Lahaney v. Lahaney , 208 Cal. 323 ( 1929 )

I concur. I have been led to concur in the conclusion in this case and, in a large measure, in the reasoning upon which it rests. It seems that the death of Lahaney, prior to action of any kind or even knowledge on the part of the wife respecting the execution of said deed, is an important factor. Had he deeded the whole property to the sister, the wife, after his death, could have avoided it only as to the one-half thereof representing her share of the community estate. (Dargie v. Patterson, 176 Cal. 714 [169 P. 360].) If the deed is clear in its terms and shows the husband intended to give his sister the whole of the one-half of the community property over which he had testamentary power, and to exclude his wife therefrom, the deed, delivered after his death, is tantamount to a will or bequest which made this intention clear. In other words, the husband's intention is the controlling element. If he intended to exclude the wife and the wife did not or could not act prior to the falling in of the community estate upon his death, then his intention must be given effect. The deed seems to bear no other construction than that the husband did so intend to exclude the wife from the community property over which he had the right of testamentary disposition.