Stewart v. Van Noy

I dissent. The issue for our determination is whether property devised by the will of the last survivor of a mutual will made pursuant to a written contract is included as part of decedent’s estate for the purpose of computing the surviving spouse’s share pursuant to section 70 of the Probate Code.

It is appellants’ position that decedent’s estate is limited by the consequences of his contract and that the surviving spouse’s rights operate only on the property not subject to the contract.

Section 70 of the Probate Code reads: “If a person marries after making a will, and the spouse survives the…