In re Estate of Dombrowski

Two papers, claimed to be, respectively, the will and the codicil thereto of Fannie Dombrowski, deceased, were filed in the superior court of Los Angeles County by E. B. Studer, who petitioned for letters of administration with the will annexed. Subsequently a petition for probate and'for letters testamentary was filed by Robert

Studer dismissed his petition, and a hearing was had on the contest to the petition of Lovett and Maple. The findings were in favor of the petitioners, and the court, on June 16, 1911, made its 'judgment and order admitting the alleged will and codicil to probate, and granting letters testamentary as prayed. The contestants appeal from such judgment and order, and from an order denying their motion for a new trial. There is also an appeal from an order made June 14, 1911, dismissing the contest, but the substantial questions involved are presented by the other appeals, and this one need not be separately considered.

The will was dated January 13, 1908, the codicil April 2, 1908. Upon these dates the decedent, Fannie Dombrowski, was a resident of Peoria, Illinois,'where all of the acts which, as respondents claim, constituted an execution of the papers as testamentary writings took place. Thereafter Mrs. Dombrowski moved to the county of Los Angeles, in this state. She was a resident of that county at the date of her death, March 31, 1911, and left considerable property in this state.

Except for a minor point, to be mentioned later, the due execution of the papers was and is the only question in controversy between the parties. It is conceded on all sides that this question must be decided by reference to the requirements of the laws of California (Civ. Code, secs. 1265, 1376).

The evidence shows that the manner of the attempted execution was substantially the same in the case of the will as of the codicil. It will suffice, therefore, to outline the facts surrounding the making of the will.

There were three subscribing witnesses, each of whom gave testimony by deposition. The document, which was in typewritten form, was declared by Mrs. Dombrowski to be her will, and she asked the three witnesses to sign as subscribing witnesses, which they did. Her own signature (if it was a signature) had been affixed, in the presence of the witnesses, as follows: She was, by reason of illness, unable at the time

her

Fannie Dombrowski.

mark

Mrs. Dombrowski made a cross (X) in the space left between her given name and her surname, and the three witnesses signed the attestation clause, and also signed their names under the words “witnesses to mark,” which had also been written by Mr. Maple. Mr. Maple did not, however, write his own name on the paper as witness or otherwise. There was testimony that the decedent requested the subscribing witnesses to sign as witnesses to her mark, as well as to become attesting witnesses to the will.

Section 1276 of the Civil Code provides, among other requisites to the execution of a written will, other than holographic, 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.” Section 1278 provides that “a person who subscribes the testator’s name, by his direction, must write his own name as a witness to the will. But a violation of this section does not affect the validity of the will.” Since the testimony shows beyond all question that the name of the testatrix was subscribed by Mr. Maple in her presence and at her direction, it would seem that the requirements of the sections quoted had been fully met.

But the appellants argue that the decedent did not intend to perform the testamentary act by having her name written by another person; that what she in fact undertook to do was to sign her name by mark, and that such signing was incomplete and ineffectual for want of compliance with the requirement of section 14 of the Civil Code, that where a subscription is by mark, the name of the person so signing is to be written near the mark, by a person “who writes his own name as a witness.” Here, as has been stated, the person (Maple), who wrote the name of Mrs. Dombrowski, did not write his own name as witness. While, accordingly, the writing of the testatrix’s name by Maple would have been

The argument thus advanced rests upon rather refined and technical reasoning. The testatrix unquestionably intended to execute a will, and performed certain acts in order to carry out this intent. She did everything necessary, under the statute, to a valid execution. Is her act to be overthrown because, in addition, she tried to do something more? All that was done—the direction to Maple to write her name, his writing of it, the making of a mark—-taken together, formed a single transaction, every part of which was influenced by the one intent of executing a will. To say that the decedent intended to sign by mark, rather than under section 1276, is to lose sight of the real nature of her acts. What she intended was to execute a will. No doubt she thought that all of the acts performed were necessary, or at least proper, parts of a valid execution. But there is no good ground for saying that she intended that one of them, rather than another, should accomplish the desired end. Her intent was to carry out and authenticate her testamentary purpose by means of all these acts. The essential facts are that she did everything which she designed to do in executing her will, and that what she did included the formalities required by the statute for such execution. This being so, the validity of that which was rightly done is not affected by the circumstance that she may have entertained and acted upon the belief that something more was needed.

The cases cited by appellants are not in conflict with these views. The one which comes nearest to supporting their position is Main v. Ryder, 84 Pa. St. 217 . There Daniel Miner, the maker of the alleged will, directed one Thorpe to write his name, which was done in the manner here employed; that is to say, by leaving a space between the words “Daniel” and “Miner,” and writing the words “his” and

No doubt a subscription or signing of any kind will not constitute a valid execution of a will unless made with the intention, on the part of the testator, of finally and completely authenticating the will. The principle is well applied in such cases as Everhart v. Everhart, 34 Fed. 82 , where the alleged testator attempted to sign a will, but succeeded only in making a small mark or scratch, which apparently, he did not intend as a substitute for a complete signature, or Plate’s Estate, 148 Pa. St. 55 , [ 33 Am. St. Rep. 805 , 23 Atl. 1038 ], where the decedent, undertaking to sign his name, stopped after making one stroke, saying “I can’t sign it now,” or Waller v. Waller, 1 Gratt. (Va.), 454, [ 42 Am. Dec. 564 ], where the name of the alleged testator was written by him in the body of the (holographic) will, but there was nothing written in a blank evidently left at the bottom for signature. But none of these cases, nor any other cited by appellants, lays down a rule that would justify the holding that the will here in question was not properly executed.

So far as authority in this state goes, the decisions, although made in cases not exactly like the one before us, are distinctly favorable to the position of the respondents. In Estate of Toomes, 54 Cal. 509 , [ 35 Am. Rep. 83 ], the signature was similar to that here made, the testatrix making, her mark. The person who wrote her name signed as a witness to the will, but not otherwise. This was held to be

We have assumed, in the foregoing discussion, that the undisputed evidence shows, as appellants contend, that the decedent contemplated making her mark when she directed the writing of her name, and that she did not intend that execution should be complete until all of the acts—the writing of her name by Maple, the making of a mark by herself, and the witnessing of her mark by the three who did witness it—should be accomplished. We have also assumed that the provision of section 14, requiring one who writes the name of a person signing by mark to write his own name, is applicable to the execution of wills. Both points are disputed by the respondents, but we think it unnecessary to express an opinion upon either. We prefer to rest our decision on the broad proposition that there is a valid execution where a person undertaking to make a will has done certain acts with the intention of thereby executing his will, leaving undone nothing which he undertook to do to carry out that intention, and the acts done include everything necessary, under our statutes, to the execution of a will.

The appellants make the further point that the court was without jurisdiction to hear the petition for probate, because the petitioners had failed to make proof of mailing of notice of time appointed for probate to three persons named as co-executors of the petitioners and not joining in the petition

The judgment and the orders appealed from are affirmed.

Angellotti, J., and Shaw, J., concurred.