Smith v. City of Hope

City of Hope, sole beneficiary in decedent’s will, appeals from a judgment 1 distributing decedent’s entire estate under Probate Code section 70 to the surviving wife, respondent herein.

Decedent disinherited his only living child in his will. The sole issue raised in this appeal is whether the surviving wife’s entitlement to the estate is to be determined in accordance with Probate Code section 221 or section 224.

*210 Probate Code section 221 provides for distribution under the rules of succession to a surviving spouse and issue and section 224 provides for distribution to a surviving spouse as sole survivor.

The code section to be used depends upon the construction to be given the disinheritance of decedent’s only living issue, his son.

Facts

Decedent Kenneth Lee Smith executed his last will on June 25, 1982; he later married Mildred M. Smith on May 2, 1983. He died June 15, 1983, leaving surviving him his wife Mildred, respondent herein, and a son, Michael Ray Smith.

All of decedent’s estate is separate property and his will was admitted to probate on November 18, 1983. Provisions of his will important to the issue raised are:

Discussion

Probate Code section…