Estate of Derruau

SPENCE, J.

This is an appeal by Maurice Derruau, one of the heirs of Elie Derruau, deceased, from the decree of final distribution herein.

In 1929, Elie Derruau made his will and thereafter in 1930 married Marie Couralet, who survived him upon his death in 1932. Prior to 1931 and at the time of the testator’s marriage, section 1299 of the Civil Code provided: “If, after making a will, the testator marries, and the wife survives the testator, the will is revoked, unless ...” In 1931 said section was repealed. At that time a new section designated as section 70 of the Probate Code was adopted and was in force at the time of the testator’s death. The new section provided: “If a person marries after making a will, and the spouse survives the maker, the will is revoked

as to the spouse, unless

...” (Italics ours.) It will be seen at a glance that the original section provided for a total revocation while the new section provided for a partial revocation, viz., a revocation only as to the surviving spouse. The testator’s will herein was admitted to probate and by the decree of final distribution the estate was distributed thereunder except that said will was treated as revoked as to the surviving wife.

Relying on the provisions of the original section (sec. 1299, Civ. Code) in force at the time of the testator’s, marriage, appellant contends that the revocation was total, but in our opinion this contention cannot be sustained. Appellant cites and relies upon

Estate of Berger,

198 Cal. 103 [243 Pac. 862, 864], but that decision is not in point. There the court was dealing with an antenuptial will of a woman. After making her will the testatrix married twice and her second husband predeceased her. Section 1300 of

[771]

the Civil Code in force at the time of her marriages provided: “A will, executed by a woman, is revoked by her subsequent marriage, and is not revived by the death of her husband.” That section as amended in 1919 and in force at the time of the testatrix’s death in 1924 read: “If, after making a will, the testatrix marries, and the husband survives the testatrix, the will is revoked, unless ...” It was there held that the will was not entitled to probate as the marriage of the testatrix had produced “absolute and complete revocation” under the statute in force at the time and that the will was not “revived by a subsequently enacted statute changing the manner of revocation”.