In re Estate of Fay

There are two questions to be determined-on this application: 1. Is the property of the estate community or separate property? 2. Is the trust clause “6” of the will valid or invalid ?

1. Petitioner refers to the testimony of Edward M. Buckley and his wife, Mrs. Buckley, who each testify as to the declarations of John Fay, deceased, made as late as 1900— to the effect that all his estate was community property. *271 Such was also the testimony of Mary Waller, 'John Fay and Luke Fay.

The declarations of deceased properly admitted to show the fact, and that property was a gift: Arkle v. Beedie, 141 Cal. 461 , 74 Pac. 1033 ; Higgins v. Higgins, 46 Cal. 263 ; Read v. Rahm, 65 Cal. 344 , 4 Pac. 111 ; Tillaux v. Tillaux, 115 Cal. 672 , 47 Pac. 691 ; Kaltschmidt v. Weber, 145 Cal. 596 , 79 Pac. 272 .

The only property owned by John Fay at the time of his marriage was the one-lialf of lot 693 on Chestnut street upon which the soap factory was located. His marriage occurred on May 7, 1860. On June 19, 1866, he became financially embarrassed and transferred his property to David Fay for ten thousand dollars ($10,000)—deed read in evidence. .On the same day, David Fay transferred the same…