McDonald v. Stevenson

ADAMS, P. J. This is an appeal from a judgment awarding to a pretermitted daughter of Frederick C. Stahl, deceased, one-half of the estate of said decedent, and denying her claim to be awarded the whole thereof.

Stahl died testate, leaving as his only heirs-at-law a widow, Anna Stahl, and a daughter by a former marriage, Marguerite McDonald. In his will he declared that all of his property was the community property of his surviving wife and himself, and he left one-half of it to his said wife, and [563]the other half to respondents. No mention of his daughter was made in his will. The daughter filed a petition to have her heirship determined. The trial court found that her omission from the will had been unintentional, and that she had not been provided for by way of settlement, advancement, or otherwise. However, the property of the testator, at the time of his death, was found to be his separate property, and not community property, and it was held that as the surviving wife was not given any separate property, she took nothing under the will, and that Marguerite McDonald was entitled to one-half of the estate, and the legatees named in the will, to the other half. Prom that part of the decree awarding one-half of the estate to the named legatees, Marguerite McDonald has appealed.

Section 90 of the Probate Code provides that when a testator unintentionally omits to provide for a child in his will, and such child is unprovided for by any settlement, and has not had an equal proportion of the testator’s property bestowed by way of advancement, such child “succeeds to the same share of the estate of the testator as if he had died intestate.” Under sections 221 and 222 of the Probate Code, if a decedent dies without disposing of his separate property by will, and leaves a surviving spouse and only one child, the estate goes, one-half to the surviving spouse and one-half to the child; but if decedent leaves no surviving spousé, the whole estate goes to his issue.

Appellant contends that since in this case the surviving widow is by the will in effect disinherited, that she is not a “surviving spouse” within the language of the foregoing statute for the purpose of determining the share of the estate that goes to appellant herein; and that appellant succeeds to the entire estate, as if decedent had left no surviving spouse. She argues that while a pretermitted child succeeds to the same portion of the testator’s estate as if no will had been made, and that as to such portion the testator is regarded as dying intestate, that nevertheless the will is not revoked or invalidated; that it is to be relied upon insofar as it disinherits the widow, but not insofar as it gives any portion of the estate to the named legatees. It is argued by analogy that section 258 of the Probate Code prohibits a person convicted of the murder of a decedent from sharing in the estate of such decedent, and that if the heirs of an intestate decedent were one child, and a widow who had been convicted of his murder, the widow could not share