In re Estate of Comassi
Before: Harrison
Synopsis
Will or Married Woman—Revocation—Second Marriage—Construction of Code.—Section 1300 of the Civil Code, which provides that “ a will executed by an unmarried woman is revoked by her subsequent marriage, and is not revived by the death of her husband,” only applies to a will which is executed by a woman unmarried at the time of its execution, and does not apply to a will executed by a married woman, and such will is not revoked by a second marriage subsequent to the execution of the will.
Id.—Execution and Revocation of Will Statutory.—The right of any person to execute a will, as well as the form in which the will must be executed, or the manner in which it may be revoked, are matters entirely of statutory regulation.
Id.—Power of Married Woman to Make Will.—By the common law a married woman has no power to make a will, and the marriage of a woman revoked any will that she bad previously made; but in this state there is no restriction upon the power of a married woman to make a will, and, upon proof of its execution, it is entitled to probate the same as the will of any other person, unless it is shown to have been revoked in one of the modes prescribed by statute.
Harrison, J. Clara G. Comassi died in the city of Sacramento July 31, 1892, and thereafter a document bearing date June 23, 1877, purporting to be her last will and testament, was presented to the superior court for probate. The probate was contested by Mabel Delphina Comassi, formerly Mabel Delphina Eric, claiming as heir to the deceased by virtue of an adoption; and, upon the hearing of the contest, the court found that in May, 1886, upon proceedings had in the superior court for Yuba county, that court made an order declaring that Mabel should thenceforth be regarded as the child of said Clara G. Comassi, and that the said Mabel and the [4]said Clara should sustain towards each other the legal relation of parent and child. The court also found that the will was properly executed, and that at the time of its execution the deceased was in all respects competent to make a will; that she was at that time a married woman, the wife of one G. Comassi; that her husband died on the 26th of December, 1878, and that on the 25th of August, 1886, she was again married to Joseph O. Barbean, from whom she was subsequently divorced. The court held that her marriage subsequent to the execution of the will had the effect to revoke it, and denied the application for its probate. From this order the petitioner has appealed.
The right of any person to execute a will, as well as the form in which the will must be executed, or the manner in which it may be revoked, are matters entirely of statutory regulation. The power of the legislature to limit the class of persons who shall be competent to make a will, or to declare that a change in the personal status of such persons after its execution shall operate as a revocation of the will, or be a sufficient reason for denying it probate, is unquestioned. “ The Civil Code establishes the law of this state upon the subjects to which it relates” (Civ. Code, sec. 4); and, in order to determine whether a will has been properly executed or revoked, or whether after its execution there has been such a change in the status or personal relations of the testator as in law will effect its revocation, we have only to determine whether, in the one case, there has been a compliance with the requirements of the statute, or, in the other case, whether the changed condition of the testator is within the conditions named in the statute. By the common law a married woman had no power to make a will, and the marriage of a woman revoked any will that she had previously made. In this state, however, there is no restriction upon the power of a married woman to make a will, and, upon proof of its execution, it is entitled to probate the same as the will of any other person, un
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