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domiciled in California, unless it is the separate property of
the husband or the wife.2
Neither party in this case presented information to indicate
that any of the property of Mr. McBroom was his separate
property, rather than community property, or that Mr. McBroom has
heirs at law whose interests may be affected by our decision in
this case. Under State law, all of Mr. McBroom's property passed
upon his death to petitioner as his surviving spouse.
Consequently, we are not presented with the problem faced in
Nordstrom v. Commissioner, supra. Based on the foregoing, and
because there is no one willing or able to prosecute this case on
behalf of Mr. McBroom, we grant respondent's motion to dismiss
for lack of prosecution as supplemented.
Summary Judgment
In the Motion for Summary Judgment, respondent contends that
all of the facts necessary for our decision are set forth in
respondent's first request for admissions, filed July 5, 1994.
Respondent notes that petitioner did not respond to respondent's
first request for admissions, and, thus, pursuant to Rule 90(c),
each matter set forth therein was automatically deemed admitted
30 days after service of the request. Morrison v. Commissioner,
2 Cal. Prob. Code sec. 5110 (West 1991). On Jan. 1,
1994, this section was repealed, along with other sections of the
Civil Code and sections of the Code of Civil Procedure, Evidence
Code, and Probate Code. The repealed provisions were then
incorporated into the new California Family Code. See Cal. Fam.
Code sec. 760 (West 1994).
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