IN THE MATTER OF THE ESTATE OF D. V. B. HENARIE, DE CEASED. [No. 22,363; decided March 28, 1901.] Community Property, What is.-On the Application for Partial Distribution by the widow in this case, the court finds that the investment of $10,000, out of which the estate of the decedent developed, was community property, with the possible exception of $100 raised by him from the sale of a watch owned by him before marriage. Community Property-Adjustment of Right to in Dismissal of Divorce and Execution of Release.-Where a woman institutes an action for a divorce and a division of the common property, but before answer filed the suit is dismissed by stipulation, and as a part of the proceedings she receives valuable consideration in full settlement thereof and executes a receipt to that effect, the dismissal and release operate as a bar to a petition by her for partial distribution after his death. Application for partial distribution by Mary A. Henarie, the widow of the decedent. Van R. Paterson, and E. B. Young, for the petitioner. A. Heynemann, for the respondent, Radgesky. Myrick & Deering, for the absent heirs. COFFEY, J. Mary A. Henarie petitions the court, alleging that she is the surviving wife of D. V. B. Henarie, who died in San Francisco, of which city he was a resident, on the 28th of November, 1899, leaving a last will admitted to probate on the 23d of February, 1900; that all the property of which the testator died seised was community property, acquired after their intermarriage on December 24, 1854, to one-half of which she is entitled in her right as surviving spouse. This is the pith of her petition. In opposition the legatees and devisees deny each and all of the allegations specifically, and assert that petitioner, for a valuable consideration, on the 27th of February, 1886, released, relinquished, renounced, waived and surrendered any and all rights she had or may have, or might, could, would, or should have or have had to any of the property of decedent, separate or community; and that on or about the 2d of January, 1889, for a valuable consideration, she made, executed and delivered an instrument in writing in full settlement, satisfaction and discharge of any interest which she might have in the community property of the intermarriage of herself and decedent. Opponents further aver that petitioner instituted a suit for divorce against decedent involving the community rights of the parties, and that in said proceeding for a dissolution of their marriage she did receive valuable consideration in full settlement, satisfaction and discharge of her claims to any of the community property, and that pursuant to the terms of settlement a judgment of dismissal of the action was given and entered on January 9, 1889, and that by reason of these premises she is forever barred and estopped from claiming any right in the estate of decedent. Opponents finally aver that petitioner has property acquired by her subsequent to her marriage with decedent, otherwise than by gift, bequest, descent, or devise, and that the same is community property; that the same is of great value, and they ask that she be compelled to disclose the facts in regard thereto, and they assert that at least one-half thereof is subject to the testamentary disposition of the decedent. At the time of their marriage on December 24, 1854, the parties were penniless, at least they were substantially without property, and each was without employment, and it was not until about eight months thereafter that the husband secured an engagement as a clerk in a hotel; in that situation he subsisted for about eight months more, and then work became slack and irregular until September 1, 1856, when he entered the mercantile house of Peter Chrystal, where he continued for two years. During his service as a hotel clerk he received $100 a month and found. Of his salary he gave one-half to his wife, a thrifty and industrious woman, who rented rooms to lodgers and kept a boarder, and in every way known to a frugal and skilled housekeeper saved every penny possible until she accumulated a sum of $500 out of the money given to her by her husband "to live on." After two years spent with Chrystal an opportunity offered to the husband to form a copartnership connection with E. Martin in the liquor business, Mr. Martin proposing to sell him an interest for $1,000. He communicated this proposal to his wife, but lamented his lack of the wherewithal, having but $400 in cash, whereupon she revealed to him that she had saved out of what he had given to her $500, which she then and there gave to him and he sold his watch for $100, thus making the requisite sum of $1,000, with which he purchased an interest in the firm of E. Martin & Co., thus laying the foundation of the fortune of which he died possessed. According to the testimony of the wife, he was engaged in no other business, and continued to be so exclusively occupied down to the year 1886, when in February of that year, differences having arisen between them, there was an adjustment in the form of a deed of separation, which is here inserted: "This indenture made and entered into this 27th day of February, A. D. 1886, by and between D. V. B. Henarie, of the City and County of San Francisco, State of California, the party of the first part, and Mary Ann Henarie of the same place, the party of the second part, Witnesseth: "That whereas the parties hereto have been for many years and still are husband and wife, and "Whereas, unhappily differences and disagreements have arisen, and do still subsist, between them by reason whereof they have agreed to live separate and apart from each other during their natural lives. "And whereas the party of the first part has this day conveyed, transferred and assigned by Deeds purporting to be Deeds of Gift of real property and certain transfers of personal property to the party of the second part to hold, possess, and enjoy as her separate property and estate, Sixty (60) shares of the Capital Stock of the Chico Gas Company, sixtyseven (67) shares of the Capital Stock of the National Bank of Stockton, and two hundred (200) shares of the Capital Stock of the San Francisco Gas Light Company, and certain real estate situate in the Counties of Butte, Humboldt and San Diego in this State, which said real estate is particularly and fully described in four certain Deeds of Conveyance made this day by the party of the first part, to the party of the second part, reference to which said deeds and each and every thereof is hereby made for a full and perfect description of said real estate; and has executed to her his certain promissory note for the principal sum of $11,169.28 payable in one year from date and bearing interest at the rate of six per cent annum, interest payable monthly. "Now, therefore, in consideration of the premises, and of the said conveyances and of the mutual consent and agreement of the parties hereto, they have covenanted and agreed. and by these presents do covenant and agree to and with each other that they shall and will, at all times hereafter live separate and apart, free from the molestation or control, each of the other, and from all connubial association or relation. "And the party of the second part, for and in consideration of the premises, and particularly of the conveyances, transfers and assignments hereinbefore referred to, does hereby covenant and agree to and with the party of the first part, that she will not at any time hereafter compel or require the said party of the first part to cohabit or live with her, and that the said party of the first part shall be to all intents and purposes whatsoever, freed and discharged from the power, will and constraint of the party of the second part, and that she will not molest, hinder, interrupt, interfere with, or disturb him in his manner of living or in his liberty or freedom of going to, or staying in, or returning from such place or places as he shall think proper, and that saving and excepting her preservation of her rights in the community property of herself and the said party of the first part she will not claim nor demand nor have any ownership of, any property which the said party of the second part now has, or may hereafter acquire an interest therein, or any maintenance. or support from him, and that she will, from and after the date hereof, entirely support and maintain herself from and out of her separate estate, and that she will waive and renounce all right or claim to institute legal proceedings against the party of the first part, for a divorce or for a dissolution of the marriage tie between them. "And the party of the first part for and in consideration of the premises, does hereby covenant to and with the party of the second part and her heirs and assigns that all and every of the real estate, described in the conveyances hereinbefore referred to are free and clear of all encumbrance made or suffered by him, or by any person or persons claiming through or under him. "In witness whereof, the parties hereto have hereunto and to duplicate hereof, set their hands and seals, the day and year first above written. 66 (Seal) "(Seal) D. V. B. HENARIE. "Signed, sealed and delivered in the presence of "J. F. WENDELL. (Annexed to the above instrument are the separate acknowledgments of the parties, both taken before Notary Public Eugene W. Levy, on February 27, 1886.) Decedent continued his allowance of $50 a month to his wife from 1858 until 1871, and pursuing the same provident course she saved and invested her money. Between 1858 and 1867 she received by gift from her husband and savings $4,000, and in 1867 purchased property on Pine street. He paid her $40 a month rent for this property from 1867 until he built an addition to the house and paid her $6,000, which was then its value. In 1876 he deeded to her this property, and from that time on it is claimed by her counsel that it was her separate property as well as the personal property therein. From April, 1876, to August, 1878, they resided in the cottage on Taylor street and let the house fronting on Pine street, and from August, 1878, they lived in the Pine street house and let the cottage on Taylor street. At the time of separation, February, 1886, as is seen by the agreement herein above inserted, he made deeds of gift to her of the Pleasanton, Chico, Eureka, and San Diego properties, and gave her his note of hand for $11,169.28 payable as therein provided, and in consideration of the premises she agreed, among other things, that saving and excepting her preservation of her rights in the community property of herself and him, she would not claim nor demand nor have any ownership of any property which he had at that date or might thereafter acquire, or any interest therein, or any main |