Rolls v. Allen

TYLER, J.,

pro

tem.

Action in equity to establish the provisions of a joint and mutual will made by husband and wife. The case was before this court upon a former appeal taken from a decree of distribution in the matter of the estate of John Rolls, deceased. Two questions were there involved—one as to whether the assets of the estate were separate or community property, the other concerned the revocability of the joint and mutual wills made by John Rolls and his wife Leah.

(Estate of Rolls,

193 Cal. 594 [226 Pac. 608].) It was there held that the property involved was the community property of the spouses. It was further held that the remedy of a person injured by the violation of a contract to make testamentary provision for others, must be pursued in a court of equity and cannot be enforced in a probate proceeding. It is admitted by both parties that the facts in the present appeal are fully stated in the decision of this court in such former appeal. Briefly they show that John and Leah Rolls intermarried in Newfoundland in the year 1889. At the time of their marriage

[606]

John Rolls was the father of eight children the issue of a previous marriage, the youngest of whom was five years of age and the oldest seventeen. Pour of these children survived the father, the others dying without issue, and they are the plaintiffs herein. Leah Rolls was then the mother of two children by a previous marriage and they are defendants herein. No children were born as the issue of the marriage of John and Leah. In 1891, Rolls and his wife, accompanied by all of his children, left Newfoundland and became residents of this state. The children of Leah did not accompany them. The spouses, during their marriage, succeeded in acquiring community property of the value of about $23,660. On April 16, 1919, they executed a conjoint and mutual will in accordance with the provisions of section 1279 of the Civil Code. The will disposed of all their possessions. It was on one paper and provided that all their property, both real and personal, should be held by the survivor during his or her lifetime, the use and income thereof to be enjoyed by such survivor as he or she should deem best, during the remainder of the life of such survivor. It further provided that at the death of the survivor $1,000 was to be paid to Thomas K. Winsor, a grandson, when he became of age, and $500 to Jessie Rolls, a daughter-in-law, the balance to be equally divided among the surviving children of John Rolls. The will declares itself to be joint as well as several. The following day John Rolls died leaving surviving him his widow and his four children, the issue of his former marriage as above referred to. Upon his death his widow took possession of all the property jointly held by them and enjoyed the use and income thereafter until the date of her death, which occurred on April 11, 1921, a period of some two years. After the death of the husband and on the sixth day of November, 1920, the widow then eighty years of age, made and executed a will whereby she revoked as to herself the conjoint will and devised her share of the community property to her daughters, Maude Agnes Prowse and Sarah Dicks, and to her grandson, Thomas K. Winsor, respondents herein, in certain proportions. No steps were taken during the lifetime of the widow to probate her husband’s share of the estate. After her death defendant W. S. Allen, who was named as the executor in each of the wills, presented both