In Re Estate of Seiler

MELVIN, J.

The widow of Paul Seiler, deceased, appeals from a judgment admitting to probate two certain instruments as the last will and testament of said Paul Seiler.

One of the documents admitted to probate was dated July 6, 1909. The latter, which is dated October 8, 1914, is in form a codicil to the testator’s “last will.” By it he announces the republication “in every particular” of the said will theretofore made by him and then “in full force and effect, ’ ’ subject to certain' exceptions which we quote below:

“Because of the death of my son Adolph, I give one-third (%) of the business known as the Paul Seiler Electrical. Works to his mother Huida Seiler, and also give one-third (%) of said business to Frank Herrguth, and, also, because of my recent marriage I give one-third (%) of the said business to my present wife, Alice C. Seiler.”

Appellant seeks a reversal upon numerous grounds, the first being that the will of July 6, 1909, was revoked. It appears that Mr. Seiler married contestant after the execution of the will of 1909, and it is argued that since thereby that writing was revoked (Civ. Code, see. 1299), the reference in the codicil to a will, “now in full force and effect,” could not have been intended as applicable to said instrument. If the will of 1909 was otherwise sufficiently identified as the one to which the testator referred in the codicil, although his marriage left the former instrument, if standing alone, without effect because of the provisions of section 1299 of the Civil Code, it does not follow that it had no testamentary force in making the postnuptial will. Indeed, a codicil may operate entirely to republish such an instrument in' every particular.

(Estate of Cutting,

172 Cal. 191, [Ann

[773]

Cas. 1917D, 1171, 155 Pac. 1002].) Upon the execution of the codicil the testator might say with truth, therefore, that a former will was “now in full force and effect.”

But it is argued that a few days before the execution of this codicil, Paul Seiler had executed another testamentary instrument which better fitted the description of the will sought to be republislied than the writing of July 6, 1909. The testimony regarding this instrument is conflicting. Mrs. Alice C. Seiler, the contestant, said that it was brought to Mr. Seiler by his trusted employee, Mr. Herrguth. She looked over the latter’s shoulder while he was reading it. Regarding the document she testified as follows: “The substance of it as nearly as my memory will serve me was, ‘On account of the death of my son, Adolph Seiler, I give the Paul Seiler Electrical Works to Prank Herrguth, and on account of my recent marriage to Alice C. Seiler, I give her one-fourth, ’ and below that there was a space, and below that it said ‘I appoint Prank Herrguth executor without bonds.’