Bridler v. Mitchell

HERNDON, J.

This is an appeal by Walter L. Bridler, individually and as executor, from a judgment determining interests in the estate of his deceased wife, and denying to appellant the one-half interest in the estate to which he lays claim under the provisions of section 70 of the Probate Code.

The facts are not in dispute: On August 11, 1952, decedent, Elizabeth Mitchell Bridler, executed her will. Seven days later she married appellant. The pertinent provisions of her will read as follows: ‘ ‘ Second : I declare that I am a single woman and I contemplate marriage with Walter L. Bridler, and I give, devise and bequeath to said Walter L. Bridler, should he survive me, all articles of personal domestic or household use or ornament including jewelry and similar articles, all of my furniture, books, pictures, plates, provisions, consumable stores and all household effects of every kind and all automobiles and motor vehicles and accessories thereto which I may own at the date of my death, and the sum of One Hundred Dollars ($100.00). Should said Walter L. Bridler not survive me, this gift shall lapse and the properties become a part of the residue of my estate. This gift is to be delivered free of estate and inheritance taxes.” The will gave the remainder of decedent’s estate in equal shares to decedent’s brother, sister, and sister-in-law, respondents here. In the last paragraph of the will appellant was nominated as executor.

Decedent died on November 18, 1955, appellant surviving her. The will was admitted to probate, and appellant qualified as executor. On March 6, 1957, he instituted proceedings pursuant to section 1080 et seq., of the Probate Code seeking a determination that the will was revoked as to him under section 70 of the Probate Code.

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[488]

A trial upon stipulated facts culminated in a determination by the trial court that appellant was provided for in the will and therefore that there was no statutory revocation. The parties stipulated that the property bequeathed to appellant was appraised at more than $4,000 and amounts to less than 3 per cent of the appraised value of the decedent’s estate. Appellant contends that as a surviving spouse he was not “provided for in the will” within the meaning of Probate Code section 70 by the gift to him of the described personalty and cash, which he calls a