Estate of Ryan

LAWLOR, J.

This appeal is taken from a judgment denying a petition for the probate of the will of James W. Ryan, deceased, by Thekla Ryan, the petitioner, and Norton B. Anderson and Presley M. Norton, devisees under the will. Decedent’s purported will reads as follows:

“City of Los Angeles, County of Los Angeles, State of California. November 14, 1921.

“This is my last will hereby revoking any instrument made prior to this date. I leave to Mable Williams the sum of $250.00. To Medora Williams the sum of $250.00. To B'llen T. Ryan one thousand dollars. To Maude Larkin fifteen hundred dollars.

“The rest of my estate both real and personal to be divided in equal parts. One half going to Norton B. Anderson or his heirs—and the other one half to go to Presley M. Norton or his heirs.

“It is my wish that my body be cremated.

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“I appoint Thekla T. Mohr executrix of my estate without bond and Robert D. McLaughlin attorney.

“It is my wish that estate be wound up as early as possible.

“James W. Ryan.”

On February 17, 1922, decedent was married to Thekla T. Mohr, named in the will as executrix, and on the twenty-third day of the same month he died. The petition for probate was filed on March 8th following. Respondents Mary N. Ryan and Maude Ryan, two surviving sisters of decedent, neither of whom was mentioned in the will, appeared and contested the probate on the ground that the will was revoked by the decedent under section 1299 of the Civil Code, which is as follows: “If, after making a will, the testator marries, and the wife survives the testator, the will is revoked, unless provision has been made for her by marriage contract, or unless she 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 must be received.” The trial court, over objection by respondents, and subject to subsequent ruling, permitted appellant, Thekla Ryan, to testify that she had known the decedent about ten years; that they were engaged to be married for about seven years; that they were- engaged at the time decedent drew the will; that pursuant to the engagement she married him, and that at the time of making the will decedent knew of her state of health, her financial condition, and her habit of life. In its findings of fact, the court indicated its opinion that no other evidence than the will itself should be received to interpret it; that extrinsic evidence should not have been received and that respondents’ objection should have been sustained. It was further found that no provision was made for appellant Thekla Ryan by marriage contract; that she was not provided for in the will in question and was not mentioned therein in such a way as to show an intention not to make such provision. As a conclusion of law it was found that the will was revoked and not entitled to be admitted to probate.