Estate of Piatt

NOURSE, P. J.

The surviving husband of Mona Piatt filed his petition for a decree distributing to him certain real and personal property on the ground that it was community property of himself and the deceased. The surviving brothers and sisters of the deceased filed objections claiming under a prenuptial will. They are the appellants from a decree granting the petition.

The decedent executed her will on June 18, 1928, naming the appellants herein as beneficiaries. On July 12, 1930, the decedent and the petitioner herein intermarried. They lived together as husband and wife until the death of decedent on March 10, 1942. She made no changes in the will. The surviving husband, asserting that the will was revoked by the subsequent marriage, and that the entire estate was community property, sought a decree distributing it to him. In the appeal from the decree granting this petition appellants state these two issues—whether the will as a whole was revoked, and whether the property is separate or community. The solution of the first question (as modified by the existing conditions) rests on section 70 of the Probate Code which 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 provision; and no other evidence to rebut the presumption of revocation can be received.” Hence the issue here is really whether the will was revoked insofar only as it affects the interest of the petitioner in the estate.

The section, insofar as it relates to the rights of the surviving spouse, has been interpreted in

Estate of Derruau,

133 Cal.App. 769 [24 P.2d 865];

Estate of Rozen-Goldenberg,

1 Cal.App.2d 631 [37 P.2d 132];

Estate of Haselbud,

26 Cal.App.2d 375 [79 P.2d 443];

Estate of Russell,

43 Cal.App.2d 319 [110 P.2d 718]; and

Estate of Piatt,

57 Cal.App.2d 211 [134 P.2d 321]. In the Piatt case, the court, relying on the earlier citations, said (p. 212) : “The proper construction to be placed upon the quoted words is that the surviving spouse shall receive that part of the estate to which he or she would