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IN RE: CRANE'S ESTATE.* CRANE v. CRANE.
This is an appeal from an order in probate for the final distribution of the estate of the above-named decedent. By the terms of the decedent's will, the appellant, who is the surviving widow of the decedent, was bequeathed the sum of “one thousand dollars in money, or value from residue interests, for every year or major fraction thereof of our married life.” The trial court decreed that the widow was not entitled to take the bequest, for the reason that she had entered into the property settlement agreement hereafter referred to, and it is from this ruling the appeal is taken.
The parties were married on October 21, 1925. The will was made on November 4, 1926. The parties separated January 21, 1927, and they entered into the property settlement agreement February 21, 1927. They resumed marital relationship on January 1, 1928, and again separated March 7, 1928. The date of decedent's death was June 26, 1929. The will was an holographic will.
The pertinent parts of the property settlement agreement are as follows: “It is further expressly covenanted and agreed that neither of the parties hereto will in any way or manner contest or oppose the probate of the other's will, whether heretofore or hereafter made, or interfere with the other, his or her heirs or assigns, in the exercise of the rights of property herein agreed to; that neither of them will at any time hereafter assert any right, interest or title as heirs at law of the other or as against the estate of the other, and all claim or right as surviving husband or wife, and all right to contest or oppose the last will of the other is hereby expressly waived, together with all right to administer, or to apply for letters of administration, or letters of administration with the will annexed, upon the estate of the other. * * * It is the true intent and purpose of this agreement that the parties hereto have settled and forever adjusted, and that they do hereby settle and forever adjust, by and between themselves, all present and future property rights of every kind and nature, whether community or separate, wheresoever the same is or may be located, and all other rights and claims which either may have or claim to have against the other, so far as their property rights are concerned, and in addition thereto that the said parties hereto have settled and adjusted, and do hereby settle and adjust, and forever determine, all of their respective rights to, of and in any inheritance the one from the other, respectively, or in or to the estate of either.”
The trial court made several findings to the general effect that the appellant did “waive, relinquish and quitclaim to decedent's estate any devise or bequest made or provided for her in any then existing will of the decedent.” The respondent does not contend that the agreement revokes the prior will, but contends that “such agreement finally settles and determines not only their existing, but also their future, marital rights * * * including their respective rights in and to the estate of the other upon death.”
At the outset, in construing the contract it should be borne in mind that the testator could have revoked the will forthwith or at any time before his death, and also that he could have made a new will in which the appellant would not have been included as one of the legatees, and that the testator needed no agreement from the appellant waiving her right to be a legatee under his will. A reading of the agreement makes clear that the parties were not contracting with regard to the appellant's right to be a legatee. She had no such right. Why should the parties needlessly bind themselves against voluntarily bequeathing property to the other or from accepting property voluntarily bequeathed by the other, if the other should wish to so bequeath his property? The decedent had nearly three years, after making the agreement, in which he could have changed his will, if he had so desired. For reasons sufficient to himself he did not make such change. A will is ambulatory in nature and becomes an effective act upon the death of the maker. The retention of a will in the possession of its maker is a continuing expression of his wish that in case of death his estate be distributed as therein set forth. When the decedent died, he held among his effects this written request that there be given to his wife the bequest as above set forth.
The agreement upon which respondent relies is an ordinary property settlement agreement, and the only reference to a will is as follows: “* * * Neither of the parties hereto will in any way or manner contest or oppose the probate of the other's will, whether heretofore or hereafter made,” and “all right to contest or oppose the last will of the other.” Not one word is said in the agreement about appellant's rights as a legatee.
It is true that the appellant waives all her rights arising out of the marital relation, and it is true also that she waives her rights as an heir, but rights as a legatee are not in any sense included in such rights, and it is only as legatee that she appears herein. Appellant did not waive her right to be a legatee if decedent should desire to include her among those to share his bounty. Neither did decedent foreclose himself from leaving her a small bequest in the will. Estate of Maddux, 138 Cal. App. 430, 32 P.(2d) 392.
There is no merit in respondent's contention that the agreement constituted an ademption of the legacy in appellant's favor under the decedent's then existing will. The rule of ademption has no relevancy to the facts before us.
The words “our married life” are construed to mean the period from the marriage of the parties until the death of decedent.
The order is reversed, and the cause remanded, with directions to amend the decree of distribution by including an order of distribution to the appellant of the bequest made to her in the will.
CRAIL, Justice.
We concur: STEPHENS, P. J.; FRICKE, Justice pro tem.
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Docket No: Civ. 10380.
Decided: June 29, 1935
Court: District Court of Appeal, Second District, Division 2, California.
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