In Re Estate of Francis, 217 P. 746

In Re Estate of Francis

217 P. 746 | Cal. | 1923

Lead Opinion

This is an appeal from an order denying probate to a holographic will. The order was based upon the fact that the first two figures of the date in the year "1919" were printed. [1] If the date had contained the last two figures only it would have been sufficient (Estate of Lakemeyer,135 Cal. 28 [87 Am. St. Rep. 96, 66 P. 961]; Estate ofChevallier, 159 Cal. 161 [113 P. 130]), but the printed figures were adopted by the testator as a part of his will, and although the printed figures were unnecessary to sufficiently date the will, they were a part of the date, and the will was consequently not entirely dated in the handwriting of the testator. The rule announced in Estate of Thorn,183 Cal. 512 [192 P. 19], is controlling The envelope containing the will has a date on its face in the handwriting of the testator as follows: "10/22/19," and it is urged that this is a part of the will and a sufficient *601 dating of the will. Assuming, without deciding, that the date on the envelope is a part of the will, the rule announced inEstate of Thorn, supra, nevertheless controls, for it was held in that case that although all essential portions of the document were in the handwriting of the testator, and the printed matter constituted a mere repetition of what was already written in the handwriting of the decedent, the testator having made the printed matter as well as the written matter a part of the will, the will for that reason is not entirely in his handwriting. [2.] Hence the fact that the testator twice dated the will would not constitute a holographic will where one date was not in the testator's handwriting.

Order affirmed.

Waste, J., Kerrigan, J., Lawlor, J., Lennon, J., and Seawell, J., concurred.

Concurrence Opinion

I concur solely because I must agree that this case is ruled by the decision in Estate of Thorn, and if a change is to be made in the rule as there announced it should be by legislative enactment.