78 P. 340 | Cal. | 1904
This is an appeal from an order refusing to admit to probate an instrument purporting to be the holographic will of deceased.
The instrument was entirely in the handwriting of deceased, and bore date "May twenty-fifth, eighteen hundred and fifty-nine." It is not claimed that the deceased was not of sound mind, nor that the purported will was not his free act and deed. In the instrument the deceased made provision for his son Luke Fay, who was born in 1861; for his son John Fay, who was born about 1865; and for his daughter, Mary Montealegre, who was married to Carlos F. Montealegre in January, 1887, and died March 29, 1900. It is thus evident, from the testimony, that the instrument was not written in 1859, but at some time between the marriage of the daughter and her death. If we were to indulge in conjecture, we would say that the will was written May 25, 1889, the words "fifty-nine" being by mistake or carelessness inserted instead of the words "eighty-nine." There does not appear to be any explanation as to the discrepancy in the date which the instrument bears and the actual date or time when it was executed. No reason is suggested, and none suggests itself to us, as to any object the deceased could have in dating the instrument "eighteen hundred and fifty-nine." He had the right to make a holographic will, provided he complied with the statute in so doing. It is declared in the Civil Code (sec. 1277) that "a holographic will is one that is entirely written, dated, and signed by the hand of the testator himself." This is the same provision as in the Code Napoleon. The instrument in this case is a holographic will, unless we hold that the word "dated" in the above section means the actual and correct time when the instrument was written. The legislature has not used the words "truly dated" nor "correctly dated," *84
but the word "dated," which must be construed according to the approved usage of the language (Civ. Code, sec.
It is said in Bement Dougherty v. Trenton Locomotive etc.Co.,
In Underhill on Wills (sec. 181) it is said: "Where the date is given it may be contradicted by parol, though until that is done it will be presumed, in a case of holograph, that the will was executed upon the date which is stated in it."
The language of the Civil Code of Louisiana is the same in meaning as the section of our code in regard to holographic wills. It was held by the United States circuit court in Gaines
v. Lizardi, 3 Woods, 77, 9 Fed. Cas. 1042, that where the proof showed that a holographic will was written and signed by the testator, and bore date of some day in a designated month, but did not show of what particular day, that it was a sufficient compliance with the provisions of the code as to dating. The case involved the probate of a holographic will which had been lost or destroyed, but it illustrates the point in the case at bar. In case of a holographic will which has been lost or destroyed it might be impossible to prove the *86
day of the month, or even the month, in which it was executed, and yet the evidence might be clear and convincing that the will was entirely written, dated, and signed by the hand of the testator. Should the courts, in such cases, exclude the will from probate because the correct time at which it was written could not be proven? In Estate of Skerrett,
It is provided in the Civil Code (sec. 1326) that of two modes of interpreting a will, that is to be preferred which *87 will prevent a total intestacy. The supreme court of Louisiana adopted the above liberal rule in Heirs of McMichael v. Bankston, 24 La. Ann. 451, in which it was held that where two words in a holographic will were not in the handwriting of deceased, but did not change the meaning nor alter the dispositions made by the testator, the will would be upheld. When a man of sound mind and memory, by his own hand and signature, has plainly made a disposition of his property, the courts should carry out his intention if it can be done without violating the mandates of the law.
Respondent contends that his appeal was not taken within sixty days after "the rendition of the judgment," and hence the evidence cannot be considered on this appeal. The appeal was taken within sixty days after the entry of the order, and was within time. The section of the code in regard to rendition of judgments does not apply. (Code Civ. Proc., sec. 963, subd. 3; Inre Smith,
It follows that the order should be reversed.
Gray, C., concurred.
For the reasons given in the foregoing opinion the order appealed from is reversed.
Shaw, J., Angellotti, J., McFarland, J., Lorigan, J., Henshaw, J., Beatty, C.J.