Diemoz

When Kathryn Marlow Hughes died on February 12, 1975, she and her husband, George Ervin Hughes, had been living in her separate property residence at 3438 Browning Street in San Diego. The house was worth about $45,000. Upon her death George, as a spouse omitted *1610 from Kathryn’s November 15, 1965, will admitted to probate, acquired a one-third interest in the property pursuant to then Probate Code section 70. 1 The named beneficiaries under the will, Kathryn’s two children, Victoria Wiseman and Charles Marlow, received the balance in equal shares. George, and later when he remarried, with his wife Sylvia, continued to live in the residence. Although they paid the monthly installments on the note secured on the property, they paid no additional rent. When George died on November 26, 1986, Sylvia remained in the house until July 31, 1988, living there rent-free until July 22, 1987, when the court ordered her to pay a monthly rental of $350.

This appeal by Ben G. Patton as the administrator with the will annexed of Kathryn’s estate, asks us to decide whether the probate court correctly determined that Danice Diemoz, the former special administratrix of that estate, had…