In Re the Estate of Kurtz

SHAW, C. J.

This is an appeal from an order denying probate to the will of deceased.

The will was made on June 3, 1921. The next day, to wit, June 4, 1921, the testator married the contestant.

The will was contested on the ground that it was revoked by the provisions of section 1299 of the Civil Code, which are as follows: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 wife he married on June 4, 1921, he continued to live with as such until his death, which occurred on November 2, 1921.

The material portions of the will are as follows, to wit:

“Second: I hereby declare that I am a single man, and my only living relatives are my father, Leonhurt Kurtz, also known as Leonhurt Kurz, of the town of San Pedro, City of Los Angeles, County of Los Angeles, State of California, and my sister, Ida Dunn, of the City and County of San Francisco, State of California.

“Third: I hereby give, devise and bequeath all the property, both real and personal, of which I may be legally possessed at the time of my death, to my beloved father, Leonhurt Kurtz, also known as Leonhurt Kurz, of the town of San Pedro, City of Los Angeles, County of Los Angeles, State of California, and in the event of the death of my said father prior to the date of my own death, then, and in that event only, I hereby give, devise and bequeath all the property, both real and personal, of which I may die legally possessed, to my beloved sister, Ida Dunn, of the City and County of San Francisco, State of California.

“Fourth: I hereby generally and expressly disinherit each and all persons whatsoever claiming to be, and who may be, my heirs at law, except as such may be determined

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by this will, and if any of such parties or such heirs, or any person whomsoever who, if I died intestate, would be entitled to any part of my estate, shall either directly, singly, or in conjunction with other persons, seek or establish or assert any claim to my estate, or any part thereof, excepting under this will, or attack or oppose or seek to set aside the probate of this will, or impair, invalidate or set aside the provisions, or endeavor to secure or procure any part of my estate other than through or under this will; then in any or all of the above-mentioned cases and events, I hereby give and bequeath to said person or persons the sum of One ($1.00) Dollar and no more in lieu of any other share or interest in my estate, and all the rest of the interest, share or property which would otherwise have gone to such person or persons by devise or inheritance, or which they might be entitled to take under any provision of law shall go, and I hereby give, devise and bequeath the same, to my said father, Leonhurt Kurtz, also known as Leonhurt Kurz, of the town of San Pedro, City of Los Angeles, County of Los Angeles, State "of California, or in the event of his death prior to my death, and in that event only, I hereby give, devise and bequeath the same to my said sister, Ida Dunn, of the City and County of San Francisco, State of California.”