McGowan v. Anglo California National Bank

PEEK, J. This is an appeal by plaintiff from the judgment and order denying her claim as a pretermitted heir of Frank Talmage and decreeing final distribution of the estate.

The decedent had five children, four of whom survived him. The fifth, Frank Talmage, Jr., predeceased his father and left surviving him one child, Joan Talmage McGowan, the appellant herein.

Through her guardian ad litem Joan filed objections to the petition for distribution of her grandfather’s estate upon the ground that under Probate Code, section 90, she was a pretermitted heir and hence entitled to succeed to the same share of his estate as if he had died intestate. Said section reads as follows:

“When a testator omits to provide in his will for any of his children, or for the issue of any deceased child, whether [19]born before or after the making of the will or before or after the death of the testator, and such child or issue are unprovided for by any settlement, and have not had an equal proportion of the testator’s property bestowed on them by way of advancement, unless it appears from the will that such omission was intentional, such child or such issue succeeds to the same share in the estate as the testator as if he had died intestate.”

At the conclusion of the hearing upon the issue so raised the court found her to be the granddaughter of the decedent by a-predeceased son; that it was not true that decedent failed or omitted to provide for her; that she was provided for in paragraph Eighth of his will; that it was true neither she nor her father was mentioned by name in decedent’s will; “that it is true that Frank Talmage, deceased, provided for said Joan Talmage McGowan in paragraph ‘Eighth’ of said Will and therein gives and bequeaths to her the sum of $1.00”; and that it is not true that Joan Talmage McGowan is a pretermitted heir of decedent and entitled to share in his estate as if he had died intestate. The judgment which was thereafter entered awarded Joan the sum of $1.00.

The parties appear to be in agreement that paragraph Eighth of the will is the only portion thereof bearing on the determination of the questions so raised. That paragraph reads:

“I have purposely made no provision for any other person, whether claiming to be an heir of mine or not, and if any person, whether a beneficiary under this Will or not mentioned herein, shall contest this Will or object to any of the provisions hereof, having established in a court of competent jurisdiction a right to participate in my estate in any degree whatsoever, I hereby give and bequeath to such person or persons the sum of One Dollar, and no more, in lieu of the provision which I have made, or which I might have made, herein for such person or persons so contesting or objecting.”