James W. Cudworth died on the twelfth day of May, 1898, in San Francisco, where he had resided for virtually half a century. At the time of his death he was about seventy-three years of age and had lived with his family for a long period at 2018 Union street. His family consisted of his wife, Johanna Cudworth, and their two children, Boyal Wallace Cudworth and Emory Ahlers Cud-worth, aged, respectively, twenty and sixteen years at the date of his demise.

At the time of his death Cudworth owned several parcels of real estate in San Francisco, and also sundry stocks, mortgages, promissory notes, goods and chattels and cash money, and other personal property, of the total value, according to appraisement, of $138,325.35; real estate and improvements, $79,850.00, and personal property, $58,475.35.

On November 11, 1884, he made a will, a copy of which is here inserted with the codicil thereto dated May 11, 1893:

These instruments were drawn by one of the subscribing witnesses, Mr. Albert N. Drown, a practicing lawyer in this city and county for more than thirty years, who testified at the time of probate that the testator was at the dates of the will and codicil, and for many years next prior to the death of decedent had been his client and was well known to him.

Mr. Drown testified that the documents were in his handwriting and were prepared by him at the request of testator, and in accordance with his instructions and wishes.

On the second day of June, 1898, these papers were admitted to probate and letters testamentary thereupon were issued to Gay Allender Rosenburg, the person named in the codicil, who was also the son-in-law of the widow of the testator, having been married to one of the two daughters by her former marriage, to which allusion is made in the third clause of the will. Cudworth himself had been married twice, as appears by the fifth clause, but there was no issue of that union, and on September 13, 1876, he intermarried with Johanna, with the result of the birth of the two boys, Royal and Emory.

The petition for probate of will ivas by A. W. Cudworth and G. A. Rosenberg, the executors named therein; A. W. Cudworth subsequently renounced right to letters and Rosenberg thus became sole executor.

The usual proceedings in probate administration were then had including the making and return to the court of “a full, true and correct, inventory and appraisement of all of the estate of said decedent” by the executor on July 15, 1898, in which it is recited that “all and singular the property and estate mentioned or described in the foregoing inventory was claimed by said James W. Cudworth to be his separate property; and all of the same was, as far as can be ascertained by said executor, the separate property of said decedent.” *523 The same executor in his report accompanying final account and petition for settlement and for final distribution makes the following recital.

The attorney of record for the executor is the same gentleman who drew the will, as testified to by him, and who drew and signed as such attorney the petition for distribution, and whose- careful and accurate conduct as attorney is manifest in all his work.

The widow applied for a homestead July 20, 1898, selecting the same parcel of property described in the third clause of the will and therein devised to her for life or until remarriage as a home for herself and her children by both marriages. This was and had been the home and homestead of decedent and family for many years, although not made such by statutory selection during his lifetime; but the widow applied to the court to set apart the same as a homestead for her use and that of the minor children of deceased “out of the real estate belonging to the decedent, as the said testator, in his last will and testament, declared the entire property owned by him to be his separate estate,” and on August 4, 1898, her petition was granted and the homestead set apart. Her attorneys were Chiekering, Thomas & Gregory.

Now comes the widow and claims that the entire estate was community property, although her husband expressly and solemnly declared in his will, drawn by and under the advice of the able counsel who had been for years his attorney *524 and who is ■ and has been continuously the adviser of the executor, that all of his property was his separate estate, and disposed of it as such, a life estate being given to the widow in- the real property comprising the family home, remainder equally to the two sons.

No matter how express and solemn this declaration may be..in.form nor how well advised it may be presumed to have been, it does not of itself establish the fact,

Under the advice of the same attorney the executor states in his petition for distribution that a large part of the property. and. estate was acquired during the marriage of James and' Johanna, and was community property; but.he is unable to ascertain how much, and leaves that difficulty to be determined by the'court.

All- of the property belongs to the community unless it can be shown to have been acquired in the way prescribed by the statute for the acquisition of separate property. The evidence shows that the decedent testator owned at the time of his-' marriage all of the real estate of which he died seised. There were no improvements of consequence on the real estate at the time of decedent’s marriage with his second spouse; and' I- think that the testimony establishes that the subsequent improvements were made with decedent’s own money. The real estate and improvements are, therefore, to be considered separate' property.

As to the personal property described in the inventory and appraisement, it was all acquired during the community by purchase, and must, in the absence of clear and convincing evidence to the contrary, be held to be community property. In default of proof of such degree the presumption becomes absolute and conclusive.

' Although counsel for Royal Wallace Cudworth has- presented á most elaborate and ingenious array of figures to support the deduction that it all came from decedent’s funds, I think the evidence is too obscure to warrant such conclusion as to the personal property.

The: "money invested in the personal property cannot be said to' have been traced by plain and connected channels to the separate estate of decedent. None of this personalty *525 was acquired prior to the marriage, and there is no satisfactory proof that it was the product of the proceeds of the sales of property which decedent possessed prior to his second marriage.

This Case was Before the supreme court in 133 Cal. 469 , 65 Pac. 104 .

As to what is Community Property, see note in 4 Cof. Prob. Dec. 42.