In re Estate of WILLIAM E. DARGIE, Deceased. M. C. CHAPMAN et al., etc., Appellants, 179 Cal. 418

WILBUR, J. This is an appeal by the executors and trustees and by the residuary legatees from a partial decree of distribution, whereby three-fourths of the estate of the deceased was distributed to his surviving wife, one-half as community property and one-half under the terms of the will. The correctness of the decree depends upon whether or not, by the provisions of the third division of the will, the deceased intended to deal with the entire community property, or only with that portion thereof (one-half) over which he had the power of testamentary disposition. (Civ.

Code, sec. 1402.) The provision in question reads as follows (italics ours) : “I hereby certify and declare that at the time of my marriage with my wife Erminia Peralta Dargie, I owned and possessed in my own right, property of the then value of about one hundred thousand dollars, and which said property is still owned and possessed by me, and is a part and portion of my estate, but that for the purpose of this my said will, all of the property of which I am noto possessed may be considered as community property, and I do hereby give, bequeath, devise, and confirm unto my said wife Erminia Peralta Dargie, one-half of all the property, real, personal or mixed, of which I may die seised or possessed, being the same portion thereof to which she would be entitled in the event of all of my said property being community property.” It will be observed that the decree stated that certain property was “owned and possessed” by him at the time of his marriage, and was still “owned and possessed” by him, but directs that such property and all other property “possessed” by him be considered as community property.

He then bequeaths and devises and confirms to his wife one-half of all property “possessed” by him at the time of his death. He evidently considered that the entire community was “possessed” by -him, as it was, in fact, and deals with it as a whole. The deceased does not bequeath one-half of “my property,” or of “my interest in the community property,” or of the “property over which I have testamentary power,” but one-half of all the property “possessed” by him.

To make assurance doubly sure, he adds, “being the same portion to which she would be entitled in the event of all of my property being community property”—not, be it observed, the same portion she would receive in the event that deceased left no will (three-fourths, there being no father or mother or brothers or sisters, secs. 1402, 1386, subd. 2, Civ. Code), but the portion of the community property she is “entitled to” as of right, namely, one-half. (Civ. Code, sec. 1402.) During the lifetime of the husband, he is the owner and entitled to the possession of all the community property.

Upon his death the surviving wife becomes entitled to one-half of the community property as the survivor of the marital community, regardless of the existence of other heirs or of a will, but the other half passes by will, or, in case of intestacy, by the laws of succession, to his heirs, including the surviving wife in certain eases. (Dargie v. Patterson, 176 Cal. 714, [169 Pac. 360].) One-half, then, is the “portion” of the community property, to which the widow is entitled, by virtue of its community character.

That the testator was referring to this half of the property to which she is entitled of right is also further indicated by the use of the word “confirm” in the following clause: “I do hereby give, bequeath, devise' and confirm unto my said wife Erminia Peralta Dargie one-half of all the property ... of which I may die seised or possessed.” It is true that the additional words, “I do hereby give, bequeath and devise . . . unto my said wife,” etc., import more than a mere recognition of the right over which the testator had no control.

But the words are appropriate to the purpose of the testator, which was to “give, devise and bequeath” to his wife one-half of all of Ms separate property, which, for convenience, he directed to be considered as a part of the community property.

WMle it is true that the direction that the separate property should be treated as a part of the community property was, by implication, a devise and bequest to his wife of a one-half interest therein, it was more appropriate that this should be done, at it was, by express bequest and devise. ‘ In the argument, counsel treat the will as, in effect, stating that decedent’s separate property consisted of one hundred thousand dollars.

If, however, at the time of his marriage, the deceased owned a hundred thousand dollars’ worth of property, that property, with all the rents, issues, and profits thereof, continued to be his separate property. (Civ. Code, sec. 163.) The marriage occurred December 15, 1881. The will was drawn twenty-nine years thereafter (1910). The deceased died in 1911, at which time his estate was appraised at nine hundred and thirty-three thousand nine hundred dollars.

It might be exceedingly difficult to determine what portion of the property left by him was derived from his separate property, and the rents, issues, and profits thereof, and what portion, if any, constituted community property. It is quite conceivable that,1 if the source of all the property left by the deceased could have been ascertained, it would have been discovered that it was largely separate property.

It is, therefore, evident from the will that the deceased intended to prevent the difficulty of ascertaining what portion of his property was community, and what portion separate property, and that he desired his wife to have one-half, and no more, of all the property left by him, whether community or separate property. The will is not susceptible of the construction that the testator was therein dealing with only his separate property and the one-half of the community property over which he had testamentary control, for he expressly provides to the contrary.

The court was in error in allowing the surviving wife three-fourths of the property of the deceased. She is entitled to one-half of the separate property of the deceased and to one-half of the community property. Decree reversed. Shaw, J., Richards, J., pro tem., and Lorigan, J., concurred.