Baldwin, J. and Cope, J. concurring.

This is an amicable suit to determine the rights of the parties under the will of Theodore Payne, late of the city and county of San Francisco. Payne died on the ninth of April, 1861, possessed of a large property in real estate, situated in that city, and leaving surviving him a widow, the plaintiff, and three infant children, the defendants, the lawful issue of himself and plaintiff. The real estate was common property belonging to the community existing between him and the plaintiff. By a will bearing date on the fourteenth of August, 1857, he gave all his estate, real and personal, to his wife, and appointed her sole executrix of the will, declaring that he waived all security for the performance of the trust reposed in her; and empowered her to sell the whole or any part of the estate, at public or private sale, as she might see fit, and for cash or on credit, without any previous application to any Court for authority for that purpose. In this will the children are not named. A letter from the decedent accompanied the will, addressed to his wife, in which he states, that he left his entire property to her, because of his unbounded confidence in her prudence and ability to-eianage the same; and that he made no mention of his children, knowing that she would do all that could be done for their welfare, and that to her judgment and maternal affecti<$n he trusted their interests.

*300 On the ninth day of March, 1861, being about to embark from JSTew York to San Francisco, he made a codicil, in which he refers to his will, stating its date, and provides, in case of the death of his wife and children before his arrival in San Francisco, for a different disposition of his property, and for ■ the appointment of another person as executor of his will, and concludes with a declaration that the codicil is to be effective only in case of such death of wife and children.

The estate is incumbered with debts, and the plaintiff, to whom letters testamentary have been issued upon probate of the will, has endeavored to dispose of a portion of it to pay them, but has met with embarrassments and difficulties, arising from doubts as to her rights and authority under the will; and, therefore, in the language of' the complaint, “ in order to avoid doubt, future litigation, multiplicity of suits and consequent loss and expense, and that her acts in the premises may be clearly lawful, and not calculated to cloud the title of the said real estate, and that the interests of all parties in the said estate may be guarded and protected,” she prays “ the aid and beneficent interposition of the Court ” in the construction of the will, and to define the interest she took under the same, and her authority as executrix. She claims: first, that she took the whole estate of which her husband died seized—one-half in her own right by virtue of the community existing between him and herself, and the other half as sole devisee under the will; but second, if the children are held to be forced distributees of the one-half of the estate in the same proportions to which they would have been entitled in case their father had died intestate, that then she has the right, as executrix under the will, to sell the estate or any portion of it, without the order or interference of the Probate Court, for the payment of the debts of the deceased, or for. any other purpose, and to pass to the purchaser such right and interest as he possessed.

The defendants, appearing by guardian appointed for that purpose, submit themselves to the jurisdiction of the Court, and unite in the prayer of the plaintiff for the construction of the will, but insist, in substance, that the omission of the testator to provide for them in his will was unintentional, and that they take, in conse *301 quence, the same share to which they -would have been entitled had he died intestate; and that the plaintiff possesses no authority to sell the estate, without the previous order of the Probate Court.

The Court below held that the plaintiff took the entire estate ; and hence the present appeal by the defendants.

The eleventh section of the Act of 1850, defining the rights of husband and wife, provides that “ upon the dissolution of the community by the death of either husband or wife, one-half of the common property shall go to the survivor, and the other half to the descendants of the deceased husband or wife, subject to the payment of the debts of the deceased; ” and it is urged that, by virtue of this section, the defendants—the descendants of the deceased Payne—became forced heirs at his death to one-half of the common property. We do not give such effect to the section in question. ■ As we construe it, one-half of the common property goes absolutely to the wife, and the remaining half to the descendants of the deceased husband—that is, to a particular class of his heirs— if not made by him the subject of testamentary disposition. Such was the construction given by this Court in Beard v. Knox ( 5 Cal. 252 ). In that case, the husband undertook to dispose by will of the entire common property. He gave to his wife a legacy of five hundred dollars, and bequeathed the balance of the property to his daughter; but the Court held, that he could only dispose of one undivided half, and that the wife was entitled to the remaining half, and also to the legacy, which was decreed to be taken out of the half which was subject to his disposition. “ The deceased,” said the Court, “ had no authority to dispose of but one-half of-the property ; this he might do to whomsoever he pleased.” That case was decided in July, 1855, and the decision has never been questioned. It has furnished a rule under which property of vast amount and value has been distributed. We have no doubt of its correctness; and we only affirm and follow it, in holding, as we do in the present case, that the plaintiff took one undivided half of the common property in her own right by virtue of the community existing between herself and husband; and that the remaining half was subject to his testamentary disposition. Whether the plaintiff took that remaining half as sole devisee depends upon the solution of the *302 question whether the omission of the testator to provide in his will for his children was intentional. The statute declares, that in case of such omission, the children shall be entitled to the same share in his estate as if he had died intestate, “ unless it shall appear that such omission was intentional.” (Laws of 1850, chap. 72, sec. 17.) The position of the defendants is, that the will must.be read alone; that the letter accompanying it is inadmissible; and that the codicil cannot be added to it to show that the omission was intentional. As to the admissibility of the letter, it is unnecessary to express any opinion. (See on this point, Wilson v. Foshet, 6 Met. 402 .) As to the codicil, we think the position untenable. The codicil refers to the will, and operates as its republication, and the two are to be regarded as forming but one instrument, speaking from the date of the codicil. * (1 Jarman on Wills, 174 ; 1 Williams on Executors, 175; Haven v. Foster, 14 Pick. 543 ; Van Cortlandt v. Kip, 1 Hill, 591 .) When thus considered together— as parts of one instrument—it is evident that the omission to provide for the children was intentional. The children are mentioned three times in the codicil, showing that they were in the mind of the testator at the time, and not overlooked in the disposition of his property. And the only object of the statute is to protect the children against omission or oversight, which not unfrequently arises from sickness, old age, or other infirmity, or the peculiar circumstances under which the will is executed. When, however, the children are present to the mind of the testator, and the fact that they are mentioned by him is conclusive evidence of this, the statute affords no protection if provision is not made for them. The inference follows that no provision was intended. (See Terry v. Foster, 1 Mass. 146; Wild v. Brewster, 2 Id. 570; Church v. Crocker, 3 Id. 18 ; Wilder v. Goss, 14 Id. 357.) We are of opinion that the plaintiff took the remaining half of the common property as devisee under the will, and is thus possessed of the entire estate.

*303 The only other question for consideration is, whether the plaintiff possesses authority to dispose of the estate without the previous order of the Probate Court; and upon this we have no doubt. The will, in terms, confers the authority, and the one hundred and forty-eighth section of the act relating to the estates of deceased persons, declaring that “ no sale of any property of an estate shall be valid unless made under order of the Probate Court,” applies only to sales in cases not provided for by the will. The statute is only operative in the absence of testamentary power. (See Norris v. Harris, 15 Cal. 256 .)

Judgment affirmed.

“ It has long been settled law that the republication of a will is tantamount to the making of that will de novo; it brings down the will to the date of the republishing, and makes it speaks as it were, atthattime. In short, the will so republished is a new will.” (1 Williams on Executors and Administrators, 179.)