I dissent.

It was of the utmost importance to the appellant as the surviving husband to establish the status of the real property involved as community property. In his endeavor to prove it to be such he offered in evidence certain records in the case of Hunt v. Price, which was a prior action brought by the county treasurer against the deceased wife in her lifetime to have it established that said real property was her separate property and therefore subject to the state inheritance tax. In her answer to the petition of the county treasurer the wife denied that the conveyance of said real property to her by John J. Char nock was a deed of gift and affirmatively alleged that said conveyance was made to her for a valuable and valid consideration. She prevailed in that proceeding and the trial court, in its decree therein, found that “said deed was made upon a valuable consideration”. The decree described the consideration in detail, which consideration would constitute the property the community property of the spouses, and further found that “all the allegations in the answer of said respondent herein are true”. Based upon its findings in the decree itself the court necessarily concluded that the real property was community property, and that no inheritance tax was due.

The allegation of the decedent in her answer in the case of Hunt v. Price was a declaration against her interest in respect to said real property and the same was admissible against her successors in interest (sec. 1853, Code Civ. Proc.; subds. 2 and 4, sec. 1870, Code Civ. Proc.; Donnelly v. Rees, 141 Cal. 56 [ 74 Pac. 433 ]; Steinberger v. Young, 175 Cal. 81 [ 165 Pac. 432 ]; 10 Cal. Jur., p. 1098, and cases there cited).

The opinion of the majority sufficiently shows that the appellant in his offer to prove the declaration against interest of the decedent was endeavoring to offer the “judgment-roll” in Hunt v. Price. Furthermore, the record discloses that it was the judgment-roll which was offered. Not only did counsel refer to the “judgment-roll” in his offer, but the entire judgment-roll is printed in the transcript as the judgment-roll offered in evidence. From this record I am convinced that both counsel and the court considered that the judgment-roll in that proceeding had been offered in evidence. True, in one place in the record counsel referred to his offer as of the “judgment decree”. But it seems to me to be a too narrow construction of the language of counsel to confine his offer to that of the decree alone.

Furthermore, assuming that the offer was of the decree alone, the decree itself combines findings of fact, conclusions of law and the judgment. It is therein found that all of the allegations of the answer are true. To interpret the decree in this respect reference might well be made to the answer and to the declaration relied upon. But if this be not strictly so, the decree in that proceeding established the status of the real property at the behest of the decedent. Said decree was invited by her own sworn statement, and those relying on her asserted title contrary to her former solemn averment should not be relieved from the effect of her declaration. (See Estate of Hill, 167 Cal. 59 [ 138 Pac. 690 ].) To allow the respondents here to prevail is to permit them to belie the sworn statement of their predecessor in interest pursuant to which the decedent obtained a favorable judgment from the superior court.

The present case, without the declaration against interest, is a close one on the facts. That is to say, with the declaration excluded, a decree in favor of either party would find ample support in the evidence. With the declaration in evidence it is probable that the order from which this appeal was taken would not have been made. The refusal to receive it in evidence was highly prejudicial, and in my opinion the order should be reversed.

Thompson, J., concurred.