In Re Estate of Moro , 183 Cal. 29 ( 1920 )

This is an appeal from an order admitting a purported will to probate as the will of deceased, and denying the petition of appellant for letters of administration. The sole contention of appellant is that the purported will was not executed in the manner required by law.

The only alleged defect in the matter of execution is that the signatures of the two attesting witnesses are not "at the end of the will" as required by subdivision 4, section 1276 of the Civil Code. The purported will was typewritten on three separate sheets of paper approximately eight and one-half inches wide by thirteen inches long, which, with a cover sheet, indorsed as the will of deceased, were fastened by eyelets at the top. The typewriting commences a little over two inches from the top of the first sheet, consumes the entire page, continues on the second sheet, commencing a little over two inches from the top, and ends a little over three and one-half inches from the top of the second sheet, with "In witness whereof I have hereunto set my hand and seal this 25th day of June, 1917." The signature of the deceased was placed immediately after this on a line left for that purpose. There are no other signatures on the page, there being a blank space of about eight and one-half inches to the bottom thereof. On the third sheet or page the typewritten attestation clause commences about two inches from the top, occupying about three inches, and the signatures of the attesting witnesses are written directly beneath the attestation clause, on lines provided for that purpose, with their respective places of residence stated in typewriting. The third sheet is not numbered at the bottom, the others being numbered at the bottom respectively "1" and "2." The evidence at the hearing was such that there is no pretense that the instrument was not executed and attested in the precise form and order of sheets in which it was filed for probate. The attestation clause and signatures of witnesses follow the signature of the testator, which was properly appended immediately after the last sentence of the will. Looking at the instrument as a whole, it has every appearance of careful preparation and genuineness, and of being in exactly the condition in which it was at the time the various signatures were appended.

The whole claim of appellant is that because of the blank space between the signature of the testator and the commencement of the attestation clause, and the fact that such attestation clause and the signatures of the witnesses are on the succeeding sheet or page instead of on the sheet or page on which appears the testator's signature, the two witnesses did not sign "at the end of the will."

[1] It must be conceded, of course, that substantial compliance with the requirements of section 1276 of the Civil Code is essential to the validity of any will other than a holographic or nuncupative will. That section requires in subdivision 1 that "it must be subscribed at the end thereof by the testator himself, or some person in his presence and by his direction must subscribe his name thereto," and in subdivision 4 that "there must be two attesting witnesses, each of whom must sign the same as a witness, at the end of the will, at the testator's request and in his presence." [2] Whether there has been substantial compliance with this requirement as to the place of signature of the witnesses is a question that necessarily must be determined solely upon an inspection of the paper itself, assuming, as we must, in view of the circumstances, that the document when signed by the witnesses was in the same condition as when filed for probate. If the signatures are not in fact "at the end of the will" within the meaning of subdivision 4 of section 1276 of the Civil Code, that is an end of the matter, and it must be held that the will was not executed in the manner prescribed by law.

[3] We think, in view of the appearance of the document itself, that in the determination of this question the mere fact that the attestation clause and signatures of witnesses are on the sheet or page following that on which the testator appended his signature is altogether immaterial. As said in theMatter of Field, 204 N.Y. 448, 454, [Ann. Cas. 1913C, 842, 39 L. R. A. (N. S.) 1060, 97 N.E. 881, 883], "there is no statute forbidding the use of separate sheets or directing how they shall be joined together." The instrument filed, consisting of the three, sheets fastened together as already described, must be regarded as a completed whole, and so regarded each part, down to and including the signatures of the witnesses, follows a previous part naturally and in proper order, with the signatures of the witnesses and their places of residence the very last words of the instrument. The place of such signatures bears the required relation to the conclusion of the will proper, and obviously they were there placed for the sole purpose of legal attestation. If the words of the will itself with the signature of the testator had reached to the very bottom of the second sheet or page, no one could claim with any show of reason whatever that the fact that the attestation clause and signatures followed on another sheet or page instead of on the second sheet or page in any degree affected the question of sufficiency of execution. The claim of appellant that the signatures of the witnesses are not "at the end of the will" is necessarily based on the fact of the blank space on the second sheet or page following the testator's signature, a space considerably more than sufficient in size to have permitted the insertion therein of the attestation clause and signatures of witnesses.

What is meant by "the end of the will" with reference to the place of signature of testator and witnesses is a question that has received some consideration at the hands of the courts of New York, from which our statute was taken, as well as from this court, but in our opinion no case cited goes to the extent of warranting the rejection of the will here involved on the theory that there was not a substantial compliance with the requirement that the witnesses sign "at the end of the will." It is settled by the decisions that in view of the requirement no portion of the writing constituting the will proper may follow the signatures. This, of course, is clear. So where the purported signatures, whether of testator or witnesses, have been found in places preceding the end of the writing, the will has been rejected as not executed in accord with the imperative demand of the statute. Obviously, the end of the will cannot be at the beginning or in the middle or anywhere else except after the last provision of the instrument itself. The claim of appellant is that to be "at the end of the will," the signature of the testator must immediately follow the close of the will, without any considerable intervening blank space, and that the signatures of the witnesses, or at least the commencement of the attestation clause, must immediately follow the signature of the testator, without any considerable, intervening blank space. In this behalf reliance is placed on certain expressions in the court" opinion in Estate of Seaman, 146 Cal. 455, [106 Am. St. Rep. 53, 2 Ann. Cas. 726, 80 P. 700], where the purporped signatures, both of testator and witnesses, were on the back of a folded will, under the printed words of indorsement, "The last will and testament of" under which the name "Henry Seaman" had been written, and a printed form for date of filing, certainly not a natural or proper place for them, or a place bearing any proper relation to the concluding portion of the provisions of the will. While these signatures were subsequent in place to every provision of the will, it was held that the signature of the testator was not at the end of the will within the meaning of the statutory requirement, and that the end of the will "is not the foot or physical end of the sheet of paper upon which the will is written, but is the physical termination of the testamentary provisions which constitute the will." Discussing the requirement as to the testator's signature, "the court" opinion said: "The requirement that the name shall be subscribed 'at' the end of the will is not satisfied by having that name written at any place 'after' the termination of the written matter, irrespective of the relation which suck placebears to the concluding portion of the will. This provision does not, however, of necessity require that it shall be in immediate juxtaposition with the concluding words of the instrument, but that it shall be so near thereto as to afford areasonable inference that the testator thereby intended toindicate an authentication of the instrument as a completedexpression of his testamentary purposes." (The italics are ours.) The court went on to say that the signature must in fact be placed in such proximity to the testamentary provisions as to constitute a substantial compliance with the statute, and that while a slight space, a single line "or even more," might be left blank, yet to leave blank an. "entire page" would indicate a disregard of the statute which should prevent admission of the will to probate. In his concurring opinion Chief Justice Beatty said: "The true test to determine whether a decedent has subscribed his name at the end of the will is to take the document as it left his hand, and then, disregarding the signatures of the witnesses [which were in the same place as the testator's], and all evidence aliunde, to see whether it is apparent that his name was placed where it appears for the purpose of authentication." In another concurring opinion by the writer of this opinion, concurred in by Justice Shaw, the test of Chief Justice Beatty was accepted as correct, with the further statement that the signature must be after the termination of the testamentary provisions, and that where so placed "the mere extent of space between such termination and the subscription ought not to affect the question as to whether the statute has been complied with, if the document on its face, disregarding the signatures of the witnesses and all evidence aliunde, fairly indicates that the name was so placed by the testator as a subscription and for the purpose of execution," and that "the extent of space is, of course, material upon the question as to what the document does indicate upon its face." It will be seen that the gist of these opinions is that as to the testator's signature it is not enough that the signature be in any place after the termination of the will proper, "irrespective of the relation which such place bears to the concluding portion of the will" (it being in that case on the back of the folded will and under the words of indorsement of the nature and character of the instrument), and that while it is not required that it shall be in immediate juxtaposition with the concluding words of the will, "it shall be so near thereto as to afford a reasonable inference that the testator thereby intended to indicate an authentication of the instrument as a completed expression of his testamentary purposes." This was the express test prescribed by "the court" opinion as regards the testator's signature, and it may here be assumed, as suggested by the court, that the intervention of an "entire" blank page between the concluding portion of the will and the signature would require the rejection of the will as showing a material disregard of the provisions of the statute, for the reason that the instrument would not then on its face warrant the required inference. With relation to the signatures of the witnesses the same test would require that they be placed in such a position with relation to the concluding words of the will and so near thereto, and, of course, following the same, as to warrant a reasonable inference that they were placed where they appear solely for the purpose of attesting the execution of the will. If so placed, they are practically and substantially "at the end of the will" within the meaning of the statutory requirement. [4] We consider this to be practically the ruling in Estate of Seaman, supra, and it commends itself to us as correct. In this case the inference to that effect arising upon an inspection of the instrument is irresistible, and we are satisfied that in the respect suggested there was a substantial compliance with the law in the matter of the execution of the will.

We think the distinction between the case at bar and the various cases relied on by learned counsel for appellant is so obvious as to render consideration of those cases unnecessary here.

The order appealed from is affirmed.

Shaw, J., Wilbur, J., Olney, J., and Lawlor, J., concurred.