In re Estate of Baubichon

By the Court, McKinstry, J.:

The deceased and Marguerite Dutrech were married at Bordeaux, France, in the year 1838.

In view of the marriage they entered into a contract, which contained the following covenants:

“Article 1. The future spouses declare that they renounce both the dotal regime and the legal community.

“Art. 2. In consideration of the said marriage Mrs. widow Dutrech gives to Miss, the future spouse, the moveables hereinafter designated: a complete bedstead made of walnut, a paillasse, a mattress, a feather-bed, two blankets, with a wreath trimming of white cotton, a clothes-press, and a commode of walnut wood, the whole valued at three hundred francs. Mrs. widow Dutrech obligates herself to deliver these objects to the future spouses as soon as they will prefer not living with the said Mrs. Dutrech, it being understood that the value given the furniture shall not remove .the ownership from the future wife.

“Art. 3. There shall be between the future spouses 'a community of acquisitions which shall be regulated by articles one thousand four hundred and ninety-eight and one thousand four hundred and ninety-nine of the Civil Code. This community is further agreed upon the express condition that the whole of the said acquisitions shall belong to the survivor of the future spouses in fee and usufruct, whether there be any children of the said marriage or not, and this not as a gift, but according to agreement as between partners.

“Art. 4. The future spouses reciprocally make donation in favor of the survivor of them of the universality of the goods and rights of the nature of separate property, which the first one dying shall leave, except the reductions prescribed by law in case of descendants or ascendants surviving the first deceased spouse.”

Jean and Marie Baubichon (afterward Marie Beyselance), the issue of said marriage, were born at Bordeaux in the years 1840 and 1842, respectively; in 1870-—-and prior to the death of Jean Baptiste, the deceased—the wife, Marguerite, departed this life.

The deceased died in San Francisco, whither he removed, his family remaining in France, prior to the death of his wife, leaving a last will and testament in words and figures following:

“In the name of God, amen! I, Jean Baptiste Baubichon, of the city and county of San Francisco, being of sound and disposing mind and memory, and desirous of settling my worldly affairs while I have strength and capacity so to do:

“Do make, publish and declare this to be my last will and testament, hereby revoking and making null and void, all other and former last wills and testaments by me made.

“As the executors of this, my last will and testament, I hereby nominate and appoint my friends, Joseph Begue of San Francisco, and Jean Mercy and Louis Bouvier of San José. And my will is, that my said executors be permitted to qualify and act as such executors without having to give any bond or other security whatever.

“I give and grant full and absolute power and authority unto my said executors to enter into possession of all my property, or to sell or convey the same; the said Mercy to sell my sheep; the said Bouvier to sell and convey my real estate in the county of Santa Clara; the said Begue to receive and collect all and singular the sums of money coming to my estate, and remit the same to my heirs hereinafter mentioned, without any control, supervision, decree or order by or from any Probate or other Court.

“I give, devise, and bequeath all and singular, my estate and property, real, personal and mixed, wheresoever situated and being, and of which I may die seized or possessed, or to which. I may be entitled at the time of my death, unto my executors aforsaid, in trust and confidence, nevertheless, and to and for the following uses and purposes, to wit:

“To give, remit or deliver the sum of one dollar ($1) unto each—Marguerite Dutrech, to whom I was once married, and her child; Eugene and her child, Marie, all of Bordeaux.

“To give, remit and deliver the sum of two thousand dollars gold coin, unto each of my frends, Jean Mercy and Louis Bouvier, aforesaid.

“All the rest, residue and remainder of my estate aforesaid, after the payment and delivery of the above legacies, I direct my said executor, Joseph Begue, to divide into two equal portions, and to give, pay, remit and deliver one portion thereof to my sister, Francoise Baubichon at Saint Julien, Molie Molette, Dep. de la haute Loire, France; and to her child or children, in case of her death. And the other portion to give, pay, remit and deliver unto, my brother Joseph Baubichon, at Bourg Argental, same department, and in case of his death, to his child or children.

“In witness whereof, I have hereunto set my hand and seal at the city of San Francisco, this 30th day of August, 1871.

J. B. Baubichon. [Seal].”

His son and daughter contested the distribution of the estate in the Probate Court of San Francisco, on the ground, that—by virtue of the ante-nuptial contract and the laws of France—the decedent could devise, bequeath, or dispose of only one third part of the estate in his name and possession; the contestants claiming that they were entitled to two thirds.

We think the last clause of the fourth article of the ante-nuptial contract is applicable only to the fourth article. To attach it to, and by construction make it a part of the third, would render that article contradictory, since, by the express terms of the third article, “the whole of the acquisitions ” was to belong to the survivor of the spouses, in full property and use, whether there should be any children of the marriage or not.

It is claimed, however, that—without reference to the last clause of the fourth article—the French law entered into and became part of the contract, and by that law the contestants acquired rights which could not be divested by the contract, made in anticipation of the marriage; that the contestants w'ere forced heirs, and could not thus be deprived of their inheritance.

It was admitted at the argument that the contestants would have no standing in a California Court, save for the ante-nuptial contract; but this admission was accompanied by the claim that the contract was void in so far as it attempted to deprive the children of the marriage of the share of the community property to which they were entitled as forced heirs.

The statement of the position taken by the contestants, indicates that their claim is not based on the contract, but is asserted against the contract.

The contestants urge, although the instrument (as they assert,) is void as against their claim to two thirds of the estate, and although they can claim only through the instrument void in the particular named, yet because the contract is to be interpreted in the light of the French law, this Court should determine that they are entitled to the same share that they would be held to be entitled to in a French Court, had the deceased died at the domicile of the marriage. But this is merely to ask that we should order the estate to be distributed, not in accordance with our own, but in accordance with the foreign law.

It was expressly admitted, and we think correctly admitted, that we are only authorized to direct distribution, in the absence of an ante-nuptial contract, in the manner required by the statutes of our State.

Decree affirmed. Remittitur forthwith.