Estate of Meyer

This is an appeal from an order refusing probate to the last will of Benno Meyer, deceased, which was executed on the fifth day of March, 1917. Three-fourths of the entire estate of the decedent is, by the will, bequeathed and devised to the mother and brothers of the deceased. The remaining one-fourth is disposed of as follows:

Three days after the will was made the deceased married said Camille Lasky, and, subsequently, a child, Marjorie Catherine Meyer, was born. Both wife and child survive the deceased, who died on, or about, the sixteenth day of January, 1919. The child, Marjorie, is not mentioned in the will, nor provided for by any settlement. When the testament was offered for probate, the surviving wife filed her opposition thereto, claiming the will to have been revoked by the birth of the child to the marriage. This contention was upheld by the lower court.

[i:i The sole question presented for determination in the lower court and on this appeal has to do with the construction to be placed on section 1298 of the Civil Code and its application to the facts at bar. That section reads as follows: “If, after having made a will, the testator marries, and has issue of such…