Estate of Green

Opinion

RACANELLI, P. J.

On March 11, 1974, decedent, then an unmarried man, executed his last will and testament in which he designated appellant, his natural sister, as primary beneficiary of his entire estate. Under the relevant provisions of the will, decedent specifically disinherited Arillia Washington—whom he planned to marry—as well as any person claiming as issue of decedent or “any other person not specifically mentioned in this Will, whether related by marriage or not.”

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Decedent never married Arillia but instead married respondent, Ruby Austin, on August 12, 1978. On January 19, 1979, decedent died without issue leaving an estate the bulk of which constituted his separate property. During the ensuing probate respondent filed a petition to determine heirship claiming in essence that since the prenuptial will failed to provide for her, it was effectively revoked under the provisions of Probate Code section 70 entitling her to succeed to all of the community property and one-half of the separate property under the laws of intestate succession. (Prob. Code, §§ 201 et seq., 223;

Estate of Piatt

(1947) 81 Cal.App.2d 348, 350 [134 P.2d 321].) Relying principally on the holding in

Estate of Axcelrod

(1944) 23 Cal.2d 761 [147 P.2d 1] (and cf., dis. opns. in

Estate of Duke

(1953) 41 Cal.2d 509, 516-518 [261 P.2d 235]) the trial court rendered judgment in favor of respondent finding that as to her the will was revoked under the authority of Probate Code section 70 entitling respondent to take under the laws of intestacy. Following denial of appellant’s request for reconsideration and motion for new trial, this appeal ensued.

[592]

The sole question on appeal is whether respondent was mentioned in the will in such manner as “to show an intention not to make such provision . . .. ” (Prob. Code, § 70) precluding statutory revocation.

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