Stivers v. Gansner

SCHOTTKY, J.

This is an appeal from an order of the trial court determining heirship in a proceeding brought by appellant, Raymond Stivers, pursuant to section 1080 of the Probate Code.

Frederick G. Gansner and Nellie C. Gansner were husband and wife. Frederick Gansner died intestate in November 1954, leaving both community property and property held in joint tenancy with Nellie. The property went to Nellie through the laws of intestate succession and by the right of survivorship. Nellie died testate on December 15, 1959. Her will, which was executed on January 22, 1954, prior to her

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husband’s death, was prepared by an attorney of 45 years’ experience. Paragraphs Seventh, Eighth and Ninth of her will are involved in this appeal. They provide as follows:

“SEVENTH.

“I hereby devise and bequeath all my interest in the community property of myself and my said husband, to my said husband, F. G. Gansner; and any thereof remaining after the death of my said husband I hereby devise and bequeath to Katherine Irene Sharp, my niece, residing at Winters, California, and to Raymond Stivers, my nephew, residing at Stockton, California, share and share alike.”

“EIGHTH.

“I hereby devise and bequeath to my said husband, F. G. Gansner, all of my separate property and all property standing in my name alone, to have and to hold for the remainder of his life and, upon his death, the same to go to said Katherine Irene Sharp and to Raymond Stivers, share and share alike.”

“NINTH.

“In the event my said husband, F. G. Gansner, does not survive me I hereby devise and bequeath all of my interest in the community property of myself and my said husband and all of my said separate property to my said niece, Katherine Irene Sharp, and to my said nephew, Raymond Stivers, share and share alike, and all property that I may inherit from my said husband, F. G. Gansner, either community property or separate property of my said husband, I hereby devise and bequeath to George Gansner, residing at Arcadia, California, and Freda Hodge, residing at Redlands, California.”