Estate of Russell

DESMOND, J.,

pro

tem.

In the case before us, the probate court made an order admitting the will of the deceased to probate, but revoking it as to his surviving spouse, respondent herein.

Section 70 of the Probate Code reads as follows: ’“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 record indicates that decedent’s will was executed on May 1, 1934; that he married Mrs. Russell on October 7, 1937; that he died on January 5, 1940. The will was offered for probate by appellant, George M. Sears, who asked that letters testamentary be issued to him, as executor named in the will. The court, however, at the time the will was admitted made its further order denying appellant’s petition for letters and ordering letters of administration with the will annexed to issue to Leslie B. Hanson, the widow’s nominee.

From this further order the named executor appeals, contending that no objection was made to his appointment, and that therefore he should have received letters testamentary under section 407 of the Probate Code, which provides, “If no objection is made, the court when admitting a will to probate must direct the issuance of letters thereon to the persons named therein as executors who are competent to discharge the trust, unless they or either of them have renounced their right.”

Prior to 1931 the effect of marriage upon a will previously executed by a man was governed by section 1299 of the Civi[ Code, which provided for the revocation of a

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will in its entirety if a testator married after execution of the will without making some provision for the woman he married, either by will, by contract, or by mentioning in the will his intention not to make provision for her. Section 1300 of the Civil Code made the same provision for total revocation in the case of a woman marrying after the execution of her will. Section 70 of the Probate Code, enacted when sections 1299 and 1300 of the Civil Code were repealed, includes husband and wife in the one section, and provides that “the will is revoked as to the spouse.” There is nothing in this language, of course, to indicate that the balance of the will is ineffective, and as a matter of fact, in the instant ease the will has been admitted to probate, subject .to the widow’s share, as we have seen, but the nomination by the deceased of his executor has not been given effect. It does not appear that objections were filed to the appointment of appellant, but respondent in her brief presents her reasons why, nevertheless, the action of the probate court in deciding in her favor between the two conflicting claims for letters should not be disturbed. Appellant’s contention that section 407 of the Probate Code makes it mandatory upon the court to appoint the executor named in the will, respondent answers by saying: ‘ ‘ Section 422 is just as mandatory in its terms. It provides that 1 Administration of the estate of a person dying intestate MUST be granted to one or more of the following persons, in the following order ... (1) The surviving spouse, or some competent person, whom he or she may request to have appointed’.” She then argues that - the revocation is total as to the wife, and that the paragraph of the will naming the executor cannot in any particular “detract from the surviving wife’s legal rights—in this case, the right to have her nominee administer the estate which she has inherited. ’ ’