Estate of Piatt

WARD, J.

Appeal from an order admitting a will to probate and granting letters testamentary to respondent L. J. Norton, as executor of the will of Mona M. Skinner Piatt. Appellant and petitioner, J. H. Piatt, husband of the decedent, had filed objections to the granting of letters testamentary to Norton and had petitioned that letters of administration with the will annexed be granted to him.

The question involved is clear cut, and, so far as this record is concerned, purely one of law. It may be stated as follows: “In a case where a party makes a will and later marries and dies leaving a surviving spouse unprovided for is such will revoked by section 70 of the Probate Code insofar as it affects the rights of the surviving spouse to administer on the estate of the decedent?”

Mona M. Skinner, a single woman, executed a will in 1928 in which she named respondent Norton as executor. In 1930

[212]

she married appellant, and the couple lived as husband and wife until the latter’s death in 1942. The will is silent as to appellant, the surviving spouse. Accordingly he is entitled to share in his deceased wife’s estate. (Prob. Code, sec. 70.)

Appellant’s contention is that he is not only entitled to take the share of the estate to which he would be entitled had his wife died intestate, but that, since the will is by operation of law revoked as to him, he is, as a matter of priority, entitled to letters of administration with the will annexed (Prob. Code, secs. 409, 422); in others words, that he is entitled to administer the estate, with the consequent right to fees as such administrator.

Prior to the enactment of the Probate Code in 1931, the Civil Code, sections 1299 and 1300, provided for the complete revocation of the will of a spouse made before marriage where no provision by way of marriage contract had been made for the benefit of the surviving spouse, and he or she had not been provided for by such will or intentionally omitted therefrom.

(Estate of Derruau,

133 Cal.App. 769 [24 P.2d 865].) Probate Code section 70, based upon the above Civil Code sections, provides: “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.” The words “as to the spouse” were added upon the adoption of the Probate Code. It should be noted that section 70 does not merely say that the will “is revoked” as in the Civil Code, but that “the will is revoked as to the spouse.” 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 be entitled had the other died intestate.