The herald., 1896-12-29
does not revive the former. An order In
accordance will be entered"
AN IRREvOCABLE WILL.
Such a Term Is q Misnomer, According
to Judge Clark.

| An opinion was handed down yester-
| day by Judge Clark in the estate Of
John C. Bell, deceased, well known dur
| ing his lifetime as q real estate auc-
| tioneer in this city.
Two Instruments, each purporting to
be the will of the deceased, were offered
for probate. One, of date June l, 1896,
was offered by Elizabeth Bell, the wild
ow, and one of date June A. 1885, was
offered by Jerome Curtin and Samuel
B. Dewey, who were named in 1t as
executors. The first will recites that all
differences existing between the testa-
tor and his former wife, Elizabeth Bell,
have been amicably settled, and that
they are about to be remarked, and
in consideration thereof he revokes all
previous wills made and declares it to
be his wish that his property shall be
distributed according to the statutes
of descent and succession, and nominates
said Elizabeth Bell as executrix.
BY the will of June 4 there is devised
"to my former wife. Elizabeth Bell, all
my real property situate on Philadel-
pfia street. Los Angeles, being a lot
land 40 feet by 125 feet" and all of the
residue of the estate is divided equally
between the testatpr's five children, the
interest of one of the children being
bequeathed in trust to the above named
executors.
No contest was filed to the will Of
June 1, but to the will of June Eliza
beth Bell filed a contest, and the ques-
tion to be decided arose on demurrer
thereto.
AS her first ground of contest plaintiff
alleges that at the time of the execu-
ton of the will of June 4 the deceased
was an unmarried man: that on June
20 the deceased and contestant inter-
married and were husband and wife at
the time of his death; that no provision
was made for her by marriage contract,
nor was she provided for in the will nor
mentioned therein in such manner as
to show an intention to make such pro-
vision. The allegations of the second
ground of contest are, briefly, that de-
ceased and contestant were first married
in 1852; that in the year 1873 they were
divorced; that in April, 1896. deceased
became impaired in health and needed
nursing, care and attention, and con-
testant, who was then residing in San
Francisco. came to him and nursed him
back to partial health; that when she
was about to return to her home de-
ceased importuned her to resume mar
ital relations by means of marriage
and to induce her to do so proposed to
deed to her a lot in the Wolfskill Or
chard tract, and further proposed to ex-
former Wills should be revoked and by
the terms of which she, the contestant,
would be entitled to receive one-third Of
the estate and to act as executrix and
receive commissions as such; that on
June she accepted the offer of deceased
and he then executed the will of that
date; that subsequently,, on June 20,
the marriage took place; that from the
time of the execution of the will and up
to the time of the marriage deceased re-
peatedly stated that he had not and
would not revoke or impair the provis-
ions of the will he had made, and be-
lieving the statements to be true, the
contestant consented to and did marry
the deceased.
In ruling upon the several points Judge
Clark overrules the demurrer to the
first count. The code declares that 'if
after making will the testator marries
and the wife survives the testator the
will is revoked unless provision has been
made for her by marriage contract, or
unless she is provided for in the will,
or in some 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
Opinions in other cases are cited. and
the court holds by this rule the first
ground of contest is sufficient as against
demurrer