REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF CALIFORNIA.

:

[No. 18393. In Bank.-April 8, 1895.]

IN THE MATTER OF THE ESTATE OF CLARA G. COMASSI, DECEASED. A. C. SEARLE, APPELLANT.

WILL OF 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 had previously made; but in this state there is no restriction apon 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proof of its execution, it is entitled to probate the same as the will of any other person, unless it is shown to have been revoked in one of the nodes prescribed by statute.

APPEAL from an order of the Superior Court of Sacramento County refusing to admit a will to probate and denying a new trial.

The facts are stated in the opinion of the court.

A. C. Searle, in pro. per., Appellant.

The testatrix having been married at the time of the execution of the will in question, her subsequent marriage after the death of her first husband did not operate as a revocation of the will. (Civ. Code, sec. 1273; In re Burton's Will, 4 Miscellaneous Rep. (N. Y.) 12; 25 N. Y. Supp. 824; In re Kaufmann, 131 N. Y. 620; Will of Ward, 70 Wis. 257; 5 Am. St. Rep. 174; In re Tuller's Will, 79 Ill. 99; 22 Am. Rep. 164; Noyes v. Southworth, 55 Mich. 173; 54 Am. Rep. 359; Webb v. Jones, 36 N. J. Eq. 163; Fellows v. Allen, 60 N. H. 439; 49 Am. Rep. 329; Hoitt v. Hoitt, 63 N. H. 475; 56 Am. Rep. 530; Morton v. Onion, 45 Vt. 145; In re Carey's Estate, 49 Vt. 236; 24 Am. Rep. 133.) The provision of the code that "a will executed by an unmarried woman is revoked by her subsequent marriage" negatives the idea that the legislature intended to revoke the will of a married woman in case of her second marriage. (Morgan v. Devenport, 60 Tex. 230.) The language of section 1300 of the Civil Code, referring to a will executed by "an unmarried woman," is plain and unambiguous, and cannot be altered by construction. (People v. Johnson, 6 Cal. 500; Nougues v. Douglass, 7 Cal. 67; People v. Weller, 11 Cal. 77, 89; Pena v. Vance, 21 Cal. 149; Hawley v. Brumagin, 33 Cal. 394; Shaver v. Murdock, 36 Cal. 296; Castro v. Tennant, 44 Cal. 258; Tape v. Hurley, 66 Cal. 474.) Under our law there is no implied revocation of a will, and, when the will was valid when made, "it could only be revoked or altered by a subsequent writing duly executed, or by obliterating or destroying with intent to revoke." (Civ. Code, sec. 1292; In re Tillman's Estate, (Cal., Dec. 7, 1892), 31 Pac. Rep. 563; In re Hickman, 101 Cal. 613; Code Civ. Proc., sec. 1970.)

Armstrong, Bruner & Platnauer, for Respondent.

The cases cited by appellant do not apply in this state, as they were decided under the influence of the common-law rule that statutes in derogation of the common law must be strictly construed, while, under the law of

this state, the code is to be liberally construed, with a view to effect its objects and promote justice. (Civ. Code, sec. 4; Estate of Apple, 66 Cal. 434; Carrasco v. State, 67 Cal. 386; Lux v. Haggin, 69 Cal. 370; People v. Soto, 49 Cal. 68; Ex parte Gutierrez, 45 Cal. 429; Goldtree v. Swinford, 74 Cal. 589, 590.) Where the husband is entitled to inherit from the wife the will will be revoked by the subsequent marriage. In this state he is entitled to inherit (Civ. Code, sec. 1386;

whether she has children or not.

Tyler v. Tyler, 19 Ill. 151; also closing paragraph in Lansing v. Haynes, 35 Am. St. Rep. 548; McAnnulty v. McAnnulty, 120 Ill, 26; 60 Am. Rep. 552; Young's Appeal, 39 Pa. St. 115; 80 Am. Dec. 513, and note 516; Gay v. Gay, 84 Ala. 38; Swan v. Hammond, 138 Mass. 45, 52 Am. Rep. 255; note to Graham v. Burch, 28 Am. St. Rep. 358, Lathrop v. Dunlap, 4 Hun, 213; Loomis v. Loomis, 51 Barb. 257.) But if section 1300 of the Civil Code is to be so construed as not to include a woman who made a will while married, but afterwards became a widow and married again, then such case is covered by sections 1298 and 1299 of that code, if the rule that words used in the masculine gender include the feminine be applied. (Civ. Code, secs. 14, 1298, 1299.) The following cases bear upon the question here presented: McGuire v. Brown, 41 Iowa, 650; Milburn v. Milburn, 60 Iowa, 411.

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