The record-union., 1891-02-16

Court of said county, together with his
petition for its probate, and the issuance
to him of letters testamentary thereon.
To this petition the respondent, Aurelia
j. Corker, filed written opposition, al
leging that the said will had been re-
voked by reason of the marriage of the
decedent to her subsequent to its execu-
ton, and that no provision had been
made for her, either in the will or by
| marriage contract To this opposition
| after such marriage, and prior to the 9th
| of October, 1888, the decedent and con-
testant mutually agreed to separate and
| live apart, and ''in pursuance of said
agreement the said John r. Corker and
Aurelia J. Corker on said 9th day of
October, 1SSS, entered into q marriage
contract, or agreement in writing" un-
der their hands anil seals, which was
duly acknowledged and recorded in the
| office of the County Recorder of Los An
geles County; and that in consideration
of the coyenents in said marriage contract
contained, ''and as settlement and divis-
ion of all their property rights. the said
John r. Corker on said 9th day of October,
1888, executed to Aurelia deed" for cer-
tain real estate in Los Angeles County
| describing the same), of which she
thereupon took the possession, and that
they then separated and never after re-
sumed marriage relations.
The following is the instrument re-
ferred to in his answer as marriage con-
tract or agreement:
ut is agreed by and between Aurelia
j. Corker and John r. Corker, husband
and wife, of Los Angeles City and
County, State of California, as follows:
The said Aurelia J. Corker in considera-
ton of the said John r. Corker convey
ing to her by good and sufficient deed
this day executed contemporaneous here
with the lands therein described, does
hereby release and absolve him, the said
John X. Corker, from in any manner
contributing to her support as his wife or
otherwise, during their and each of their
natural lives. That she releases and con-
veys to him all right, claim or interest
that she may have in or to all community
property which has been or shall here
after be acquired by her said husband,
all right or claim to alimony or attorneys
! fees, costs or support in any manner dur
ing litigation or otherwise are for the
same consideration lin case of proceeding
! for the dissolution of the marriage be-
tween them is instituted by either party
4 hereto, is hereby released, and the said
John r.. Corker is absolved and dis
charged theretrom, and for the same con-
sideration she releases all right, claim or
interest that she may have by law or
otherwise in or to any property, real or
personal, that he may have at the time of
his death or to which he may then be en-
titled, and all right, claim and interest in
or to his estate after he is dead.
I'm consideration of the foregoing, the
/ said John r. Corker has conveyed and
does hereby again convey, sell and as
sign and set over to the said Aurelia j.
Corker, as her own separate property,
the lands and premises described in said
deed of even date herewith, to have, hold
and convey the same without let or
i hindrance from him, collect receive
have and enjoy the rents and profits
therefrom, and discharges, releases and
absolves her and her property now or
hereafter acquired by her from any, all
and every right. claim or interest which
1 he may have therein because the same
being IN law community property.
And it is further mutually agreed be-
tween the parties hereto that they will
each support and maintain themselves,
sell, convey, purchase, mortgage and do
all business regardless Of the other, the
same as If they were unmarried, the in
tention being to hereby settle now and
forever all property rights and interests
and relieve each other of all obligations
growing out OF or imposed by their mari
tai relations, as far as they can under the
law, and they hereby agree that they will
Immediately separate and live apart from
each other. AS there are no children
born of said marriage, and none have
been adopted by them, there are none to
SIN witness whereof the parties to this
agreement have hereunto set their hands
and seals this 9th day of October, 1888.
/ .'AURELIA J. CoRKER. [Seal.l
JOHN r. CoRKER. [Seal. l'
AT the hearing upon these issues the
contestant, for the purpose of defeating
the effect of the instrument of October 9,
1888, offered evidence to show that the
property conveyed to her in considera-
ton of its execution was her separate
property, and that consequently the
agreement made no provision for her,
and was without consideration.
The court in its decision took this view
OF the transaction, and found that the
property so conveyed to her had for a
long time prior thereto been her separate
property; that there was no other con-
Slderatlon for the execution of the agree
ment; that the agreement itself was not
fair and reasonable in it's terms; that the
release therein by the wife was not
founded upon sufficient consideration;
and that no provision had been made for
her by the decedent, either by marriage
contract, or in the will, and thereupon
denied probate to the will. A motion for
new trial was made by the proponent
upon the ground that the evidence was
t1 insufficient to justify the findings of the
4 court that the property so conveyed to
the wife was her separate property, or
thatithe agreement of October 8, 1883, was
i without any other consideration, or was
not fair, and reasonable inits terms; and,
also, its finding that no provision had
been made for her by marriage contract.
The motion for new trial was denied,
and from this order the proponent has
( appealed to this court.
Section 1899 of the Civil Code is as fol-
lows: If after making q will the testa-
tor marries and the wife survives the tes-
tor, the will is revoked, unless provision
hoc IL f.N,.t
tract, or unless she is provided for in the
will, or in such way mentioned therein as
to show an intention not to make such
provision; and no other evidence to rebut
the presumption of revocation must be
received" @
The term marriage contract" as found
u this section, is not defined in the code.
Section II of the Act, concerning wills,
passed April 10, 1850. At that time the
Legislature had before it the bill defining
the rights of husband and wife, which be-
came q statute April II, 1850 (Stats. 1850,
ps 2o4) and which contained chapter
headed Marriage Contracts.' An eX-
animation of the SECTIONS in that chapter
will show that the term, as used. therein,
refers entirely to ante-nuptial contracts;
and it is fairly presumable that the
marriage contract referred to in Sec
ton II of the Act concerning wills (now
Section 1899 of the Civil Code), is the one
referred to in the Act of April IL. 1850. de-
fining the rights of husband and wife.
When the Civil Code was adopted this
term in the chapter on Husband and
Wife" was changed to marriage settle
ment" and contract for marriage settle
ment'' &c. c., Secs. AT to 1871; and in con-
sideration of the provisions of Section 5
OF the Civil Code, we must presume that
the marriage settlement found in these
sections is the same as the marriage
contract" found in the Act of April IL,
1850, and consequently the same as the