Estate of Smith

BRUTON, J., pro tem.

On May 15, 1933, Mrs. Nettie Frishholz Barnes made her will bequeathing her entire estate to certain nieces and nephews. In March, 1934, she became engaged to marry Gus R. Smith, the respondent herein, and remained engaged to him until their marriage on February 24, 1935. On January 8, 1935, Mrs. Barnes conveyed to respondent certain real estate. The granting clause of the deed is as follows:

“Witnesseth: That the said party of the first part for and in consideration of the love and affection which said party of the first part has and bears unto the said party of the second part, as also for the better maintenance, support, protection and livelihood of the party of the second part, does by these presents give, grant, alien and confirm unto the said party of the second part and to his heirs and assigns forever, all that certain lot, piece, or parcel of land, situate, lying and being in the County of Butte, State of California, and bounded and described as follows:” (Here follows a description of 100 acres of land.)

Eight days after her marriage to respondent Mrs. Smith died. The will above referred to, in which respondent was not mentioned, was offered for probate by the appellant,

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Ralph P. Hefner, who was named as executor therein. The probate was contested by respondent on the grounds that he was not named in, or provided for by said will, and that no provision had been made for him by marriage contract. Upon the hearing of the contest, the will and deed above referred to were received in evidence. Appellant made an offer of proof by parol evidence to show the state of Mrs. Smith’s health before and at the time of her marriage, and the sequence of events from her marriage to her death. As Mrs. Smith’s competency was not an issue, this offer was properly refused.

The will was admitted to probate. Appellant was appointed its executor, and the court revoked the will as to respondent, and decreed that as to him decedent died intestate. The question presented is: Was the deed of January 8, 1935, a “marriage contract” within the meaning of section 70 of the Probate Code? Section 70 of the Probate Code is 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.”.