Estate of Axcelrod v. Pocker

This is an appeal, upon the judgment roll alone, by a surviving husband from an “Order Establishing Heirship” and denying to appellant the one-half interest in the estate of his deceased wife to which he claims that the provisions of section 70 of the Probate Code entitle him. His chief attack on the order is made upon the ground that the trial court erred in its construction of certain provisions contained in the last will and testament of the deceased wife and in its application of the above mentioned section of the Probate Code to the admitted facts. It appears to us that such attack is meritorious and that the order must be reversed.

Appellant’s verified petition for determination of heirship, filed in the court below, alleges, so far as material to the issues presented on this appeal, that decedent, Diane Axcelrod, also known as Diane Wilence, died testate on November 3, 1941; that “Petitioner [appellant] is the surviving spouse of the decedent, and is one of her heirs by virtue of a marriage entered into with decedent on the 17th day of April, 1936, . . . after the execution of decedent’s will on December 9, 1935, in which Petitioner is not named or provided for therein,…

I concur in the judgment of reversal and in the views expressed in the majority opinion with the exception of what is said therein with respect to the Estate of Kurtz, 190 Cal. 146 [ 210 P. 959 ]. In my opinion the Estate of Kurtz was erroneously decided, and should be expressly overruled. I do not believe that it can fairly be said that the will which was interpreted in that ease made provision for the surviving spouse or unborn child of the testator, ‘ ‘ or in such way mentioned [them] therein as to show an intention not to make such provision.” As I read section 70 of the Probate Code (formerly section 1299 of the Civ. Code) it appears to have been clearly the intention of the Legislature to make mandatory the revocation of a will made prior to marriage where the spouse survives the maker, "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 I do not believe that this provision can be *770 satisfied by the use of general language in a will such as “all of my heirs,” “any person whomsoever” and the like as indicating an…

This is an appeal, upon the judgment roll alone, by a surviving husband from an "Order Establishing Heirship" and denying to appellant the one-half interest in the estate of his deceased wife to which he claims that the provisions of section 70 of the Probate Code entitle him. His chief attack on the order is made upon the ground that the trial court erred in its construction of certain provisions contained in the last will and testament of the deceased wife and in its application of the above mentioned section of the Probate Code to the admitted facts. It appears to us that such attack is meritorious and that the order must be reversed.

Appellant's verified petition for determination of heirship, filed in the court below, alleges, so far as material to the issues presented on this appeal, that decedent, Diane Axcelrod, also known as Diane Wilence, died testate on November 3, 1941; that "Petitioner [appellant] is the surviving spouse of the decedent, and is one of her heirs by virtue of a marriage entered into with decedent on the 17th day of April, 1936, ... after the execution of decedent's will on December 9, 1935, in which Petitioner is not named or provided for…