Sanders v. Simcich

Citations

• 65 Cal. 50
• 2 P. 741
• 1884 Cal. LEXIS 437

Syllabus

<p>Findings—Mateeial Issues.—In a proceeding to set aside the probate of a will where only part of the material issues made by the pleadings are submitted to a jury, the court should, if requested, hear testimony and make findings as to the remaining issues.</p> <p>Will—Mabbiage—Revocation.—Where an unmarried man has made a will and afterwards marries, the marriage operates in case of the survival of the wife or children of the marriage as a revocation of the will, unless some specific provision has been made by the will itself, or by a marriage contract for the surviving wife, or by some settlement or provision for the surviving children. If no such provision or contract is made, the law conclusively presumes a revocation of the will from the act of marriage.</p> <p>Evidence—Subvivoeship.—When both husband and wife perish in the same calamity, no presumption of survivorship of the wife arises from the fact that an order of a Probate Court granting letters of administration upon her estate recites that she was “the surviving wife” of her husband. In a proceeding by her administrator to set aside the probate of her husband’s will, it is error to refuse evidence aliunde upon the question of survivorship.</p>