In Re the Estate of Marx

The record presents an appeal by Stephanie Henke, a niece of the decedent, and her only heir at law, from an order admitting to probate, as constituting together the last will of the decedent, two documents testamentary in character, executed at different dates.

The decedent died on May 14, 1914. One of the documents in question was dated March 8, 1910, the other March 26, 1913. The latter was found immediately after her death and, on petition of the persons named therein as executors, was duly admitted to probate on June 8, 1914. Several months after their appointment as executors, upon examining the other papers and effects of the decedent, they discovered the document dated March 8, 1910. Being in doubt whether the document of 1910 constituted a part of the will of the decedent, or was revoked by the will already admitted to probate, they filed a petition, upon which the order appealed from was made, alleging the probate of said will of 1913, the subsequent discovery of the will of 1910, together with the other *Page 764 facts made essential by the code to a petition for the probate of a will, and praying, in the alternative, that the two documents be admitted to probate together as the last will of the decedent; or, that the will of 1910 be admitted as the last will, or that the will of 1913 alone be declared to constitute the will; also that if the court found that the will of 1910 constituted any part of the will of the decedent, it revoke the order previously made admitting the will of 1913 to probate.

Upon the hearing of this petition the court made an order declaring that the decedent left the said two wills dated respectively, March 8, 1910, and March 26, 1913, that they together constituted the last will of the decedent, and admitting the came to probate as such last will. The order also declared that the previous order of June 8, 1914, admitting to probate the document of March 26, 1913, alone, as the last will of the decedent, "be vacated and set aside and that all proceedings thereunder be vacated and set aside."

The will of 1913 contained no declaration as provided in section 1292 of the Civil Code revoking the will of 1910. The appellant contends that it was wholly inconsistent therewith and consequently operated as a revocation by implication, under the rule prescribed by section 1296 of the Civil Code, which is as follows:

"A prior will is not revoked by a subsequent will, unless the latter contains an express revocation, or provisions wholly inconsistent with the terms of the former will; but in other cases the prior will remains effectual so far as consistent with the provisions of the subsequent will."