I concur in the judgment. The question is one of interpretation, simply, and I agree with Justice Wilbur's conclusion that a reading of all the provisions of the will discloses the testator's intent that the entire estate possessed by him in his lifetime should be regarded as community property, and that the widow should receive *Page 422 only one-half of that entire estate. In other words, the testator in speaking of "the property, real, personal, or mixed of which I may die seised or possessed," had in mind the whole of the community property, and not merely the part of it which was subject to his power of testamentary disposition.
It should, perhaps, be added that no member of the court, as I understand, is disposed to depart in the slightest degree from the familiar and well-settled rules governing the construction of wills made by married men possessed of community property. This court has consistently ruled that such a testator is presumed to know that his power of disposition by will does not extend to the surviving wife's half interest in the community property, and that the will is ordinarily to be read as covering, by its dispositions, only the property which the testator had the right to devise or bequeath, i e., his separate property and an undivided half of the community property. The gift to the widow of "half of my estate" would, therefore, in the absence of words indicating a contrary intent, carry to her one-half of the estate subject to testamentary disposition, and she would take, in addition, one-half of the community property as survivor. A few citations will suffice. (Beard v. Knox, 5 Cal. 252, [63 Am. Dec. 125];Estate. of Silvey, 42 Cal. 210; Estate of Smith, 108 Cal. 115, [40 P. 1037]; Estate of Vogt, 154 Cal. 508, [98 P. 265];Estate of Prager, 166 Cal. 450, [137 P. 37].) In the present case, however, the wording of the will is such that the presumptions referred to cannot be applied without doing violence to the testator's declared intention.
*Page 423Angellotti, C. J., concurred.