Sec. 637. When the county judge may open will.

The county judge with whom a will is deposited, or to whom it is delivered, must, after the death of the testator, publicly open and examine the will and file in his office, there to remain until duly proved, or to deliver it to the county judge having jurisdiction of its probate.54

Sec. 638. Proof of lost or destroyed will.

A lost or destroyed will of real or personal property, or both, may be established in the cases provided in the Probate Code, or any act in force on that subject.55

Sec. 639. Revocation of wills.

Except in cases in this chapter mentioned, no written will or any part thereof, can be revoked or altered otherwise than: 1. By a written will or other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which a will should be executed by such testator; or,

2. By being burnt, torn, canceled, obliterated or destroyed, with intent and for the purpose of revoking the same, by the testator himself, or by some person in his presence and by his direction.56

Sec. 640. Proof of destruction of will.

When a will is canceled or destroyed by any other person than the testator, the direction of the testator and the fact of such injury or destruction must be proved by two witnesses.5

57

54 Snyder, 8,906; Wilson, 6,816. 55 Snyder, 8,907; Wilson, 6,817. 56 Snyder, 8,908; Wilson, 6,818; California, 1,292 (Kerr), identical. As to revocation of wills under this

section; see Clark v. Ransom, 50 Cal. 595; Lones v. Lones, 108 Cal. 688, 41 Pac. 771; Estate of Comassi, 107 Cal. 1, 40 Pac. 15.

57 Snyder, 8,909; Wilson, 6,819.

Sec. 641. Effect of partial erasure.

A revocation by obliteration on the face of the will may be partial or total, and is complete if the material part is so obliterated as to show an intention to revoke; but where, in order to effect a new disposition, the testator attempts to revoke a provision of the will by altering or obliterating it on the face thereof, such revocation is not valid unless the new disposition is legally effected.58

Sec. 642. Revocation of will in duplicate.

The revocation of a will executed in duplicate, may be made by revoking one of the duplicates."

Sec. 643. Revocation of subsequent will-Effect of.

A prior will is not revoked by a subsequent will, unless the latter contains an express revocation, or provisions wholly inconsistent with the terms of the former will; but in other cases the prior will remains effectual so far as consistent with the provisions of the subsequent will.0

Sec. 644. Effect of subsequent will.

If, after making a will, the testator duly makes and executes a subsequent will, the destruction, canceling or revocation of the latter does not revive the former, unless it appears by the terms of such revocation that it was his intention to remove the former will, or unless after such destruction, canceling or revocation, he republishes the prior will."1

Sec. 645. Marriage of and issue after will made.

If, after having made a will, the testator marries and has issue of such marriage, born either in his lifetime or after his death, and the wife or issue survive him, the will is revoked, unless provision has been made for such issue by some settlement, or unless such issue are provided for in

58 Snyder, 8,910; Wilson, 6,820. 59 Snyder, 8,911; Wilson, 6,821.

60 Snyder, 8,912; Wilson, 6,822. 61 Snyder, 8,913; Wilson, 6,823.

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 such revocation can be received. If, after making a 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.62

Sec. 646. Marriage of woman revokes will.

A will executed by an unmarried woman is revoked by a subsequent marriage, and is not revived by the death of her husband.63

Sec. 647. Sale of devised property-Effect of.

An agreement made by a testator, for the sale or transfer of property disposed of by will previously made, does not revoke such disposal; but the property passes by the will, subject to the same remedies on the testator's agreement, for a specific performance or otherwise, against the devisees or legatees, as might be had against the testator's successors, if the same had passed by succession.64

Sec. 648. Incumbrance not a revocation.

A charge or incumbrance upon any estate, for the purpose of securing the payment of money or the performance of any covenant or agreement, is not a revocation of any will relating to the same estate which was previously executed, but the devise and legacies therein contained must pass subject to such charge or incumbrance.65

62 Snyder, 8,914; Act of March 27, 1909; California, 1,298 and 1,299 (Kerr), similar. Upon this subject, see Estate of Comassi, 107 Cal. 1, 40 Pac. 15; Corker v. Corker, 87 Cal. 643, 25 Pac. 922.

63 Snyder, 8,915; Wilson, 6,825; California, 1,300 (Kerr), similar. 64 Snyder, 8,916; Wilson, 6,826. 65 Snyder, 8,917; Wilson, 6,827.

Sec. 649. Partial disposal after will.

A conveyance, settlement, or other act of a testator, by which his interest in a thing previously disposed of by his will is altered, but not wholly divested, is not a revocation; but the will passes the property which would otherwise devolve by succession.66

Sec. 650. When such act revokes a will.

If the instrument by which an alteration is made in the testator's interest in a thing previously disposed of by his will, expresses his intent that it shall be a revocation, or if it contains provisions wholly inconsistent with the terms and nature of the testamentary disposition, it operates as a revocation thereof, unless such inconsistent provisions depend on a condition or contingency, by reason of which they do not take effect.67

Sec. 651. Codicils.

The revocation of a will revokes all its codicils." 68

Sec. 652. Succession supplements will, when.

Whenever a testator has a child born after the making of his will, either in his lifetime or after his death, and dies leaving such child unprovided for by any settlement, and neither provided for nor in any way mentioned in his will, the child succeeds to the same portion of the testator's real and personal property that he would have succeeded to if the testator had died intestate:

1. When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator as if he had died intestate and succeeds thereto as provided in the preceding paragraph.

66 Synder, 8,918; Wilson, 6,828. 67 Snyder, 8,919; Wilson, 6,829.

68 Snyder, 8,920; Wilson, 6,830

2. When any share of the estate of a testator is assigned to a child born after the making of a will, or to a child, or the issue of a child, omitted in a will as hereinbefore mentioned, the same must first be taken from the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken from all the devisees, or legatees, in proportion to the value they may respectively receive under the will, unless the obvious intention of the testator in relation to some specific devise or bequest or other provision in the will would thereby be defeated; in such case, such specific devise, legacy or provision may be exempted from such apportionment, and a different apportionment, consistent with the intention of the testator, may be adopted. 3. If such children, or their descendants, so unprovided for, had an equal proportion of the testator's estate bestowed on them in the testator's lifetime, by way of advancement, they take nothing in virtue of the provisions of the three preceding subdivisions.

4. Every devise of land in any will conveys all the estate of their devisor therein, which he could lawfully devise, unless it clearly appears by the will that he intended to convey a less estate.9

Sec. 653. Devisee's descendants take property.

When any estate is devised to any child, or other relation of the testator, and the devisee dies before the testator, leaving lineal descendants, such descendants take the estate so given by the will in the same manner as the devisee would have done had he survived the testator.70

69 Snyder, 8,921; Wilson, 6,831; California, 1,306, 1,307, 1,308, 1,309 and 1,311 (Kerr), similar; see, also, Smith v. Olstead, 88 Cal. 582, 26 Pac. 521; Estate of Smith, 145 Cal. 118. 78 Pac. 369; Estate of Salmon, 107 Cal. 614, 40 Pac. 1,030; Estate

of Ross, 140 Cal. 282, 73 Pac. 976; Estate of Stevens, 83 Cal. 322, 23 Pac. 379; Rhoton v. Blevin, 99 Cal. 645; 34 Pac. 513; Payne v. Payne, 18 Cal. 292; Estate of Barton, 86 Cal. 441, 25 Pac. 15.

70 Snyder, 8,922; Wilson, 6,832.