50 P. 927 | Cal. | 1897
The only question presented here is as to which of certain two wills of decedent should be admitted to probate. Both are conceded to have been executed by the deceased in her lifetime. One is olographic, and is dated June 21, 1882. The other bears no date, but is witnessed, and was found by the court to have been executed in the summer of 1883, and was also found to have been the last will of the said Anna Tyler, and entitled to probate. It is not disputed by any of the contesting parties that the testatrix intended to give all her property to respondent. The sole contention is that the second will was not subscribed by the testatrix in the presence of the attesting witness or acknowledged by her to them to have been made by her; that she did not declare to them that it was her will; that she did not request the witness Berger (one of the attesting witnesses) to sign his name as a witness to the will—all of which requirements it is claimed are imperative to entitle the second will to probate: Citing Civ. Code, sec. 1276; In re Cartery's Estate, 56 Cal. 472; In re McCabe's Estate, 68 Cal. 519, 9 Pac. 554; In re Walker's Estate, 110 Cal. 387, 52 Am. St. Rep. 104, 30 L. R. A. 460, 42 Pac. 815. The attesting clause of the will reads as follows:
“In witness whereof I have hereunto set my hand and seal in the presence of John Heard and-, who I request to sign their names hereto as subscribing witnesses.
“[Signed] ANNA FOSTER. [Seal.]
“[Signed] 'JOHN HEARD.
“FRED B. BERGER.”
It appeared from the evidence, without conflict, that the signatures of the witnesses, Heard and Berger, were genuine, as was that of the testatrix; that Heard was a lawyer, and prepared the will, and was present at its execution, at the home of the testatrix; that Heard afterward died; that Berger signed his name at the home of the testatrix, and while she was in the room; that the only persons present were the testatrix and her then husband, now deceased, the two witnesses, and the devisee, respondent, then a child of eight years, who testified that she had no recollection of the circumstances attending the making of this second will. It was said by this court in Re Walker's Estate, 110 Cal. 387, 52 Am. St. Rep. 104, 30 L. R. A. 460, 42 Pac. 815: “When a will is proved, every exertion of the court is directed to giving effect
Looking, then, at the attestation alone, such as it was, there is nothing in it to show that, as to the witness Berger, the testatrix subscribed it in his presence, or acknowledged to him that she signed it; nothing to show that at the time of subscribing or acknowledging the will she declared the instrument to be her will; nothing to show that Berger signed the will at the testatrix’s request or in her presence. All these positive statutory requirements we are asked to make subordinate to the law of presumptions. It was said in Re Walker, supra: “The legislative mandates are supreme, and there is no right to make testamentary disposition except upon compliance with those mandates.” It seems to us perfectly obvious that the attestation is wanting in so many vital particulars that to allow it to pass as sufficient, by indulging presumptions, would be going to a greater extreme than has ever been done in any case we have found or which has been cited, and, furthermore, would practically nullify the statute. It is to b.e regretted that the sole surviving witness was unable to recall the facts of the attestation, as it is also to be regretted that the lawyer called in did not see to having a formal attestation written out and signed by the witnesses, setting forth the acts required by the statute to be done, in which latter case the law of presumptions might have been invoked to some purpose; but as the matter stands, we must hold that the will in question was not sufficiently attested or witnessed and declared, and no presumption of law can now be resorted to in order to supply the statutory requirements wherein the evidence fails. The judgment and order should be reversed.
We concur: Haynes, C..; Britt, 0.
For the reasons given in the foregoing opinion ■ the judgment and order are reversed.