36 Cal. 75 | Cal. | 1868
This is an appeal from the judgment of the Probate Court of Sierra County, refusing to admit to probate the following instrument, claimed to be the last will and testament of F. H. Wood, deceased, viz:
*80 “I wish five thousand dollars to go to John C. Cole, in the event of my dying intestate, and the balance of my property to be held by Robert C. Beatie, to be disposed of by him as his judgment may dictate.
H. F. WOOD.
“ San Francisco, Cal., February 5th, 1863.
“ Witness: S. H. Seymour, Wm. H. Ladd.”
The only question is, whether this is a will or not. The execution of it is satisfactorily proved, and found by the Probate Court.
After carefully considering the able argument of respondent’s counsel, we are satisfied that the instrument, upon its face, is testamentary in its character, and must be construed to-be a will. It clearly fills the definition of a will given by approved writers on"that branch of the law, viz: “the declaration of a man’s mind as to the manner in which he would have his property or estate disposed of after death.” (1 Jarman on Wills, 1. See, also, 1 Redf. on Wills, 5, Sec. 2.)
This instrument certainly declares the mind of the deceased as to the manner in which he would have his property disposed of, in case he should die after the execution of the instrument, without any other or further manifestation of his wishes. Suppose he had died within twenty-four hours after the execution of this instrument, without any change in his circumstances, or any other manifestation of his desires with respect to his property, could it be for a moment plausibly contended that the document thus executed would not express his mind and intentions as to what disposition should be made of his property? To so hold would be to assert that he drew up, signed, and called two persons to witness the execution of this instrument, in the mode prescribed by law, for no purpose whatever. He must have intended from the transaction to accomplish something. We are not authorized to suppose he designed to do a' void act. The instrument shows what disposition the deceased intended to make of his property, and this disposition was not to take effect till after his death. The only possible embarrassment
This instrument evidently was not drawn by an attorney. It was probably drawn by the party himself. It was very informal, and the legal term, “intestate,” was undoubtedly very loosely used, and manifestly without any very accurate appreciation, at the time, of its precise meaning; and this
The appellant asks us, in our judgment, to direct letter’s testamentary to issue to the petitioner. The prayer in the petition is in the alternative, that letters testamentary, or letters of administration with the will annexed, be issued to the petitioner. He is not named executor in the will, and only letters of administration with the will annexed would be proper. But the Court below, upon the view taken, did not have occasion to determine whether it was proper to confer this important trust upon the petitioner, and the record does not afford any data upon which we are authorized to determine this important question. It must, therefore, be left open for the further consideration of the Court below.
Judgment and order reversed, and the Probate Court directed to admit the will to probate, and to take such further proceedings as the exigencies of the case require.