Stewart
Stewart v. Van Noy
Opinion
lead Opinion
Tratnor, J.
This appeal is from a judgment determining interests in the estate of Walter II. Stewart, deceased. Appellants are the stepchildren of the decedent and the sole surviving beneficiaries under his will. Respondent is decedent ’s widow and the administratrix of his estate.
*297 The'facts are not in dispute. Decedent, his then wife Jennie M. Stewart, and his brother John E. Stewart owned real property in Selma, California, as tenants in common. On June 19, 1936, they entered into a written contract to will their respective one-third interests in the property to the survivors for life and to their respective children on the death of the last survivor.
The contract provided that on 1 ‘ this day each executed a will by which the survivors or survivor is given a life estate in the property held as tenants in common by the parties hereto; that each has read the will of the other and understands the same and approves such will, and each hereby agrees not to revoke or cancel his or her will, without the written consent of the other parties hereto. ’ ’
Pursuant to the contract decedent executed a will leaving his interest to his wife Jennie M. Stewart and his brother John E. Stewart for…
dissent Opinion
McComb, J.
I dissent. The issue for our determination is whether property devised by the will of the last survivor of a mutual will made pursuant to a written contract is included as part of decedent’s estate for the purpose of computing the surviving spouse’s share pursuant to section 70 of the Probate Code.
It is appellants’ position that decedent’s estate is limited by the consequences of his contract and that the surviving spouse’s rights operate only on the property not subject to the contract.
Section 70 of the Probate Code reads: “If a person marries after making a will, and the spouse survives the maker, the will is revoked as to the spouse, 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 provisión; *301 and no other evidence to rebut the presumption of revocation can be received. ’ ’
■ The policy underlying section 70 of the Probate Code is the social disfavor toward a testator’s failure to provide for a surviving spouse. The law presumes that the subsequent marriage has wrought such a change in his condition in life as should have…