Estate of Dargie

This is an appeal by the executors and trustees and by the residuary legatees from a partial decree of distribution, whereby three-fourths of the estate of the deceased was distributed to his surviving wife, one-half as community property and one-half under the terms of the will. The correctness of the decree depends upon whether or not, by the provisions of the third division of the will, the deceased intended to deal with the entire community property, or only with that portion thereof (one-half) over which he had the power of testamentary disposition. (Civ. Code, sec. 1402.) The provision in question reads as follows (italics ours) :

It will be observed that the decree stated that certain property was “owned and possessed” by him at the time of his marriage, and was still “owned and possessed” by him, but directs that such property and all other property “possessed” by him be considered as community property. He then bequeaths and devises and confirms to his wife one-half of all property “possessed” by him at the time of his death. He evidently considered that the entire community was “possessed” by -him, as it was, in fact, and deals with it as a whole. The deceased does not…

I concur in the judgment. The question is one of interpretation, simply, and I agree with Justice Wilbur’s conclusion that a reading of all the provisions of the will discloses the testator’s intent that the entire estate possessed by him in his lifetime should be regarded as community property, and that the widow should receive only one-half of that entire estate. In other words, the testator in speaking of “the property, real, personal, or mixed of which I may die seised or possessed,” had in mind the whole of the community property, and not merely the part of it which was subject to his power of testamentary disposition.

It should, perhaps, be added that no member of the court, as I understand, is disposed to depart in the slightest degree from the familiar and well-settled rules governing the construction of wills made by married men possessed of community property. This court has consistently ruled that such a testator is presumed to know that his power of disposition by will does not extend to the surviving wife’s half interest in the community property, and that the will is ordinarily to be read as covering, by its dispositions, only the property which the testator had the…