Estate of Dixon

CRAIL, P. J.

This is an appeal from an order finding that the appellant had been mentioned in and had been provided for in a will.

The appellant is the child of a deceased child of said Henry M. Dixon, deceased. The only place that she was mentioned or provided for in the will is clause sixth thereof, which reads as follows: “If any devisee, legatee or beneficiary under this Will, or any person claiming under or through any devisee, legatee, or beneficiary, or

any other person who, if I died wholly or partially intestate, would he entitled to share in my estate,

shall, in any manner whatsoever, directly or indirectly, contest this Will or attack, oppose or in any manner seek to impair or invalidate any provision hereof, or shall, in any manner whatsoever, conspire or cooperate with any person or persons attempting to do any of the acts or things aforesaid, or shall settle or compromise, directly or indirectly, either in or out of court, with any such contestant, or shall acquiesce in or fail to oppose such proceedings,

or shall endeavor to succeed to any part of my estate otherwise than through this Will,

then in each of the above mentioned cases, I hereby bequeath to such person or persons the sum of One Dollar ($1.00) only, and all other bequests, devises and interests in this Will given to such person or persons shall be forfeited and shall be distributed

pro rata

among such of my devisees, legatees and beneficiaries as shall not in any manner have participated in, and as shall have opposed such acts or proceedings.”

[600]

Section 90 of the Probate Code, formerly section 1307 of the Civil Code, reads as follows: “When a testator omits to provide in his will for any of his children,

or for the issue of any deceased child,

whether born before or after the making of the will or before or after the death of the testator, and such child or issue are unprovided for by any settlement, and have not had an equal proportion of the testator’s property bestowed on them by way of advancement, unless it appears from the will that such omission was intentional, such child or such issue succeeds to the same share in the estate of the testator as if he had died intestate.”