Estate of Atwell

Lois A. Atwell, widow of Edmund At-well, appeals from the decree of final distribution made and entered in the matter of the estate of said Edmund Atwell, deceased.

The estate of Edmund Atwell consisted entirely of community property as declared by his will. That instrument, which was holographic, contained the following provisions pertinent to the appeal now before us:

Before his death Atwell had conveyed the fee of the property to his wife and had retained certain leasehold interests in the property, which leasehold interests were admittedly a part of the community property. In its decree of final distribution the court recognized the ownership of the fee in the wife, and, treating Mr. Atwell’s leasehold interests as community property, distributed them one-half to the widow as of right; the other half to the named beneficiaries under Atwell’s will. The widow appeals, contending that by the terms of the first quoted paragraph of the will she was entitled to have distributed to her all of these leasehold interests, herein invoking the familiar principle of construction, that where a testator does not own all that he attempts to devise or bequeath, so much as he does own will go…