Smith v. City of Hope

Opinion

MOORE, J.* City of Hope, sole beneficiary in decedent’s will, appeals from a judgment1 distributing decedent’s entire estate under Probate Code section 70 to the surviving wife, respondent herein.

Decedent disinherited his only living child in his will. The sole issue raised in this appeal is whether the surviving wife’s entitlement to the estate is to be determined in accordance with Probate Code section 221 or section 224.

[210]Probate Code section 221 provides for distribution under the rules of succession to a surviving spouse and issue and section 224 provides for distribution to a surviving spouse as sole survivor.

The code section to be used depends upon the construction to be given the disinheritance of decedent’s only living issue, his son.

Facts

Decedent Kenneth Lee Smith executed his last will on June 25, 1982; he later married Mildred M. Smith on May 2, 1983. He died June 15, 1983, leaving surviving him his wife Mildred, respondent herein, and a son, Michael Ray Smith.

All of decedent’s estate is separate property and his will was admitted to probate on November 18, 1983. Provisions of his will important to the issue raised are:

“First

“I am an unmarried man. I have one son, whose name is Michael Ray Smith. I have one deceased son, namely John Lee Smith.

“It is my express intent not to provide in this Will for my son, Michael Ray Smith, and his heirs.

“Fourth

“I give my entire estate, including all property of whatever kind and wherever located or deposited to the City of Hope, 208 West Eighth Street, Los Angeles, California 90014.”

Discussion

Probate Code section 70, which is applicable to this estate,2 provides in relevant part that if a person marries after making a will, the will is revoked as to the spouse. This does not cause a revocation of the entire will as it is the intent of this section to allow a pretermitted heir to participate in an estate to the extent of his or her intestate share, leaving