Estate Of Murphy

544 P.2d 956 (1976)

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Nature of the Case

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Facts

During the marriage, H had separate property that produced income. H commingled his separate property and did not keep good records. During marriage, community income was more than enough to meet the family’s expenses. H's legatees brought an action in part to determine the character of H's estate assets. H’s legatees argued that there was more than enough separate money to purchase certain assets. H died on April 29, 1971, survived by his wife Royene (W), whom he had married in 1942. H's will purported to place all of his and W's community property, as well as his own separate property, into two trusts in which W would have life interests plus a general testamentary power of appointment in the trust that included her community property interest. The will declared, however, that 'if my wife elects to take the rights given her by law, she shall nevertheless be entitled to the benefits given her by this Will with respect to all property remaining subject to it.' W died on December 14, 1971, and had not exercised the power of appointment and had not declared any election to accept or reject H's testamentary disposition of her community property interest. W's executrix and sole legatee filed a Declination to take under the Will. H's executor thereupon filed a proceeding to determine interests in his estate. The trial court awarded to W's executrix a half interest in all property of the probate estate which she claimed to be community. H's legatees appealed.