278 P. 473 | Cal. Ct. App. | 1929
This is an appeal from an order admitting to probate the last will and testament, together with the codicil thereto, of Charles Rudolph Appenfelder, deceased. The decedent executed his will on August 24, 1924, and on March 2, 1926, made the codicil. By these instruments he bequeathed $2,000 to his former wife (divorced at the time the will was published) and devised to her a life estate in certain real property situate in Glendale, California. Of the remainder over, 1/8 was given to the appellant, Katherine Louise Appenfelder, described in the will as "my niece" but who at the time was in fact the wife of a nephew of the deceased. The balance of the remainder over was distributed among Emma C., Hugo William and Fred Appenfelder. A like disposition was made of all the rest, residue and remainder of the estate, i.e., 1/8 to the appellant, 17/40 to Emma C. Appenfelder and 9/40 each to Hugo William, and Fred Appenfelder. On December 8, 1927, the deceased and appellant were married, she having been divorced from her former husband in the meantime. On March 19, 1928, Charles Rudolph Appenfelder died at Cheyenne, Wyoming, being at the time a resident of Los Angeles County, California. The appellant filed a contest to the probate of the will on the ground that although married to decedent subsequent to the execution of the will no provision was made for her by marriage contract; no provision was made for her in the will; no intention was therein disclosed not to make provision for her and hence under the provisions of section 1299 of the Civil Code the will was revoked. The section referred to reads as follows: "If, after making a will, the testator marries, and the wife survives the testator, the will is revoked, unless provision has been made for her by marriage contract, or unless she is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation must be received." In addition to her assertion that the will was revoked by the provisions we have just quoted the appellant complains that the court erred when it permitted counsel for respondents on cross-examination to elicit from her lips the information that she was the wife of a nephew of the deceased until after the will and codicil were executed and *332 that she knew of no other person named Katherine Louise Appenfelder.
[1] Turning to the first contention of appellant we quote two significant sentences from her brief which illustrate the underlying thought of her argument. She says: "Throughout all the cases it appears that there must be evidence that the testator would have the event, that is, his marriage `in contemplation'" and "It appears to us to be the declared law of California that in order to overcome the presumption of revocation by marriage it must appear that the party named was provided for `as a wife' or as an `intended wife,' and that there must be language in the will indicating an intention upon the part of testator to make such a provision." The crux of the matter may then be said to be whether the quoted section of the code requires the will to provide for the individual or to provide for the person in the capacity of an intended spouse. In other words, must the will disclose that it was executed in contemplation of marriage or is the section satisfied if the person is actually provided for? We must confess that the question is most interesting and from a strictly academic basis would warrant a resume of the authorities from the early English cases down to the present time. However, we are not here dealing with the doctrine of implied revocation inherited and reluctantly adopted by the common law from the ecclesiastical courts, but we are confronted with a statutory enactment relating to the revocation of wills under specified circumstances. Or as was said in Estate ofMeyer,
"In thus disposing of this case, we can give effect to another most salutary rule. While we have said that in our judgment the grounds upon which wills are or may be revoked are statutory, it is also the rule that revocation of wills by implication of law are not favored. The reason for overturning a will must supplant every other consideration. Where wills have been held to be so revoked by implication, *335 it was because of some reason so controlling that the presumption followed that the testator himself upon the happening of the event would not have published the document as his will. There is nothing in the will before us, and nothing is suggested in the statute, that would warrant the indulgence of this presumption on our part. . . . Our conclusion then is that the words, `or unless she be provided for in the will,' being in the disjunctive and in no way qualified by the usual term `in contemplation of marriage,' refer to a condition existing at the time of death, and not necessarily to an intended wife. A person being provided for may, by intermarriage with the testator, bring herself within the operation of the statute. If she be provided for in the will, as she is in the case at bar, she comes within our statute, as under the rules to which we have referred she would have fallen without it. Alfred Adler having made his will, and afterwards married, his wife surviving him, at least one of three things must appear: He must have made a marriage settlement, or she must be provided for in the will, or so mentioned as to indicate his intention not to make such provision. The statute must be construed to read as follows: If after making any will the testator shall marry and the wife shall be living at the time of the death of the testator, such will shall be deemed revoked . . . unless she be provided for in the will. . . .' Hannah Adler is provided for in the will, and is concluded by its terms."
Had it been the intention of the legislature to say that the provision of the will should indicate that the testator had in contemplation the event of marriage it would have been a very simple process for it to have inserted a phrase to that effect after the clause "or unless she is provided for in the will." For example it might have added immediately after the word "will" the following "in such a manner as to indicate that the testator had in contemplation the event of marriage." We read the Estate ofKrutz,
[2] We now turn to the second argument of appellant, to the effect that the court erred in admitting testimony concerning the identity of the appellant. She argues that section 1299 is not concerned with the interpretation or construction of wills and further that it provides that "no other evidence (other than the will) to rebut the presumption of revocation must be received." We do not understand that the testimony was received either for the purpose of construing the will or of rebutting the presumption of revocation. It related solely to the identity of the appellant whose name was identical with that in the will, and whose name was actually in the will. It was held in Estate ofKurtz, supra, that evidence of an engagement at the time the will was executed was admissible for the purpose of showing "who the maker of the will intended to include by the phrase `any person whomsoever who if I died intestate, would be entitled to any part of my estate' a phrase which, if he had not been then engaged to marry the contestant would be somewhat ambiguous, but which would be made certain by showing the fact of such engagement." So here the identity was established by showing that appellant was in fact the wife of a nephew at the time the will was published.
Order affirmed.
Works, P.J., and Craig, J., concurred. *337