IN RE: AXCELROD'S ESTATE.

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District Court of Appeal, Second District, Division 2, California.

IN RE: AXCELROD'S ESTATE. WILENCE v. AXCELROD'S ESTATE.

Civ. 14137.

Decided: June 29, 1943

Ralph Bernstein, of Huntington Park, for appellant. Louise Mason, of Los Angeles, for respondents. A. Joseph Shapiro and Irving Friedman, both of Los Angeles, for Etta Pocker, contestant and respondent.

From an order establishing heirship, petitioner appeals. The appeal is on the judgment roll alone.

The essential facts are:

Diane Wilence executed a will December 9, 1935, which contained, among others, the following provisions:

“Sixth. I have intentionally omitted all of my heirs who are not specifically mentioned herein, intending thereby to disinherit them, and if any such persons, or heirs, or any devisees or legatees under this Will, or their successors in interest, shall either directly or indirectly seek to establish or assert any claims to my estate or any part thereof, excepting under this Will, or attack, oppose or seek to set aside the probate of this Will, or to impair, invalidate or set aside its provisions, or any of them, or to have the same or any part thereof, or any legacy herein contained eliminated, declared void or diminished, or to defeat or change any part of the testamentary plan of this Will, directly or indirectly, either in Court or out of Court, or shall endeavor to secure or take any part of my estate in any manner other than through or under this Will, then in any or all of the above mentioned cases and events, I hereby give and bequeath to such person or persons the sum of One ($1.00) Dollar and no more, in lieu of any other share or interest in my said estate * * *.”

On April 17, 1936, the testatrix married Ben Wilence, petitioner herein. Diane Wilence died November 3, 1941. Thereafter her will was duly admitted to probate, and after the time for presenting claims had elapsed petitioner filed a Petition to Determine Heirship in which he alleged that respondents were the heirs named by decedent in her will executed December 9, 1935; that said will was revoked by his marriage to decedent after the will had been executed, and that as a result he was entitled to one–half of decedent's estate. The petition then prayed that the probate court determine who were entitled to the estate of the decedent.

The court made findings against petitioner's claim and found that the persons named in the will of the testatrix were the heirs of decedent and that as a result petitioner was not entitled to one–half of decedent's estate.

Respondents did not file any pleading in response to the petition.

It is necessary for us to determine two questions which will be stated and answered hereunder seriatim.

First: Was an issue created in the trial court in view of the fact that respondents did not file any pleading in response to petitioner's Petition to Determine Heirship?

This question must be answered in the affirmative. Allegations in a petition to determine heirship are deemed to be denied. (Section 1080 of the Probate Code.) Under the foregoing rule it is evident that, since the allegations of the Petition to Determine Heirship filed by petitioner were deemed denied, issues of fact were created for the determination of the trial court.

Second: Was there substantial evidence to sustain the trial court's findings of fact?

This question must likewise be answered in the affirmative. The law is established in California that where the appeal is on the judgment roll alone the findings of fact will be conclusively presumed to be supported by the evidence. (Estate of Mautner, 38 Cal.App.2d 521, 522, 101 P.2d 520; Estate of Woods, 23 Cal.App.2d 187, 191, 72 P.2d 258.)

Therefore applying the foregoing rule to the facts of the instant case, since the appeal is on the judgment roll alone, the findings of fact are conclusively presumed to be supported by evidence, and as no error appears on the face of the judgment roll the order must be affirmed.

The order appealed from is affirmed.

I dissent. In his brief appellant makes the positive statement that no evidence was offered or received at the hearing in the trial court. Respondents do not deny this statement but impliedly admit that no evidence was presented. There was no issue of fact to be decided and there was no occasion for the making of findings by the trial court. Waller v. Weston, 125 Cal. 201, 57 P. 892. Although the document which the court filed under the heading, Findings of Fact, contains the direct statement that appellant was married to the executrix subsequent to the execution of the will, it also contains statements which under the circumstances are erroneous conclusions of law, especially the statement that appellant “was one of the class of persons included within the meaning of the word ‘heirs' as used in Section Six of said will”.

The intent of the testatrix must be determined as of the date of the execution of the will. Estate of Carter, 49 Cal.App.2d 251, 254, 121 P.2d 540. On that date appellant was not the husband of the testatrix and did not become her husband until more than four months later. Section 70 of the Probate Code provides: “If a person marries after making a will, and the spouse survives the maker, the will is revoked as to the spouse, unless provision has been made for the spouse by marriage contract, or unless the spouse 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 can be received.” In my opinion the testatrix by inserting the sixth provision in her will was merely adopting the means in common use of preventing a contest of the will or of its provisions. She was not providing for her future husband in the will or mentioning him in such way as to show an intention not to make such a provision. See Estate of Rozen–Goldberg, 1 Cal.App.2d 631, 37 P.2d 132. No claim is made that there was a marriage contract. In my opinion the will was revoked as to appellant by the marriage of the executrix to him after the making of the will.

McCOMB, Justice.

MOORE, P. J., concurs.