Reset A A Font size: Print

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


Civ. 20253.

Decided: June 16, 1954

V. P. Lucas, Los Angeles, for appellant. Michael Q. Gaynes, Beverly Hills, Thomas W. Hughes, Los Angeles, for respondents.

Appeal by the widow from a judgment upholding the validity of a will made by the deceased husband, Joseph C. Poisl, in his lifetime whereby, prior to his marriage, he made testamentary provision for her. He had known her for thirty years. At the time of the marriage they were an elderly couple. No issue resulted from the union. All the estate was decedent's separate property.

The will, properly executed on December 10, 1950, contained the following provision: ‘To Emmy Blackburn, also known as Emma Blackburn, now residing at 113 Lanewood Avenue, Alhambra, California, my residential property located in The City of San Diego, California, including all personal property in and upon said premises.’

Based upon abundant undisputed evidence, the court found that on July 18, 1951, decedent married Emma Blackburn; that Emma Blackburn and Emma Poisl, the widow of decedent, are the same person: Joseph C. Poisl made provision for appellant in his last will and testament; they remained husband and wife until decedent's death, June 16, 1952. Such findings require an affirmance of the judgment.

Section 701 of the Probate Code provides that ‘If a person marries after making a will, and the spouse survives the maker, the will is revoked as to the spouse * * * unless the spouse is provided for in the will * * *.’ Appellant contends that the will was revoked because it did not devise to her as his wife. She argues that the reference to her merely as Emma Blackburn, a single person and not specifically as his wife is sufficient to justify a judgment revoking the will. Such is not the law.

The bequest to her of the San Diego property is a provision for her ‘in the will.’ Such provisions are encouraged in order to “secure a specific moral influence upon the testamentary act,—the moral influence of having before the mind a contingent event so momentous as marriage * * *, and so deserving of consideration in framing a testamentary scheme.” In re Estate of Duke, 41 Cal.2d 509, 513, 261 P.2d 235, 238. A reference in the will to appellant as his spouse is not essential to its validity. She was his choice of devisees to have his San Diego home and preferred to bequeath it rather than to make a gift inter vivos. She was provided for ‘in his will’ and that is sufficient compliance to validate the instrument. In Estate of Duke, supra, the surviving spouse married the testatrix one year after she had made her will. She made provision for her future husband by ‘intentionally and with full knowledge’ omitting to provide for ‘any person or persons who may, after the date of this will, become my heir or heirs by reason of marriage or otherwise.’ Construing the will in the light of section 70 of the Probate Code, the court held the testatrix clearly stated an intention not to provide for a class of persons including the new husband and that such provision validated the will.

In re Estate of Appenfelder, 99 Cal.App. 330, 278 P. 473, 476, the testator had by his will given part of his estate to his former wife, one eighth of the remainder to his ‘niece’ whom he married twenty months after the date of his last codicil. His surviving widow undertook to revoke his will on the ground that no provision had been made for her as his prospective wife. But the court concluded if after making any will, the testator shall marry and the wife shall be living at the time of the testator's death, such will shall be deemed revoked unless she has been provided for in the will. Provision for her under her maiden name will be sufficient to avoid the revocation of his will. If the legislature had intended to require the testator to say that he was contemplating marriage to one of his devisees, it would have been a ‘simple process for it to have inserted a phrase to that effect’. Similar facts and a same holding are found in Re Estate of Brannon, 111 Cal.App. 38, 295 P. 83. From such decisions no doubt is left that the will is valid if it has provided for the spouse as an individual even though no testamentary mention has been made of the prospective marriage.

Appellant has cited some authorities in support of her thesis that not having been named in the will as his future wife, the instrument is invalid. In re Estate of Axcelrod, 23 Cal.2d 761, 767, 147 P.2d 1; Corker v. Corker, 87 Cal. 643, 25 P. 922, and Sanders v. Simcich, 65 Cal. 50, 52, 2 P. 741. They are not pertinent. In Re Estate of Axcelrod, there was no mention of the wife except in a clause of disinheritance. Corker v. Corker involved a property settlement agreement. The action was brought by Mr. Corker's executor. The court observed on page 650 of 87 Cal., on page 924 of 25 P. that the instrument ‘partakes more of the nature of a deed of separation than of a marriage contract. It does not purport to make any ‘provision’ for the wife'. The case is not in point.

There was no error in receiving evidence of the identity of Emma Blackburn as Emma Poisl. In re Estate of Kurtz, 190 Cal. 146, 149, 210 P. 959; In re Estate of Duke, supra. In the Appenfelder decision, supra, the court said, 99 Cal.App. at page 336, 278 P. at page 476, ‘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.’

Judgment affirmed.


1.  The antecedents of section 70 are sections 1299 and 1300 of the Civil Code prior to the adoption of the Probate Code in 1931. The only substantial change of section 1299 is the substitution of the word ‘spouse’ for the word ‘wife’ and for ‘husband’ in section 1300.

MOORE, Presiding Justice.

McCOMB and FOX, JJ., concur.

Copied to clipboard