Estate of Rossi

At the close of the argument, Sloss, J., delivered the opinion of the court, Shaw, J., and Lawlor, J., concurring:

By his will the testator left one-half of his “property or possessions ’ ’ to his wife and the other one-half to be dis tributed in equal shares among his sons and daughters. The estate was all community property. The court below charged the widow with inheritance tax on only one-half of the entire community property, and from this order the treasurer appeals.

There is nothing in this will to indicate an intention to make the testamentary gift to the widow stand in lieu of her community interest. The rule has been established by many cases that in the absence of something in the will to indicate that intention, the widow will take one-half of the community property by virtue of survivorship and will take whatever is given her under the will in addition. This rests upon the presumption that the testator made his will in contemplation of the rule of law that his power of testamentary disposition extends to only one-half of the community property. As he cannot give away the widow’s half of the community property by will, he is presumed to make his will with reference…