78 Cal. 477 | Cal. | 1889
— Lewis Sober executed before two witnesses, in the form prescribed by statute, a will which was in the handwriting of another. Subsequently he attached to said will the following codicil:—
“Owing to the conduct of my son Adolph toward my wife and myself since this will was made, I hereby affirm the foregoing will, except in the ninth article of bequests, where Adolph is included with my wife and other children, which bequest to Adolph I hereby revoke.
“Witness my hand this twenty-ninth day of April, 1886.
“ Lewis Sohek.”
Underneath were the words: “Witness, George Penlington, 123 O’Farrell Street.” All except these latter words is in the handwriting of the testator. The court below admitted the will to probate, but refused to admit the codicil. Two points are made by the respondent in support of the action of the court with reference to the codicil.
1. It is argued that the fact that the codicil was attested by one witness shows that it was not the intention. of the testator to make an olographic codicil; that it must be presumed that he intended to make an attested codicil, and left the execution incomplete. We see no force in the argument. It will be observed that there is no attestation clause, such as is usual in attested wills and codicils, no statement that the testator signed the will in the presence of the witness, and declared, at the time of signing, that the instrument was his will. If there had been such a clause, signed by only one witness, or unsigned by anybody, there might be more
2. It is contended that an attested will cannot be revoked by an olographic codicil. The position of the respondent is based upon the fact that the olographic document refers to the other. The argument is, that the olographic codicil cannot be understood without referring to the attested will; that the latter is in contemplation of law "a part ” of the former, and that therefore it
A similar objection was at one time made to references in attested wills to documents which were not attested. Wills have always been required to be executed with formalities of some kind or other; and it was argued that documents which were not executed with these formalities could not be referred to. But considerations of practical convenience prevailed over technical reasoning. And it became well settled that an attested will could refer to documents which were not attested. (See Newton v. Seaman’s Friend Society, 130 Mass. 91; 39 Am. Rep. 433; Baker’s Appeal, 107 Pa. St. 381; Brown v. v. Clark, 77 N. Y. 377; Fickle v. Snep, 97 Ind. 291; 49 Am. Rep. 449; Fessler v. Simpson, 58 Ind. 87; Gerrish v. Gerrish, 8 Or. 351; 34 Am. Rep. 585; and see Estate of Shillaber, 74 Cal. 144.) Now, if an attested will can refer to a document which is not attested, we see no good reason why an olographic will may not refer to a document which is not in the handwriting of the testator. The only difference between an olographic and an attested will is in the form of the execution. The statute has prescribed two forms in which written wills may be executed. In each case the instrument must be signed by the testator. But the formality of witnesses is dispensed with if the instrument is all in the handwriting
The argument made for the respondent rests upon the proposition that a document referred to by a will or contract is in contemplation of law " a part” of the document making the reference. And if this be granted in the sense in which it is asserted, a very plausible argument can be built upon it. But as has been said in other connections, it is not true as a matter of physical fact that the two documents are one and the same. The law for some purposes—mainly of construction—regards one as a part of the other. But this fiction ought not to be extended to absurd or unjust consequences. (See City of Napa v. Easterby, 76 Cal. 222; Bull v. Coe, 77 Cal. 54.) And we think it should not be extended so as to cover the present case. The will which the statute requires to be attested by witnesses in the one case, and written by the testator in the other, is the document signed by him. The documents referred to are for the purpose of explaining the meaning of the will and aiding in its construction.
The conclusion Which we have reached is sustained by authority. The decision in Estate of Shillaber, 74 Cal. 144, does not quite cover the case. For although the language of the opinion sanctions the reference, the decision was that the document referred to could be rejected as unnecessary, and the will left to stand without it. But Estate of Skerrett, 67 Cal. 587, goes further than is required here. In that case the deceased in his
We therefore advise that the judgment and order' appealed from be reversed, with directions to admit the codicil to probate in connection with the will.
Belcher, C. C., and Foote, C., concurred.
For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed, with directions to admit the codicil to probate in connection with the will.