IN RE: DUKE'S ESTATE.

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District Court of Appeal, Fourth District, California.

IN RE: DUKE'S ESTATE. LOGAN v. SHELBY et al.*

Civ. 4528.

Decided: December 16, 1952

Riley & Ferguson, John M. Riley, and David H. Thompson, San Diego, for appellant. Russell G. Taliaferro, Escondido, for respondents.

The deceased, Sallie Leftwich Duke, also known as Sallie L. Logan, left a will in which she included a provision intentionally omitting to provide for her former husband, and also ‘for * * * any person * * * who may after the date of this will become my heir * * * by reason of marriage. * * *’

Appellant filed a petition to revoke the will based upon the ground that he was the surviving husband. He alleges that the will was executed before their marriage; and that no provision was made for him by marriage contract or by the will, nor was ‘he mentioned in said will in such a way as to show an intention not to make provision’ for him. He relies on Probate Code, § 70, which 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.’

The case was brought before the court upon stipulated facts which the court included in its findings. It found that the appellant ‘was in such a way mentioned therein as to show an intention on the part of the testatrix not to make provision for him’, and that appellant ‘was identified in said will by reason of being within that designated classification which shows on its face that it necessarily was then the intention of the testatrix that said (appellant) * * * should take no part of her estate.’

The point raised by appellant on this appeal is that the stipulated facts do not show that at the time of making the will the testatrix knew appellant or ever contemplated marriage to him; that the will does not mention him by name or by contemplated relationship, or by a classification which shows on its face that it necessarily was then the intention of the testatrix to include therein a subsequently acquired husband. In support of this contention he cites such cases as In re Estate of Rozen-Goldenberg, 1 Cal.App.2d 631, 37 P.2d 132; In re Estate of Axcelrod, 23 Cal.2d 761, 147 P.2d 1; In re Estate of Kurtz, 190 Cal. 146, 210 P. 959; and In re Estate of Turney, 101 Cal.App.2d 720, 226 P.2d 80.

The stipulated facts, at the time of the trial, were:

‘That the decedent * * * was divorced from Carl L. Duke on April 29, 1949; that a final decree of divorce was obtained on May 1st, 1950; that the decedent and contestant herein, Harry G. Logan, were validly married on May 3rd, 1950, and that they lived together as husband and wife until the date of decedent's death; that the decedent died on November 21st, 1951, * * * and that at the time of the decedent's death she was then validly married to contestant Harry G. Logan; that the decedent executed a valid will on May 14th, 1949, and that such will has been duly admitted to probate * * * that all of the property passing under said will was the separate property of decedent.’

The will in question contains the following language:

‘Fourth: I have, except as otherwise specifically provided in this will, intentionally and with full knowledge, omitted to provide for my former husband, Carl L. Duke, and for any child or children, relatives or heirs who may be living at the time of my death, including any person or persons who may after the date of this will become my heir or heirs by reason of marriage or otherwise.’

‘Fifth: If any person who is or claims under or through, a devisee, legatee or beneficiary under this will, or any person who if I died intestate, would be entitled to share in my estate, shall, in any manner whatsoever, directly or indirectly, contest this will or attack, oppose or seek to impair or invalidate any provision thereof or conspire or cooperate with anyone attempting to do any of the acts or things aforesaid, then I do hereby bequeath to such person the sum of one dollar ($1.00) only.’

In Re Estate of Rozen-Goldenberg, supra, a widow made a will wherein she provided for her daughter and for her grand-children in case of the daughter's death, and stated that with full knowledge she had omitted to provide for her heirs living at the time of her demise. More than two years thereafter she met, for the first time, he man whom she afterward married. The court held such subsequent marriage operated to revoke the will as to the husband under Probate Code, § 70, in the absence of a marriage contract or a provision for the surviving spouse. The will was voided because the evidence showed that the testatrix first met the respondent more than two years after making the will and they were not married until six months later.

In Re Estate of Kurtz, supra, relied upon by respondent, the testator was engaged to marry the contestant at the time the will was made. The court held that this evidence was admissible to show who the testator intended to include in the phrase classifying those who would take or not take under the will, and said that accordingly the will was not revoked by reason of the subsequent marriage. The court, in the Rozen-Goldenberg case, differentiated the facts stated in Re Estate of Kurtz, supra, and remarked that the Kurtz case was not authority in that case ‘for the reason that a person, unknown to testatrix at the time of the execution of the will and subsequently married to her, could not have been included among those whom testatrix intended to refer to in her will.’ [1 Cal.App.2d 631, 37 P.2d 133.]

Respondents moved this court, in support of the judgment, to take additional evidence on that subject. In support of the motion they presented an affidavit showing that in truth and in fact Sallie Leftwich Duke had been well acquainted with contestant for more than nine years before their marriage and that these parties discussed, as early as July, 1949, their contemplated marriage which was to take place as soon as the final decree was obtained, in the presence of two witnesses who would be willing to testify to such fact. No counter-affidavits were filed. This court granted the motion and ordered that evidence be taken on that subject unless the parties agreed to submit the matter on affidavits. On December 11, 1952, the parties stipulated that the court may consider the affidavits therewith filed which, in substance, are similar to the one filed in support of the motion. No counter-affidavits were filed. It was further stipulated that upon filing the affidavits the court may consider the cause submitted for decision. This court finds that the allegations of the affidavits are true. The findings are amended accordingly.

It now clearly appears that the testatrix, at the time she made the will, did intend to disinherit her ‘former husband’, Mr. Duke, and did intentionally omit to provide by will for contestant or any person who might, after the date of the will, become her heir by reason of a subsequent marriage.

The findings and conclusions are now amply supported by the evidence.

Order affirmed.

GRIFFIN, Justice.

BARNARD, P. J., and MUSSELL, J., concur.