Estate of Cochran

PATROSSO, J. pro tem.

Appeal from a decree determining heirship whereby it was adjudged that respondents were pretermitted heirs and entitled to succeed to the entire estate.

The testator died June 17, 1951, leaving surviving as his sole heirs at law four daughters, who are the respondents here. By his will dated April 20, 1951, he bequeathed his entire estate to the appellants who are strangers in blood to him. The will, which made no specific mention of his children, among other things provides: “To anyone who may contest this will I give the sum of $1.00. ’ ’ Respondents filed a petition to determine heirship pursuant to Probate Code, section 1080, upon the hearing of which the order appealed from and previously mentioned was made.

Upon the hearing, appellants offered in evidence two letters, both written after the death of the testator, from the

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respondent Leota A. Larson to the appellant Leuschner in which it was stated that the children and their father were not on good terms and had not been for a number of years; that they (the children) expected to be disinherited and that the only daughter to whom he might leave anything was the respondent Irla McKinney. Respondents objected to the receipt in evidence of these letters but the same were admitted subject to a motion to strike. At the close of the hearing, respondents made such a motion and it was granted by the court.

As ground for reversal appellants advance two contentions : (1) that the court erred in striking the letters above mentioned, and (2) that the provision of the will bequeathing $1.00 to anyone contesting the same constitutes a sufficient indication of an intention on the part of the testator to exclude his children from participation in his estate within the mention of Probate Code, section 90. We shall consider these in the order of their statement.

Counsel for appellants frankly concede that the trial court’s action in excluding the Larson letters was proper in the light of the many decisions of the Supreme and appellate courts of this state which unite in holding that, under section 90 of the Probate Code, whether the failure of a testator to provide in his will for any of his children was intentional is to be determined solely from the will itself.