Estate of Cudworth

The two appeals taken to this court in In the Matter of the Estate of Cudworth, Deceased, may be considered together. Both are prosecuted by the son, a devisee under the will. The one is from that part of the decree settling the final account of the executor, wherein he is allowed full commissions upon the amount of the estate accounted for by him. The other is from that part of the decree of final distribution which adjudges certain property left by the deceased to be community property, instead of separate property, and distributes it accordingly.

1. The estate of deceased consisted of real property valued at $79,000; stocks, bonds, notes, and mortgages valued at $38,567. The executor accounted for $145,579, the increase being made up of rents, interest, and dividends collected by him. It is contended that the property of the estate was distributed in kind, involved no labor beyond the custody and distribution of it, and that therefore, under section 1618 of the Code of Civil Procedure, commissions should have been computed upon all of the estate above the value of twenty thousand dollars at one half of the ordinary rate fixed by law. But the court in probate found, “ that all…

—I concur in the judgment; but I do so most reluctantly, and only because I see no legal way •to escape the harsh treatment of respondent which our law on the subject of husband and wife allows. In nearly all other civilized countries, marriage immediately vests in the wife some estate in the property owned by the husband at the time of the marriage; but such is not the law here, and if he chooses, as in the case at bar, to afterwards do nothing except to collect his rents and profits, he may, after a long period of faithful wifehood, leave her penniless. Her only chance to acquire by marriage any interest in property is to marry a man who has nothing, with the hope that he may afterwards earn something in which she will have a community right. The case at bar is one of peculiar hardship; for here the wife, having a slender income from a little separate property which she owned, allowed the husband to take that income, and gets nothing back from it. The monthly allowance which he let her have — and whether for personal or domestic purposes does not appear — was very small for a man of his means. But the conclusion reached in the opinion cannot, under the law, be avoided.