decided is whether under the terms of the will the widow, Mollie C. H. Moore, was entitled to take the one-half of the community property which devolved upon her by law and in addition thereto her interest in the other moiety thereof as given to her by the will, or whether she was put to an election between the provisions of the will and of the law in respect to such property. The lower court held that the widow was not required to elect, and distributed to her not only the undivided one-half which devolved upon her under the statute but also the interest in the other moiety which the will gave to her.

James C. Moore died July 8, 1919, leaving an estate consisting of eight parcels of land in the city of Pasadena and the Ceres Avenue property in the city of Los Angeles. He was a resident of the county of Los Angeles continuously from 1903 to the time of his death. By his last will, executed May 18, 1919, he devised the Ceres Avenue property to his sister, the appellant here, and all the rest and remainder of his property to his wife and his six children. The only provisions of the will which we need notice in our present inquiry are the following:

"II. I give, devise and bequeath to my beloved sister Mary J. S. Moore, of Los Angeles, California, all of lot No. five (No. 5) of E. M. Funk Subdivision of Valenzuela Tract in Los Angeles, California, with the improvements thereon, and known as the 714 Ceres Ave. property, and originally purchased by me out of a considerable sum of money coming out of my now deceased mother's property, and purchased as a home for her and to which she never received a properly recorded deed.

"III. All the rest and residue, and any remainder of my estate, both real and personal, wherever situated and of which I die seized or possessed, or to which I may be entitled at the time of my decease, I give, devise and bequeath as follows: One-half (2) thereof to my beloved wife Mollie C. H. Moore, and the remaining one-half (2) thereof I give, devise and bequeath to my beloved sons and daughters, Hester Elizabeth Armstrong, Zephyr A. Moore, Pleasant Ruth Moore, Jas. C. Moore, Jr., Paul J. Moore, and Miriam H. Moore, to be divided and shared among them according to their merits, needs and several abilities to rightly use the same."

Decedent and the respondent, Mollie C. H. Moore, were married at Knoxville, Tennessee, in 1890, where decedent's mother, Elizabeth Moore, owned a home. The newly married couple lived for a while with decedent's mother, until James bought a home of his own in Knoxville. On August 4, 1903, and before moving to Los Angeles, decedent purchased the Ceres Avenue property for the sum of $3,000. The purchase price was paid in installments. The final payment, amounting to $957.89. was not made until some time in 1913. Before the property was fully paid for, namely, on March 4, 1907, James C. Moore received from his vendors a deed to the Ceres Avenue property. His mother and sister came to Los Angeles in 1902, and shortly after the purchase of the Ceres Avenue property in 1903 they made that their home until the mother's death in 1909. Thereafter it was occupied by the sister. James and his wife, after coming to California, resided in Pasadena. The Ceres Avenue property seems to have been purchased in part from the proceeds of the sale or mortgage of the mother's property in Knoxville, in part from the proceeds of the sale or mortgage of the son's Knoxville property, and in part from the latter's earnings acquired subsequent to the time when he and his wife moved to Los Angeles County and took up their domicile in this state.

It would seem that James C. Moore intended that the Ceres Avenue property should be purchased for and regarded as the property of his mother, to be occupied by her and his sister as their home. Indeed, by a written assignment dated March 22, 1904, he transferred to his mother his contract to purchase this property. His wife joined him in making this assignment to the mother. It recites a consideration of "one dollar, with divers other considerations." Later the son deeded the property to his mother by a deed dated April 5, 1907. His wife did not join with him in the execution of this deed, nor was that instrument ever recorded. Notwithstanding the assignment to the mother of the contract of purchase and the son's execution of the unrecorded deed to his mother, the Ceres Avenue property has been treated by the parties to this litigation as a part of the son's estate. It was inventoried as a part of his estate; it is described as a part of his estate in respondent's petition for distribution; and appellant, in her written objec

tion to the petition for distribution and also in a certain written stipulation entered into by her in the course of the trial, treats the property as a part of her brother's estate. Therefore the assignment of the contract and the deed to the mother, if they may be considered in the present proceeding for any purpose whatever, are relevant only in so far as they may have a tendency to show that James C. Moore considered that such interest as he had in the Ceres Avenue lot was his own separate property and not the property of the community. Indeed, by a previous will, executed May 26, 1911, which was after his mother's death, Mr. Moore devised the Ceres Avenue property to his sister by a clause which reads as follows: "I will my non-community property -one house and lot at what is now 714 Ceres avenue-to my sister Mary J. S. Moore." (Italics ours.) The only reason for adverting to these facts is that they are circumstances tending to explain why it was that the testator used the language which he employed when devising the Ceres Avenue property to his sister by his last will. They shed some light upon the question whether it was his intention to devise to his sister all the estate in the lot or only a moiety thereof; and under the doctrine of election the testator's intention is the crux of the problem, in so far at least as the case must turn upon the interpretation to be placed upon the testator's will.

Having found that all of the estate or James C. Moore, including the Ceres Avenue property, was community property, and having concluded that the widow was not put to her election, the trial court distributed the estate as follows: To the sister, the appellant here, an undivided onehalf of the Ceres Avenue property; to the widow, as her part of the community property passing to her by operation of law, an undivided one-half of all of the property belonging to decedent's estate, including an undivided one-half of the Ceres Avenue property; to the widow, under the will and in addition to the undivided one-half coming to her by operation of law, an undivided one-fourth of all of the property other than the Ceres Avenue property; and to the six children, in equal shares, the remaining undivided onefourth of all the property other than the Ceres Avenue property, the same to be held in trust for them by their

mother under a trust clause of the will which we have not deemed it necessary to set forth.

It will be noticed that the widow received under the will, in addition to her statutory community interest in the Pasadena lots, one-half of the remaining undivided half of those lots. That is, by taking under the will she was entitled to receive, and there was in fact distributed to her, an undivided three-fourths of those properties. These parcels of land in Pasadena formed a very considerable bulk of the deceased husbands's estate; and from the fact that the widow entered into a certain stipulation referred to in the latter part of this opinion it would seem that she deemed an undivided three-fourths interest in the Pasadena lots to have a greater value than would be possessed by her mere statutory community undivided half interest in all the property of the estate.

As we have stated, appellant appeals from that part of the decree of distribution which distributes to her but an undivided one-half of, instead of all of the estate in, the Ceres Avenue property. Her principal points on this appeal are: (1) That the evidence does not support the finding that the Ceres Avenue property was community property; and (2) that if that property did belong to the community the widow was put to her election; that the latter elected to take under the will, and that therefore she may not now assert her statutory right to an undivided onehalf of the Ceres Avenue property, but that all of the estate therein should have been distributed to appellant under the will. We do not find it necessary to consider the first point, i e., whether the evidence supports the finding that the Ceres Avenue lot was community property, for we think that if that parcel of land was, as found by the lower court, the common property of the spouses, the will of James C. Moore, in so far as it makes a devise of the Ceres Avenue property to his sister, was one whose terms forced an election upon the widow and that the latter has made her election to take under the will.

[1] The doctrine of election rests upon the equitable ground that no man can be permitted to claim inconsistent rights with regard to the same subject, and that anyone who asserts an interest under an instrument is bound to give full effect, so far as he can, to that instrument. Or, as it

is sometimes expressed, he who accepts a benefit under a deed or will must adopt the contents of the whole instrument, conforming to all of its provisions and renouncing every right inconsistent with it. In testamentary law, election, says the court in Morrison v. Bowman, 29 Cal. 347, 348, citing Story's Equity Jurisprudence, "is the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims in cases when there is a clear intention of the person from whom he derives one that he should not enjoy both . . . ; a person cannot accept the benefit intended for him and at the same time reject the will by asserting, in opposition to it, his own inconsistent proprietary rights." A widow is put to her election where she would receive, if she took under the will, something which she would not otherwise be entitled to as community owner. (Smith v. Butler, 85 Tex. 126 [19 S. W. 1083]; Zinn v. Farmer (Tex. Civ. App.), 243 S. W. 523-526.) That was the case here; for, by electing to take under the will, the widow received an undivided threefourths of the Pasadena properties instead of only an undivided one-half thereof.

Before looking to the particular language of the will let us notice some of the rules of law applicable to the construction of such instruments when the question of election is involved, always remembering that the intention of the testator is to be kept in view as the pole star in the construction or interpretation of his will. In the absence of a manifest intention on the testator's part it will not be presumed that he designed to devise or bequeath any property over which he did not possess the power of testamentary disposition. (Morrison v. Bowman, supra.) Of two possible constructions, that which favors the conclusion that the testator was disposing only of his own moiety of the common property will be adopted. This, says the court in In re Smith, 108 Cal. 115, 119 [40 Pac. 1037], is the scope of the doctrine in Silvey's Estate, 42 Cal. 210; In re Gwin, 77 Cal. 313 [19 Pac. 527], and In re Gilmore, 81 Cal. 240 [22 Pac. 655]. [2] But though an intention on the part of the husband to dispose by his will of his wife's share of the community property will not be readily inferred, and will never be inferred where the words of the gift may have their fair and natural import by applying them only to the