Olmstead
Smith v. Olmstead
Opinion
Lead Opinion
Haven, J.
This is an action for the purpose of determining conflicting claims to real property.
The record shows that one Z. B. Smith, now deceased, in his lifetime made » last will, by which, after directing the payment of his debts, he, in terms, gave to his wife all of his property, with “ absolute power to sell any or all of said real and personal property, at public or private sale, with or without advertisement, and without application to any court, and without approval or authority of any court whatever.” In a subsequent clause the wife was also named as executrix of the will. She duly qualified as such, and sold to the defendants the property described in the complaint. Such sale was made without any previous order therefor; but was after-wards confirmed by the court in which the administration of her deceased husband’s estate was pending. The land was community property. The record does not show that the sale was necessary for any of the reasons stated in section 1536 of the Code of Civil Procedure, that is, in order “to pay the allowance of the family, or of the debts outstanding against the decedent, or the debts, expenses, or charges of administration, or legacies.”
The…
Concurring Opinion
Harrison, J.
I concur in the order affirming the judgment, both for the reasons expressed in the opinion of Mr. Justice De Haven, and also upon the following considerations:—
Section 1402 of the Civil Code provides that “upon the death of the husband, one half of the community property goes to the surviving wife, and the other half .... goes to his descendants, .... subject to his debts, the family allowance, and expenses of administration.” These are the “ purposes of administration,” referred to in section 1384 of the Civil Code, and are also the objects for which the court is authorized, under section 1536 of the Code of Civil Procedure, to direct a sale of the property of the decedent. The right of the children and the right of the surviving wife to the community property exist by virtue of the same section of the code, and are declared in identical words; and inasmuch as it is the settled rule that the right of the surviving wife to her half of the community property vests in her im *589 mediately upon the death of the husband (Estate of Silvey, 42 Cal. 210 ), it must also be held that the right of the children to their half of the same property vests in them at the same time.