Payne v. Payne

Citations

• 18 Cal. 291
• 1861 Cal. LEXIS 182

Syllabus

<p>Under the eleventh section of the Act of 1850, defining the rights of husband and wife, which reads : “ Upon the dissolution of the community by' the death of either husband or wife, one-half of the common property shall go to the survivor, and the other half to the descendants of the deceased husband or wife, subject to the payment of the debts of the deceased,” one-half of the common property goes, on the death of the husband, absolutely to the wife, and the remaining half is subject to the testamentary disposition of the husband ; in the absence of such testamentary disposition, such half goes to the descendants of the husband—that is to a particular class of his heirs.</p> <p>Beard v. Knox, (5 Cal. 252) upon this subject,_affirmed.</p> <p>The codicil to a will operates as a republication of the will, and the two are to be regarded as forming but one instrument, speaking from the date of the cpdicil.</p> <p>Where a will gives all the testator’s property to his wife, without naming his children, and subsequently a codicil is made referring to the will and mentioning the children: Held, that the codicil and the will must be read together as parts of one instrument in determining whether the omission to provide for the children was intentional, within the seventeenth section of the Act of 1850 concerning wills, which declares that if the testator omit to provide in his will for his children, they shall inherit the same share in his estate as if he had died intestate, “unless it shall appear that such omission was intentional.”</p> <p>Held, further, that the only object of the statute is to protect the children against omission or oversight, frequently arising from sickness, old age or other infirmity, or the peculiar circumstances under which the will is executed; and that whenever the children are present to the mind of the testator—and of this the fact that they are mentioned is conclusive evidence—the statute affords-them no protection if provision jg not made