Estate of Dillehunt

California Court of Appeal Nov 19, 1959 No. Civ. 6213Published

Before: Monroe

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Holding. The court held that the right of an adopted child to inherit as a pretermitted heir is governed by the law in effect at the time of the testator's death, rather than the law in effect when the will was executed. Consequently, because the amended Probate Code severed an adopted child's right to inherit from natural relatives, the petitioner was not entitled to a share of the estate.

Issues

Whether the right of an adopted child to inherit as a pretermitted heir is determined by the law in effect at the time of the will's execution or the time of the testator's death.
Whether the amendment to Probate Code section 257 effectively severed the petitioner's right to inherit from his natural grandmother.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is therefore held that the law in force at the time of the death of the testator governs, and accordingly appellant is not an heir at law and not a pretermitted heir.”

“The issue involved in this proceeding, however, is not the construction of the will but is whether defendant had a right of inheritance at the time of the death of the testator.”

MONROE, J. pro tem.

The deceased, Lallah

7¡.

Dillehunt, died in 1957, leaving a will executed October 31, 1950. The will provided that the husband of deceased should take all of her property if he survived her, and otherwise it should go to her daughter, Ceeile A. Gray. This will was duly admitted to probate. Thereafter, the petitioner, Anthony Orfila, filed his petition for determining interest in the estate, alleging that he was the pretermitted grandson of the deceased, being the son of a deceased son. The husband of the deceased died before her, so that by the terms of the will, as written, Mrs. Gray

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would take the entire estate. The will made no mention of the petitioner or his deceased father, and contained no provision for his disinheritance.

The material facts are that petitioner was born in 1937. He was the son of William Dillehunt, who was a son of deceased. In 1949, petitioner was adopted by Ernest Orfila, the father of petitioner consenting thereto. Both Orfila and Dillehunt Junior died in the year 1950 and subsequent thereto the will was executed. The will remained in force at the time of the death of decedent, which was after her husband had died.

The appellant appeals from the judgment and determination of the trial court that he is not a pretermitted heir and is not entitled to share in the estate.

Section 90 of the Probate Code provides for inheritance by pretermitted children and the issue of deceased children “whether born before or after the making of the will or before or after the death of the testator.” Section 257 of the Probate Code regulates the rights of inheritance of an adopted child.

It is established law in California that the son of a deceased child, if not excluded or disinherited from the will of the grandparent, not otherwise provided for, takes as a pretermitted heir.

(Estate of Brainard,

76 Cal.App.2d 850 [174 P.2d 702].) Prior to the amendment of section 257 of the Probate Code it was established in California that despite the fact of adoption, an adopted child inherited or took as a pretermitted heir from the estate of his natural parents or grandparents. The ruling is based upon the proposition that the statute as it then read did not take away from the adopted child the right of inheritance from his own natural ancestors despite the fact that he was given rights of inheritance in the estate of the adoptive parents.

Estate of Dillehunt

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