Neathery v. Patterson

DORAN, J.

Evelyn C. Neathery died testate on July 14, 3951; appellant is decedent’s husband, and the respondent Dorothy Patterson is decedent’s daughter by a previous marriage and executrix named in the will.

The will bequeathed to the husband “all of my interest in the household furniture and furnishings now located in the real property in the name of either or both of us. To any other person claiming an interest in my estate, I give the sum of $1.00 and no more. Fourth : I hereby give, devise and bequeath all of the rest, residue and remainder of my estate, real and personal, including jewelry, of whatever kind or character and wherever situated to my beloved daughter, Dorothy Patterson.”

Subsequent to execution of the will, and on June 12, 1951, testatrix executed three grant deeds to the daughter, conveying the property alluded to in the will, but reserving a life estate therein to appellant husband and the decedent. According to these deeds the property was held by Mr. and Mrs. Neathery as joint tenants. It is to be noted, however, that in an action for declaratory relief and to quiet title (Ventura County, No. 44283), brought by Clarence M. Neathery against Dorothy Patterson, a judgment was entered on February 14, 1955, adjudging that this real estate was the community property of Mr. and Mrs. Neathery. An appeal from this judgment was abandoned.

The order appealed from is one denying Clarence M. Neathery’s “Petition for Decree Determining Interests in Estate and to Construe Will,” which prayed “That the court will order and decree that the legal effect of the delivery of the three grant deeds to Dorothy Patterson her daughter on the 12th day of June, 1951, after she had made her last will and testament was an ademption and gift of the real estate in Clause Fourth thereof and a revocation of the testamentary disposition of said devise.” The order made by the trial court determines that “the deeds involved herein were nullities and did not constitute an ademption.”

Section 73 of the Probate Code, upon which appellant’s claim is predicated, reads as follows: “If the instrument by which an alteration is made in the testator’s interest in any property previously disposed of by his will expresses his

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