Lane v. Walker , 110 Cal. 387 ( 1895 )

Garoutte, J., dissenting.

I dissent. I do not think a man’s testamentary disposition of his property should be defeated for the reasons here given. The argument requires a too technical analysis of terms and statutes in order to arrive at such a result. While the right to dispose of property by will is purely statutory, still it can hardly be said to be a mere matter of legislative grace, for it has become almost an inalienable right— made so by reason of its long practice and approval in all civilized nations. It is conceded that if the testator, Walker, had made a like mistake, and signed his name Warren, it would not have defeated the will; but it is now held that the witness Warren having made the mistake in signing his name Walker, the will is avoided. I have no idea that the legislature, in formulating the statute as to the character of the signatures, ever intended such results to follow; and I am satisfied it never intended to attach any different meaning to the two phrases, namely, “ sign his name as-a witness,” and “ subscribed by the testator”; or that the legislature ever intended to bar a man from being a witness to a will, who was unable to sign his name, any more than it intended to bar a man from making his will, who was likewise so unfortunate.

For the purposes of this statute, the person’s mark, properly witnessed, is his name; and any name that the party attaches to the will as a witness is his name. It is not for a contestant of the will to say to a witness: “ That is not your name”; and neither is it for the witness to appear upon the stand and say: “ That is not my name.” If we are to be so technical in this matter, the statute should have said “ true name.” The true names of witnesses are often unknown to the testator, and to say that a person could intentionally and corruptly sign a false name to a will as a witness, and thereby defeat it, is to go to great lengths. No case in the books has ever gone that far to my knowledge; still, that doctrine would seem to be declared by the main opinion of the court in the present case. A name signed by mistake of the witness is no different from one signed in fraud. The knave wrote the name as his name, and, for the purposes intended by the testator, it was his name. In the present case the attorney, as a witness, unintentionally wrote a name which was not his true name, but he intended the writing to be his name, and he made the writing for his name, and for the purposes intended by the testator; and, as to those purposes, it should be held to be his name. If, one hour previous to the signing of the will, he had concluded to change his name to G. G. Walker, and had so signed it, or, for the very purpose of concealing his true name, had signed the will “John Brown,” to my mind the will would be legally witnessed, and in the present case the same conclusion should be declared.