121 Cal. 405 | Cal. | 1898
This is a contest of the will of Anna Tyler, deceased, instituted by certain of her heirs. The court her low held the will good, and the contestants appeal.
The appellants make no contention that the testatrix at the time the will was made was of unsound mind, or under undue-influence; or that she did not knowingly sign it; or that it does not clearly express her evident intentions as to the disposition of her property; or that the will is not properly attested; or that on its face it does not comply with all the statutory provisions touching the making of wills. The sole contention of appellants is that the execution of the will was not sufficiently proven. And as to this point appellants did not themselves introduce any evidence to show that the will was not duly executed; they rely entirely upon the asserted insufficiency of the evidence of respondent. Indeed, the appellants offered no evidence at all on any material issue in the contest; they rest solely upon the proposition that the respondent did not prove enough.
The closing part of the will is all that need be quoted here, and it is as follows:
*407 “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.”
The objections made by appellants to the sufficiency of the evidence are that it does not sufficiently show that the testatrix signed the will in the presence of the subscribing witnesses or acknowledged her signature in their presence; or that she declared to them that the instrument was her will; or that she requested the subscribing witness Berger to sign his name as a witness.
The evidence, and the facts proven, were substantially as follows: The signature of the testatrix was proven. The attesting witness Heard was dead, and his signature was proven. The other subscribing witness, Berger, did not live in the county; and if he had not been called as a witness at all proof of his signature to the will—together with proof of the signature of Heard and of the testatrix—would clearly have made a prima facie ease of its due execution. (Code Civ. Proc., sec. 1315.) But respondent (unfortunately, it seems) brought him from another county to testify at the trial; and it turned out that, although he remembered signing the will and swore to his signature, he had no definite recollection of certain things which occurred at the time he attested the will. He could not remember whether the testatrix actually signed the instrument or verbally acknowledged her signature to it in his presence, or whether she declared the document to be her will in the presence of the attesting witnesses, or whether she requested him to sign as an attesting witness. He did not testify, however, that these things were not done; nor was there any evidence to impeach the execution of the will, or to throw upon it the shadow of any kind of suspicion. Appellants contend that the will must fall merely because the memory of the witness failed; the court held that as one attesting witness was dead and the other unable to recollect, as above stated, and as there was no evidence tending in any way to invalidate the will, proof of the signatures of the testatrix and the attesting witnesses was, under the ch>
The witness Berger gave Ms testimony a dozen years after the . malting of the will; and as he went hurriedly from his business to be an attesting witness, and stayed only a short time at the pláee where the will was signed, it is not surprising that he had forgotten some of the things that happened on that occasion.. He had-not, however, forgotten all that occurred. He remembered that he was called as an attesting witness; that he went, to a room in a certain house; that there were present there the testatrix, the other attesting witness, Heard, Mr. Tyler, husband of the testatrix, and a little girl (the beneficiary in the will), then too young to remember what occurred; that the testatrix, whom he well knew, was in her usual health; that he heard part of the will read; that Heard and the witness (Berger) signed the will, as witnesses, and that when they did so the testatrix was there present; that witness then partook of" some refreshments at the invitation of the testatrix, and immediately afterward left; and that the testatrix and Heard were both there all the time that witness was present-—to all of which he testified. He testified, therefore, to, at least, some material things—particularly that the attesting witnesses signed the will, and that they both signed it in the presence of the testatrix and of each other. We state that he remembered and testified to these things merely because it brings the case more nearly within the facts of some of the cases cited below, where an attesting witness had recollected some of the occurrences attendant upon the making of - a will, but had forgotten others. Such facts strengthen the finding of a court that the will was duly executed.
It is our view, both upon reason and authority, that the finding of the trial court that the will was duly executed is beyond disturbance here. While the" code provides that certain things are necessary to the making of a valid will, it does not prescribe how those things shall be proven; it leaves that to tfie general rules of evidence. There is provision, it is true, that if the attesting witnesses are alive and present in the county they must, in- the event of a contest, be called. This is a very natural and just provision; for in such case the failure of the proponent
Authorities supporting the above conclusion are numerous.
In Beach on the Law of Wills, the author in paragraph 39 says: "On the death of the witnesses, or on the failure of their memory, the proof of the fact of execution begets the presumption that all the details of the statutory requirements were complied with, whether so stated in the attestation clause or not, unless the contrary he proven.”
In Jones on Evidence, volume 1, section 44, it is said as follows: “If a will purports to have been duly signed, attested, and witnessed, on proof of execution the court will presume, in the case of the death of the witnesses or in case they do not remember the facts connected with its execution, that the law was complied with; and the details of the statutory requirements will be presumed, whether it is so stated in the attestation clause or not, unless the contrary is proven.” Other text-books state the same rule.
There are innumerable judicial decisions to the same point. It is sufficient to cite the following: Burgoyne v. Showler, 1 Rob. Ecc. 10; In re Leach, 12 Jur. 381; Fatheree v. Lawrence, 33 Miss. 622, and cases there cited; Deupree v. Deupree, 45 Ga. 415; Ela v. Edwards, 16 Gray, 91; Eliot v. Eliot, 10 Allen, 357; Clarke v. Dunnavant, 10 Leigh, 13; Kirk v. Carr, 54 Pa. St. 285; McKee v. White, 50 Pa. St. 354. See, also, cases cited in the notes to the sections of the text-books above quoted.
As the question here involved is one of considerable importance, we will notice a few of the expressions by which the principle is declared in the cases above cited. In Burgoyne v. Showler, supra, it is said: “I think I should be establishing a very dangerous precedent if I were to pronounce against this will; I thinkthe principle on which Sir U. J. Eust has acted in these cases is
The authorities cited by appellants are not in point—unless it be that of Luper v. Werts, 19 Or. 122. In Estate of Walker, 110 Cal. 397, 52 Am. St. Rep. 104, the court was not dealing with the general question of the sufficiency of proof of the execution of a will; the facts there were undisputed, and the only question was whether or not one of the alleged attesting witnesses had subscribed his name to the document. The other cases cited do not deal with the question of the sufficiency of the proof of execution. In Luper v. Werts, supra, there are some expressions in the opinion of a majority of the court tending to support appellant’s contention. The case was decided by a divided court; and the decision could have well been placed upon the fact that the testimony of Peyser, one of the subscribing witnesses, showed affirmatively that the will had not been properly executed. The ease illustrates the danger of upsetting a will, even upon the adverse testimony of a subscribing witness, unless the attendant circumstances strengthen his testimony; for it seems to have been admitted there that, as said by Lord, J., in his dissenting opinion: “Peyser is an unwilling witness, of an unreliable character, whose testimony, as disclosed by the record, indicates a purpose to defeat the will.” The testimony of a witness who had solemnly subscribed to a will as an attesting witness, and afterward endeavored to overthrow it, should be closely scrutinized; and, no doubt, the court below in that case sustained the will because there were circumstances which caused it to disbelieve the testimony of Peyser. What was said in the
The judgment and orders appealed from are affirmed.
Van Fleet, J., Garoutte, J.. Temple, J., Beatty, C. J., and Harrison, J., concurred.