Henderson v. Cutting

The deceased, Hannah L. Henderson, died in the county of San Joaquin, her place of residence, on the twenty-second day of October, 1922, of the age of about eighty-four years, leaving surviving her a son and a daughter, to wit: The appellant herein, Orrin S. Henderson, and a daughter, Helena (also called Lena) Cutting, wife of the respondent herein, and also leaving an estate, situated in said county, consisting' wholly of personal property, principally in the form of choses in action, of the value of $2,500. Also surviving the deceased were grandchildren (the number not made to appear in the record), issue of the marriage between the respondent herein and Lena Cutting, as stated, daughter of the deceased.

In the latter part of the month of November, 1922, about five or six weeks after the date of the death of the deceased, Mrs. Cutting, wife of the respondent, found, in a small tin box in the house of the Cuttings, the following instrument in writing:

“August 9 1922

“Stockton, Calif.

“My Dear Children.

“Frank and Lena.

“So the year’s pass, I am reminded Day by Day, that I may soon hear the welcome summons, ‘ Child come Home. ’ I do not want to leave work undone. I want to make a request regarding 'what money’s will be left, after I am gone and all expences paid.

“And Request that Frank Cutting have Charge of my affairs.

“I give to Frank Cutting $500 (five hundred) to Lena Cutting $500 (five hundred)

“What moneys shall be left together with interest, shall be given to my Dear Grand Daughter Lorraine Cutting.

“Good and Faithful.

“God Bless her.

“Lovingly,

“Hannah L. Henderson,”

“Dear Lena,

“Do not think it strange that I have changed my mind concerning my grand children. They are doing well for themselves. Today I am thinking of my Dear Son Orrin, so I ask you as a mother, to think of me as his mother, if you can, to send him a little gift from me say $50, or a $100 as you can He may need it, His years are passing.

“God Bless and keep you both

“From A Loving

“Mother.”

The above document was written on a single piece of paper, although physically divided into two parts. (The two parts, for convenience, will hereinafter be designated as the first and the second “paragraphs” or “writings.”) The first, which is dated and signed by the testatrix, but which makes no mention of her son, Orrin S. Henderson, the appellant herein, was written on the first page, the paper upon which it was written being folded so as to make it consist of four pages. The second paragraph or writing, which bears no date and which is signed, “From a Loving Mother,” was written on the fourth or last page of the paper.

On the tenth day of November, 1923, approximately a year from the time when found, said document was filed and presented by the respondent to the superior court in and for the county of San Joaquin upon a petition for the probate thereof as the holographic will and testament of the deceased. On December 3, 1923, the appellant filed and inaugurated a contest of the probate of said instrument upon the grounds: (1) That if, in fact, the deceased executed said instrument, she was, at the time of executing the same, “not of sound mind”; (2) that the execution of said instrument, “if the same was executed” by said Hannah L. Henderson at all, was executed through the undue influence of her daughter, said Helena Cutting, as follows: That the deceased had for a long period of time prior to the time of her death resided with her said daughter; that during all said time the deceased was both physically and mentally diseased, and by reason thereof required constant care and attention to the end that her wants should be administered properly or in a manner suitable to her weakened physical and mental condition; that she was during all said time so taken care oí by

The proponent answered the appellant’s grounds of opposition to the probate of said document as the will of the deceased, denying specifically all the averments of the petition, and alleging affirmatively that, at the time she executed the purported will, the deceased was mentally sound and possessed of testamentary capacity.

A jury was called and impaneled to try the contest, but, by order of the court, the proceeding involving the preliminary proof of the purported will was, over "objection by the contestant, conducted in the absence of the jury; the court stating that it would hear such proof and withhold making any order thereon, either admitting or refusing to admit the will to probate, until after the trial of the contest was had and determined by the jury. Thereupon the jury were excused pending the taking of testimony for the purpose just stated, and the respondent, Cutting, was called to the witness-stand, and testified that, as stated above, his wife, Helena Cutting, in the latter part of November, 1922, found the instrument offered for probate as the will of deceased in a small tin box belonging to the deceased, and kept by her at the home of the witness while the former resided there, and in which she preserved other private papers, including promissory notes held by her against other parties; that Mrs. Cutting maintained possession of the instrument until it was filed for probate on November 10, 1923; that witness was familiar with and knew the handwriting of the deceased; and that the instrument proposed for probate as her will was, including the date and signature, entirely in the handwriting of the deceased. Cutting further testified that deceased was of the age of about eighty-four years, and that her only heirs at law were his wife, Helena Cutting, and the appellant herein. The direct examination of Cutting was, by leave of the court, conducted by the attorneys for the

The contestant, Orrin S. Henderson, appeals from said order or judgment.

[1] That the document in question was written, dated, and signed by the deceased herself and is entirely in her own handwriting, is not questioned here. It is objected, however, that that portion of the decree finding and adjudging that “said document is a harmonious, homogeneous, holographic will, and constituted and constitutes one instrument,” involves a construction of the instrument wholly without warrant either from the language of the second paragraph thereof, standing alone, or from said language viewed in connection or together with that of the first paragraph of the instrument; that the two paragraphs, upon their face, disclose no necessary relation to each other, nor, howsoever viewed, are reasonably susceptible of such a construction. We agree with the trial court’s construction of the document as a whole as indicated by its findings and judgment.

But for the fact that dehors the document itself it was made to appear that one of the lawful heirs of the deceased was thereby pretermitted or not named therein, the first paragraph of the document, having been shown to have been written, dated, and signed by the deceased herself, constituted in all respects a perfectly valid holographic testa-" mentary disposal of her estate. And it will, of course, be conceded that, even though the first paragraph or writing be, pro tanto, invalid,.because of the pretermission therefrom of a lawful heir of the deceased (Code Civ. Proc., see. 1307), or even though wholly invalid, it is, nevertheless, perfectly clear therefrom that by said paragraph the deceased intended to make testamentary disposal of her estate. What, then, could the deceased have intended to accomplish by writing the second paragraph on the sheet of paper on which she had holographed her will, if, as appellant contends is true, she did not have in mind her will as so written and intend that the second writing should have relation to and probably have some important effect upon the will as she

The opinion in the very recent case of Estate of Spitzer, ante, p. 301 [ 237 Pac. 739 ], considered a situation which, in the general aspect thereof, is much like that presented here. Therein the court, speaking through Mr. Justice Seawell, held that the several writings offered for probate as the will of the deceased were of a testamentary character. Much of what is said by Justice Seawell in that ease is pertinent to the circumstances of this case. It is sufficient, however, to quote therefrom the following excerpt adopted into the opinion in that ease from Estate of Beffa, 54 Cal. App. 186 [ 201 Pac. 616 ],

“It is well settled in this country and in England, first, that in determining whether the instrument propounded as intended to be testamentary, reference will be had to the

So far as the present consideration is concerned, it is not important to inquire what particular thought or purpose was in her mind when she wrote the statement in the second writing to the effect that.she had changed her mind as to her testamentary plans regarding her grandchildren, or in what particular or particulars she had changed her mind; nor is it of consequence, in the determination of the present question, that the words with which the deceased expressed in the second writing her desire that her son should be given or receive something from her estate are of a precatory nature. ' It is sufficient to know that the deceased intended that both paragraphs were to be taken together as constituting her last will and testament.

The construction to which thus the document before us has been subjected rests upon reasons no less cogent or persuasive than those upon which this court, in cases hitherto decided, has sustained several separate documents as constituting together single holographic wills. (Estate of Skerrett, 67 Cal. 585 [ 8 Pac. 181 ] ; Estate of Merryfield, 167 Cal. 729 [ 141 Pac. 259 ].) Indeed, the ease here, as to the facts

In the Skerrett ease there were two separate writings, one of which was a copy of a deed of gift to the grantee therein named of certain real property, and written, dated and signed entirely in the handwriting of the deceased, and the other a letter addressed to said grantee, and entirely in the handwriting of the deceased. The original deed was executed and acknowledged in the presence of witnesses, but was never delivered, and was therefore ineffective as a grant of real property. The letter was not dated. A copy of the deed and the letter were found after the death of the deceased in an- envelope in a tin box belonging to him. The court held that, while neither document, taken alone, would constitute a holographic will—the copy of the deed because not containing testamentary words, and the letter because, although containing testamentary words and stating that deceased intended that the grantee named in the deed should receive as a devise the real property therein described, it was undated—the two, taken together, as the deceased undoubtedly intended they should be considered, formed a complete holographic will.

In the Merryfield - ease there were three separate writings on as many different sheets of paper. These sheets were found folded together in a locked drawer, and each entirely in the handwriting of the deceased. The language of each was testamentary in character, and all related to the same general subject matter and the same parties whom deceased clearly intended to make the beneficiaries of her estate. The first writing was neither dated nor signed, the second was signed by the deceased, but imperfectly dated, the third was dated and signed by the deceased. The one mentioned certain heirs to whom the deceased expressed the intention of giving nothing. The third sheet, in the order in which they were folded together, and as above given, omitted to mention said heirs, but was itself otherwise complete as a holographic will. All three papers were presented together for probate as constituting the will of deceased. The claim was urged, in a contest to the admission of the will to pro

[2] The subscription to the second paragraph, “Tour loving mother,” if a material consideration here, is a sufficient signature. (Ex parte Walker, 15 Quebec Probate Reports, also entitled “Rapport’s de Practique de Quebec,” 15; Estate of Kimmel, 278 Pa. 435 [ 31 A. L. R. 678 , 123 Atl. 405 ]; Wells v. Lewis, 190 Ky. 626 [ 228 S. W. 3 ]; Page on Wills, sec. 170.) But, in view of the conclusion that the two writings together constitute a holographic will, the contention that the subscription to said writing, “From your loving Mother,” is not such a signature as the law requires shall be subscribed to a will, is of no material importance, since the signature of the testatrix at the end of the first paragraph sufficiently measures up to the requirement as to the signatures to wills.

[3] Where a will has been signed by the testator, it is sufficient even though the signature is not in the place on the instrument where usually such a writing is signed, viz., at the end of the document. (Estate of McMahon, 174 Cal. 423 [L. R. A. 1917D, 778, 163 Pac. 669 ].) Of course, this statement is subject to the qualification that if the signature of the testator is not subscribed to the will&emdash;that is, if it is not at the end of the instrument, the usual place for the signature in such cases-&emdash;then it must so appear from the document itself that the signature was thus placed “with the intent that it should there serve "as a token of execution” as to afford “a positive and satisfactory inference” to that effect. (Estate of Manchester, 174 Cal. 417 [Ann. Cas. 1918B, 227, L. R. A. 1917D, 629, 163 Pac. 358 ]; Estate of Streeton, 183 Cal. 284 [ 191 Pac. 16 ].) That the instant case fully exemplifies the test thus stated is a proposition too obvious to require further- consideration.

[4] The contention that the action of the court in conducting the proceeding involving the matter of the admission of the will to probate in the absence of the jury was improper is opposed to the rule in that particular declared by our decisions. This court has a number of times held that

“When a will is contested before probate there are two separate and distinct proceedings pending before the court. One is the petition for the probate of the will; the other is the contest of the probate of the will. (Citing cases.) The petition for the probate of a will is distinctly a proceeding in rem. (Estate of Baker, 170 Cal. 578 , 585 [ 150 Pac. 989 ]; Estate of Allen, 176 Cal. 632 [ 169 Pac. 364 ].) . . . In the proceeding for the probate of the will, as distinguished from the proceedings upon the contest, the evidence and the issues of fact are solely for the consideration and determination of the court, even though a jury may have been demanded and impaneled for the trial of the issue upon the contest. . . . The contestants are not parties to this proceeding and have no right to appear therein, . . . but the trial court, having itself the right to cross examine the witnesses produced therein, may, in the exercise of its discretion, permit counsel for contestants so to do. . . . But when such permission is granted it is as a matter of grace and not in recognition of a right possessed by contestants.”

There is no merit to the contention that the decree appealed from is unsupported because there was a failure to prove that the deceased, at the time she executed the testament, was mentally sound or possessed of testamentary capacity ; nor is there any force in the further contention that the decree cannot stand because the court failed to find certain jurisdictional facts. [5] To the proposition first stated, a ready answer is found in the rule, elementary in our system of jurisprudence, that a testator is to be presumed to have been sane when making his will, and that, in the

[9] It is further contended that the judgment or order is wanting in essential support because of the failure of the court to make a certificate of the facts found and cause the same to be attached to the will, as provided in section 1317 of the Code of Civil Procedure. That section, it is clear, not only from its language but from its position in the code, was intended to and does apply exclusively to cases where there is a contest of the probate of the will. The section, which is under article II of chapter 2, and under the subhead “Contesting Probate of Wills,’’ reads:

“If the court is satisfied, upon the proof taken, or from the facts found by the jury, that the will was duly executed, and that the testator at the time of its execution was of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence, a certificate of the proof and the facts found, signed by the judge and attested by the seal of the court, must be attached to the will.” ,

[10] Here, as seen, there was no contest, and the judgment contains all the facts which are required to be set out therein where there is no contest. In such case, the legislature, it seems, regarded the findings, together with the presumptions favorable to the order or judgment which the law wisely indulges, as being sufficient.

Lastly, it is contended that the court transcended its authority or jurisdiction by appointing the legatee, Francis Cutting, as executor of the will. This contention is grounded upon the asserted fact that the will does not, eo nomine, nominate an executor; it being hence argued that it was the duty of the court to issue either to Orrin S. Henderson or to Mrs. Cutting, son and daughter of deceased and her only surviving heirs, letters of administration, with will annexed. (Secs. 1350a and 1365, Code Civ. Proc.; Estate of Crites, 155 Cal. 392 [ 101 Pac. 316 ], and cases therein named.) [11] As will be observed, the first of the two writings constituting the will of the deceased contains the following words: “And

There are no other points requiring notice herein.

The order or judgment appealed from is affirmed.

Lawlor, J., Richards, J., Shenk, J., Seawell, J., and Houser, J., pro tem., concurred.