Perry D. McBroom, Deceased, and Jackie S. McBroom - Page 7

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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            1994, this section was repealed, along with other sections of the                         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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