Gardner

This is an appeal by the Controller of the State of California from an order fixing inheritance tax. He urges that the ease of Estate of Radovich, 48 Cal.2d 116 [ 308 P.2d 14 ], should be overruled.

The ease is submitted on an agreed statement of facts.

Belle Clarke, the decedent, left a will devising all of her property to Juanita C. Gardner, her executrix and daughter, except for specific devises of $3,000 for each of her two grandchildren. The estate contains ample assets, in addition to those claimed by the executrix personally, to pay the specific devises.

A claim by the executrix for $27,000 was allowed in the probate proceeding after a hearing on the ground that she expended more than that amount upon improvements to real property owned by the decedent, that the improvements were made pursuant to an oral agreement of reimbursement, and that decedent did not during her lifetime repay the executrix for such expenditures.

After a hearing the probate court also entered a decree establishing that the decedent at her death held certain properties appraised at $94,397.58 in trust for the executrix. The basis of the finding of the trust was the distribution of the estate of C.…