Estate of Riddel

104 Cal.App.2d 162 (1951) Estate of BIRDELLA MAY HUDSON RIDDEL, Deceased. VERONA MAY d'OYLEY, Respondent,

v.

WALTER RIDDEL, Appellant.

Civ. No. 18317. California Court of Appeals. Second Dist., Div. Two.

May 14, 1951. Hahn, Ross, Goldstone & Saunders for Appellant.

Sherman, Thompson & McCarthy for Respondent.

MOORE, P. J.

The executrix of the estate having filed her petition for ratable distribution and for allowance on account of statutory commissions and fees the surviving husband filed his objections thereto, pursuant to section 70 of the Probate Code. [fn. 1] The demurrer to the husband's objections having been sustained without leave to amend and the court having made its order for ratable distribution and for allowance on account of commissions and fees the husband appealed from the order for distribution and purportedly appealed from the order sustaining the demurrer to his objections.

Decedent made a will prior to her marriage but did not mention her prospective husband. She was thereafter wedded to appellant. In a codicil later signed by her no provision for either including or excluding a bequest in appellant's favor was to be found. In such situation appellant asserts the will was revoked, citing Estate of Piatt, 57 Cal.App.2d 211 [134 P.2d 321]; Estate of Rozen- Goldenberg, 1 Cal.App.2d 631 [37 P.2d 132]; Cal. Probate Code, section 70. Appellant admits the Estate of Seiler, 176 Cal. 771 [170 P. 1138, 179 P. 389], and Estate of Cutting, 172 Cal. 191 [155 P. 1002, Ann.Cas. 1917D 1171], held that a codicil executed after marriage republishes a will made prior to the marriage, but contends that such holding is purely dictum.

[1] To uphold such contention would be error. Where a [164] will or a codicil is republished after the marriage of a testator and it refers to the first will, then by section 25 [fn. 2] of the Probate Code the effect of such subsequent will or codicil is a republishing of the will as modified by the codicil and the two instruments constitute one will and they speak from the date of the codicil. (Estate of Seiler, supra, 772; Estate of Cutting, 172 Cal. 191, 197 [155 P. 1002, Ann.Cas. 1917D 1171].)