In re the Estate of Gilmore

Vanclief, C. Appeal from decree of distribution under the following provisions of the will:—

[241]“Thirdly.—I give and bequeath to my wife, Elizabeth Gilmore, one half of all my property, both real and personal, of which I shall be possessed at the time of my death, the same to be equitably divided by my executors, giving to her the privilege of taking her half of said real and personal property, if the same can be satisfactorily divided; if not, then the said executors shall sell the same, or such portion as cannot be so divided, and give to my said wife one half the net proceeds of the same.

“ Fourthly.—I give and bequeath the remaining half of all my property, both real and personal, of which I may die possessed, to the following persons, to be divided by my executors equitably between them, and each of them, share and share alike.”

The persons named, who are to take under this fourth paragraph, are his daughter by a former marriage and her children, and the children of a deceased daughter by the former marriage.

All the property affected by the will was community property of the testator and his wife Elizabeth; and the court below construed the will as giving to the widow, in addition to one half of the community property to which she was entitled by law, an undivided one half of the residue that was subject to the testamentary disposition of the husband. Was this in accordance with the expressed intention of the testator, is the principal question to be decided.

It will be observed that the will does not specifically describe any property, but simply gives to the wife “one half of all my property, both real and personal, of which I shall be possessed at the time of my death.”

Conceding that the will is susceptible of two possible constructions,—one, that the testator intended to devise all property of which he should be possessed at the last moment of life, including the whole of the community property over which he had the power of disposition during life; and the other, that he intended to devise [242]only his property then in his possession, over which alone he had the power of testamentary disposition,—still, well-settled rules of construction and presumptions of law require the adoption of the latter construction, which accords with the decree of the lower court.