McEvoy v. Murphy

California Court of Appeal Nov 6, 1942 No. Civ. 12167Published

Before: Ward

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Holding. The court held that the appellants lacked standing to contest the decedent's will because the decedent had acquired a new title to the property, thereby removing it from the scope of Probate Code sections 228 and 229.

Issues

Whether Probate Code sections 228 and 229 confer an interest upon the descendants of a predeceased spouse that entitles them to contest the will of the surviving spouse.
Whether the decedent's conveyance of property and subsequent re-acquisition of title effectively removed the property from the status required for statutory succession by the predeceased spouse's heirs.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the section never sought to limit the right of the wife to dispose of it by will or conveyance”

“In the present case, Mrs. Flood obtained a new title.”

WARD, J.

This is an appeal from an order dismissing the petition of appellants to revoke the probate of the will of Catherine Flood, deceased, the petitioners being grandchildren of James Flood, the previously deceased spouse of Catherine.

The estate of Catherine Flood was inherited from her

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daughter Mary Frances Flood. It consists almost entirely of two parcels of real property in the city and county of San Francisco originally transferred to Catherine Flood by her husband James Flood in 1912 shortly before his death, by gift deed. In 1925, Mrs. Flood, also by gift deed, conveyed the two parcels of property to their daughter, Mary Frances Flood, and the mother and daughter continued to reside on one parcel up to the time of the death of the daughter in 1940. The daughter left her entire estate, consisting principally of the above two pieces of real property, to her mother. She executed three wills, in each of which she declared that her mother had given her all of said property; that it was her mother’s and must be returned to her. Mrs. Flood died in 1941, leaving her estate, acquired as above stated from her daughter, to her niece Katherine Murphy, and appellants seek to revoke the probate of her will.

The question involved on the appeal is whether sections 228 and 229 of the Probate Code, providing that if the decedent left no issue, and the estate or any portion thereof was separate property of a previously deceased spouse, or was the community property of the decedent and a previously deceased spouse, such property goes in equal shares to the children of the previously deceased spouse and to their descendants by right of representation, are applicable to this situation, at least to the extent of conferring upon such children or descendants such an interest in the estate of Catherine Flood as entitles them to contest the probate of her will.

In the matter of succession, the law in effect at the death of decedent controls. At the time of Mrs. Flood’s death, both sections included gifts made by a predeceased husband, if otherwise subject to the provisions of either section 228 or 229, “which should be construed together.”

(Estate of Rattray,

McEvoy v. Murphy

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WARD, J.

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