Bennett

Plaintiff commenced this action against defendant Georgina E. Forrest individually and as executrix of the last will of Francis G. Forrest, her deceased husband, to impress a trust on properties received from his estate by defendant, as legatee.

In 1937, defendant commenced an action against her husband for separate maintenance. Finally, after various proceedings were taken in that action, and on February 28, 1938, the parties entered into a property settlement agreement adjusting all of their property rights. The complaint in the separate maintenance action was amended to state a cause of action for divorce. Defendant was granted an interlocutory decree of divorce in March, 1938. No final decree was ever entered. Defendant's husband died about 14 months after the interlocutory decree was granted.

The will of Mr. Forrest dated August 6, 1921, together with a codicil dated August 14, 1933, was admitted to probate, and defendant, being named therein as such, was appointed executrix. The will left all of decedent's property, with the exception of one legacy, to defendant. Plaintiff is a sister, and an heir at law of deceased, and she seeks by this action to have it…

Plaintiff commenced this action against defendant Georgina E. Forrest individually and as executrix of the last will of Francis G. Forrest, her deceased husband, to impress a trust on properties received from his estate by defendant, as legatee.

In 1937, defendant commenced an action against her husband for separate maintenance. Finally, after various proceedings were taken in that action, and on February 28, 1938, the parties entered into a property settlement agreement adjusting all of their property rights. The complaint in the separate maintenance action was amended to state a cause of action for divorce. Defendant was granted an interlocutory decree of divorce in March, 1938. No final decree was ever *488 entered. Defendant’s husband died about 14 months after the interlocutory decree was granted.

The will of Hr. Forrest dated August 6, 1921, together with a codicil dated August 14, 1933, was admitted to probate, and defendant, being named therein as such, was appointed executrix. The will left all of decedent’s property, with the exception of one legacy, to defendant. Plaintiff is a sister, and an heir at law of deceased, and she seeks by this action to have it determined…

I concur in the judgment but for reasons other than in the majority opinion.

The majority opinion rejects plaintiff’s contention that decedent revoked the legacy to his widow by executing the property settlement agreement, on the ground that the decree of distribution operates as a bar to this cause of action, that “ancillary to and incident of the probate court’s jurisdiction it had power to determine, as it did, the effect of the agreement on the will and to whom the property of the estate was to be distributed.” In concluding that the probate court decided the issue concerning the revocation of the legacy as an incident of the distribution of the estate, the majority opinion relies upon the finding in the distribution decree that the *496 spouses had effected a reconciliation and that their agreement was not in effect at the time of decedent’s death. It is my opinion that this finding has no bearing on the issue of revocation. If decedent revoked the legacy by executing the agreement, the subsequent suspension of the agreement by reconciliation would not revive the legacy. (In re Lones, 108 Cal. 688 [ 41 P. 771 ]; see, Ferrier, Revival of a Revoked Will, 28 Cal.L.Rev. 265,…