157 P. 242 | Cal. | 1916
Lead Opinion
A paper was admitted to probate as the last will of Jasper Dutcher. Thereafter certain heirs petitioned for revocation of the probate. They appeal from a judgment denying the petition. There is also an attempted appeal from an order denying a motion for a new trial, but such order was no longer appealable at the time the appeal was sought to be taken. (Code Civ. Proc., sec. 963, Amd. 1915, [Stats. 1915, p. 209].)
The contest was based on various grounds. One of these, and the only one here urged, is that the alleged will was not "subscribed at the end thereof by the testator." (Civ. Code, sec. 1276) It appears that the document was written upon a single sheet of paper. It begins with the words "I, Jasper Dutcher, do make and publish this my last will." The body of the writing covers about three-fourths of the page. The signature of the testator, "J. Dutcher," appears halfway on the page, from right to left, about one and one-half inches below the last line of the text of the will. On the left of the page, about three-quarters of an inch below said last line, is the word "Witness." This is closely followed by the signatures of the witnesses, O.P. Kinnie and Calvin Dutcher, one over the other. These signatures are higher on the page than the testator's name, and Calvin Dutcher's writing is spread out so that his surname covers a space directly above the entire subscription of the testator.
It is argued by the appellants that the paper, on its face, indicates that the decedent signed as a witness, rather than as testator. The evidence shows without conflict that the testator signed first, and that Kinnie and Calvin Dutcher then signed as witnesses. The statute does not require that the testator's signature shall occupy any specific place with reference to the signatures of the witnesses. Section 1276 makes the same provision for the location of both classes of signatures. The testator must subscribe the will "at the end thereof," and the witnesses must "sign" . . . "at the end of the will." It cannot be doubted that the name of "J. Dutcher," written as it was a short distance below the body of the will, was subscribed "at the end thereof" (Estate of *490 Blake,
We may add that we think the will, as it stood when offered for probate, and without regard to the order in which the three names were written, shows plainly that J. Dutcher signed as testator, and not as witness. It is quite clear that the two names, beginning at the left under the end of the word "witness," are the names of attesting witnesses, and that the third name, beginning far to the right, is that of the person executing the will. Furthermore, the last-mentioned name corresponds to that of the person who, in the opening clause, is declared to be the testator. The appellants' contention really rests on the entirely accidental circumstance that Calvin Dutcher's signature occupies a considerable space in length.
The appeal from the order denying a new trial is dismissed. The judgment is affirmed.
Concurrence Opinion
Hearing in Bank denied. *491