Estate of Martin

58 Cal. 530 | Cal. | 1881

The Court:

A paper was presented for probate as the last will and testament of the deceased, as olographic. It was written and signed by the hand of deceased, but bore no date, and was not witnessed. Probate was refused by the Court below.

The statute upon the subject is as follows (Civ. Code, § 1277):

“ An olographic will is one that is entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form.”

It is claimed that the dating of a will is a mere formal matter, not absolutely necessary. We do not think so. The Legislature has seen fit to require three things to concur, for the execution of an olographic will, viz., that it be written, dated, and signed by the hand of the testator. We are not at liberty to hold that the Legislature intended any one of these requirements to be of greater or less importance than the others. If we may omit one, why not either of the others ? “ It is subject to no other form.” It is subject to the form prescribed.

The paper is not aided by the declaration contained in it, “ of the age of sixty years.” It does not appear in the paper when he was of the age of sixty years. It may have been one day before his decease; it may have been ten years.

Judgment affirmed.