final account—John A., October 19, 1892, and William R., June 25, 1893, though the latter had filed an account which purported to be a final account, on June 1, 1893. On July 22, 1893, Robert Cardiff, son of Mary Cardiff, and grandson of the testator, was appointed administrator with the will annexed, who, on December 18, 1893, filed his final account, and his petition representing that the estate was in condition to be closed, and praying that his final account be allowed, and that the estate be distributed. While the matter of settling the final account of the administrator was pending, to wit, .January 31, 1894, Mary Smith, widow of the testator, filed in the probate court her written claim and notice that all the property of which the testator died seised or possessed was community property, and that she claimed one-half thereof as not subject to testamentary disposition by her late husband. The widow of John A. Smith, as executrix of his estate and as heir of her husband, filed written objections to the final account of the administrator, and also objections to the claim of Mary Smith to one-half of the estate of the testator, alleging that Mary Smith had elected to take under the will, etc. The court, after settling the final account of the administrator, found that all the property of the testator was community property of husband and wife, but that the wife of the testator (Mary Smith) had elected to take under the will, and that she had so taken, and had sold, conveyed, and released to Robert Cardiff and George H. Cardiff, her grandsons, who were also reversionary devisees of all the estate devised and bequeathed to their mother (Mary Cardiff)