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In re Estate of Clark - 94 Cal. App. 453 (Dist. Ct. App. 1928)


California law specifically provides that any person interested may appear and contest a will and includes heirs as among those interested. Cal. Civ. Proc. Code § 1307. Broadly speaking, a contest of a will is in its essence an action for the recovery of property unlawfully taken or about to be taken from the ownership of the contestant. While the mere expectancy of an heir is not usually regarded as property, the moment the ancestor has died, that expectancy is changed into a vested interest in property. It becomes thus vested by virtue of the death. The contest of a will therefore goes to establish upon the part of the contestant that his right to property has been violated. This right is such as Cal. Civ. Code § 954 declares upon: A thing in action, arising out of the violation of a right of property may be transferred by the owner.


Major Clark fathered three children by his first marriage. On July 29, 1923, his son, Edwin Howard Clark died; about two weeks after Edwin's death, Major Clark married Eliza Simpson Clark. Major Clark would have inherited his son's entire estate, which consisted chiefly of such mineral rights and the revenues that flowed from those mineral rights, had Edwin died intestate. Edwin, however, left a document, purporting to be a will, leaving nothing of consequence to his father, Major Clark, and instead left the entire estate to other persons. Major Clark contested the will, which was admitted to probate but eventually, Major Clark and the other heirs entered into a settlement where Clark would get half of Edwin's estate. 

Major Clark passed on February 12, 1926, leaving his two children and his widow as his heirs. After Major Clark's death, his surviving children petitioned for partial distribution of his estate under his will, which established a trust fund for the widow but left the bulk of his property to the children. The widow relinquished her rights under the will and elected to take her share of the couple's community property. She sought to have the mineral rights and revenue acquired from Edwin's estate to form part of the couple's community property, arguing that Major Clark received the property from his son's estate after the couple's marriage. The trial court entered judgment distributing property from the decedent's estate to his children rather than to his widow, holding that the property was not community property but rather separate property.


Were the mineral rights and revenue derived from a decedent's son's estate considered community property of the decedent's second marriage?




The court affirmed the trial court's distribution of that property to the children, holding that the property was the decedent's separate property because Major Clark's right to contest the will of his son vested prior to his marriage, at his son's death, an tdhe property he received from the estate was in compromise of his relinquishment of that right.

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