24 P.2d 865 | Cal. Ct. App. | 1933
This is an appeal by Maurice Derruau, one of the heirs of Elie Derruau, deceased, from the decree of final distribution herein.
In 1929, Elie Derruau made his will and thereafter in 1930 married Marie Couralet, who survived him upon his death in 1932. Prior to 1931 and at the time of the testator's marriage, section 1299 of the Civil Code provided: "If, after making a will, the testator marries, and the wife survives the testator, the will is revoked, unless . . ." In 1931 said section was repealed. At that time a new section designated as section
[1] Relying on the provisions of the original section (sec. 1299, Civ. Code) in force at the time of the testator's marriage, appellant contends that the revocation was total, but in our opinion this contention cannot be sustained. Appellant cites and relies upon Estate of Berger,
The situation here is quite different. The section in force at the time of the testator's marriage (sec. 1299, Civ. Code) did not provide that revocation of the testator's will was produced by marriage alone, but such revocation was also dependent upon the survival of his wife. In other words, there could be no revocation under the terms of said section until the testator's death. As there was no revocation of the testator's will solely by reason of his marriage while said section was in force and as that section had been repealed prior to his death, it cannot be relied upon as effecting total revocation of the testator's will as claimed by appellant. The distinction between the facts inEstate of Berger, supra, and those in the present case is suggested on page 111 of the opinion therein. Appellant criticises the language there used by the court as it indicates that the new section (sec.
Respondent makes the contention that appellant should have raised his point on an appeal from the order admitting the will to probate and cannot raise it upon an appeal from the decree of final distribution, but in view of the conclusion we have reached it is unnecessary to discuss this question.
The decree is affirmed.
Nourse, P.J., and Dooling, J., pro tem., concurred.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on October 19, 1933.