38 P. 950 | Cal. | 1894
Robert Smith, who died April 31, 1892, disposed of all his property by his last will as followsi: “I give and bequeath to my daughter, Mrs. Mary Cardiff, now of San Benito county, California, a life estate in my home ranch in San Benito county, California, the same being described as follows, to wit, being the southwest quarter of section 6, township 15 south, range 7 east, M. D. M.; also all live stock, farming utensils, household furniture, and in fact all personal property that may be on the said ranch, excepting money on hand, securities, and other evidences of money due me; to have and hold and use during her natural life as her own, and at her death to pass in fee to her sons, Robert Cardiff and Geo. H. Cardiff, and to their heirs in fee simple. But, in the event I survive my said daughter, Mary Cardiff, then, at my death, said property to pass directly to her said sons, Robert and George Cardiff. This bequest, however, is not to take effect during the lifetime of my wife, Mary Smith, who is now residing with me on the above-described property. In the event she survives me, she is to have full and free use and absolute control of said real property and personal herein referred to, and after her
The appeals come here on the judgment-roll, consisting of the final account as rendered by the administrator, the petition of the administrator for the allowance of his account and for distribution of the estate, the written objections to the account, the written notice of Mary Smith that she claimed one-half of the entire estate, the written findings of the court, the order of the court settling the administrator’s final account, and the decree of distribution: Estate of Isaacs, 30 Cal. 106; Estate of Page, 57 Cal. 240; Miller v. Lux, 100 Cal. 609, 35 Pac. 345, 639. There is no bill of exceptions, nor any statement of evidences, though it appears that the findings of fact are based upon evidence produced by the parties. Therefore the findings of fact, at least so far as they are self-consistent, must be accepted as true. The appellants contend that the court erred in distributing the property according to the will of Robert Smith to the prejudice of the right of appellant Mary Smith to one-half of all the property, real and personal, described in the will. In support of this point they claim that the language of the will does not sufficiently evince an intention of the testator to devise more than his own half of the community property to overcome the presumption to the contrary, as held in the cases of In re Gilmore, 81 Cal. 240, 22 Pac. 655, In re Gwin’s Estate, 77 Cal. 313, 19 Pac. 527, and Estate of Silvey, 42 Cal. 210. But I think this is a mistake, and that the language of the will clearly indicates the intention of the testator to dispose of all the property therein described, including the interest of his wife. On the construction given it by appellants, no single provision of the will as expressed can be executed without disturbing and partly defeating all others. Besides, it is expressly stated that the will “is made with full knowledge of property rights of husband and wife, and with the knowledge and consent of my said wife.” This indicates very clearly that he actually knew what he is presumed to have known, namely, the law governing the rights of husband and wife as to com
It is contended, however, that the widow never elected to take, and never did take, under the will. But, as above shown, the findings of the court below are conclusive upon these points. As to her election, that court found the naked ultimate fact "that said Mary Smith, widow of said Robert Smith, has "elected to take under said will”; and also the probative fact that after the death of her husband, and prior to January, 1894, she said to Robert Cardiff that "she wished the will to stand.” As to the actual taking of the property under the will the court found: "That since the death of said Robert Smith said Mary Smith, his widow, conveyed all her interest in said property, mentioned in said will as vesting a life estate therein upon said widow, to Robert and George Cardiff.....She has remained in possession of said real property, and said personal property upon and about said real property, being the property described in the will as bequeathed to her a life estate, until the year 1893, when she conveyed all her interest therein as hereinbefore stated.” It should be observed here that Mary Cardiff, to whom was devised the second life estate in the land and personal property thereon, died after the death of the testator, so that her life estate never vested; and therefore, the effect of the conveyance or release of the life estate of Mary Smith to Robert and George Cardiff, the reversioners in fee, was to invest them with the absolute title to all the land and personal property thereon under the will. But if the will is not valid as to the widow’s half of that property, then her life estate and the reversion to Robert and George Cardiff were restricted to the testator’s half of the land and personal property thereon. Another effect of restricting the will to the testator’s half of the property would be to deprive William R., John A., and Jessie Smith of one-half of the specific legacies bequeathed to them. I think the findings of fact bring this case under the rule announced in the case of Morrison v. Bowman, 29 Cal. 347, affirmed in Noe v. Splivalo, 54 Cal. 207. In the
We concur: Searls, C.; Temple, C.
For the reasons given in the foregoing opinion the order settling the administrator’s final account and the decree of distribution are affirmed.