Greene v. Anglo California National Bank

PETERS, P. J. This is an appeal from a portion of an order instructing the administrator of the estate of Robert J. Walsh to treat certain property in the estate of the decedent as community property of the decedent and of his predeceased wife. It is the contention of the appellant that certain of that property, consisting of several articles of jewelry, as a matter of law, was the separate property of the predeceased wife.

Robert J. Walsh and Julia A. Walsh were married in 1900 and lived together until June of 1942, when Julia A. Walsh died. They had no children. The wife died testate, leaving an estate consisting of certain separate property and her share of the community property. Her surviving husband was the sole beneficiary of her estate, and all of her property was distributed to him. Her sole heir at law was her mother, appellant Irene L. Greene. Robert J. Walsh died, intestate, in June, 1943. His heirs at law are two sisters, a brother, [706]two nieces and two nephews. His estate consists of his separate property, the separate property of his wife, and the community property. The proper designation of the various items is important in the distribution because under section 228 of the Probate Code appellant and the heirs at law of the husband will share the community property, while under the provisions of section 229 of the Probate Code appellant is entitled, as statutory heir of the husband, to succeed to that portion of the estate that was the separate property of her daughter.

The total estate of Robert J. Walsh was appraised at $143,940.54. The interested parties were unable to agree as to the character of many of the items involved, and, as a result, the administrator petitioned the court, under section 588 of the Probate Code, for instructions respecting this property. Some evidence was introduced as to the character of some of the items, and certain stipulations were entered into as to other items. The court then instructed the administrator to treat certain personal property as the separate property of decedent, certain real estate as the separate property of Julia A. Walsh, and that “all other property” listed in the inventory should be treated as the community property of the deceased and his wife. The heirs agree that the order was correct as to all the property except certain jewelry inventoried at about $2,500. Appellant Irene L. Greene con- '■ tends that such jewelry was the separate property of her daughter, and, as such, should be distributed to her. She appeals from the order only insofar as it relates to this jewelry.