Lynch v. Bell

Daniel W. Lynch died March 17, 1944, leaving a witnessed will dated May, 1940, which was offered for probate. He was unmarried and was survived by a mother, Mary Lynch, six brothers and two sisters. By the terms of his will he devised and bequeathed his entire estate in equal undivided shares to four of his brothers, his mother Mary (erroneously described in the will as a “sister”), and a friend, Agnes G. Smith. The will named Agnes G. Smith (now Agnes G. Bell) as executrix, and she petitioned for the probate of the will. The mother and four of the brothers, two of whom were named as beneficiaries in the will, filed a contest to the will on three grounds, the first being that the will was not executed in conformity with the requirements of the law of this state. After hearing the evidence the probate court so found, and denied the petition for probate. Agnes G. Bell

Section 1276 of the Civil Code as it stood prior to the adoption of the Probate Code in 1931 embodied four subdivisions. By the first it was provided that a witnessed will “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”; subdivision 2 provided: “The subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them to have been made by him or by his authority”; and subdivision 3 provided: “The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will. ...” The construction placed by the courts upon the foregoing provisions was that if neither the subscription nor the acknowledgment was made before two witnesses, both present at the same time, it was not executed with the formality required by section 1276 of the Civil Code. (Estate of Lawrence, 196 Cal. 321 [ 237 P. 738 ].) In so holding the court in that case said: “It therefore appears that neither the subeription nor the acknowledgment of the decedent took place before two witnesses present at the same time. The precise question was presented in Estate of Emart, 175 Cal. 238 , 244 [L.R.A. 1917F, 866, 165 P. 707 ], where this court construed the language of section 1276 of the Civil Code, reviewed the history of the legislation on the subject, and said: ‘From the language of our statute and this review of its history, we regard the conclusion as unescapable that our law requires the subscription or the acknowledgment to be before the two witnesses present at the same time. ’

“The appellant contends that in Estate of Dow, 181 Cal. 106 [ 183 P. 794 ], this court, in the opinion on rehearing, so far discredited the decision in Estate of Emart, supra, as to render the point involved herein an open one. Such was not the case. In Estate of Dow, supra, the will was subscribed and acknowledged in the presence of both witnesses but the witnesses did not sign the document in the presence of each other. It was held that, under the statute, the witnesses need not sign in the presence of each other. The distinction is pointed out by the court in the opinion on rehearing in that case.

‘ ‘ On the authority of Estate of Emart, supra, the judgment is affirmed.”

Here the two witnesses to the will were Miss Dorothy Kelly and J. W. Welch, and their testimony as to the circumstances attending the signing of the will is conflicting. The testimony given by Miss Kelly affirmatively shows that neither the subscription nor the acknowledgment of the decedent was made in the presence of both witnesses, present at the same time; and since the probate court accepted her testimony as true, it must be so considered for all the purposes of this appeal.

The following are among the facts established thereby: The decedent was a member of the firm of Lynch & Sons, with offices on upper Market Street in San Francisco, and Miss Kelly had been in his employ as secretary for upwards of five years. Welch was an insurance salesman and transacted considerable business with the decedent, He called to see the

Nor does the fact that Miss Kelly was present in the room at the time that the decedent and Welch signed the will alter the legal aspect of the case, for it is well settled that the phrase “in the presence of” as used in the law of wills means conscious presence and not merely the actual physical presence where the party has no realization of what is going on.

And so in this state it has been held that both witnesses must not only be actually present when the subscription is made or the testator acknowledges it to have been made by him or by his authority, but it must be “unmistakably indicated to the persons signing as witnesses by the testator’s conduct and actions” that it is his will, although no particular verbal formula need be followed. (Estate of Silva, 169 Cal. 116 [ 145 P. 1015 ] ; Estate of Cullberg, 169 Cal. 365 [ 146 P. 888 ]; Estate of Johnson, 100 Cal.App. 676 [ 280 P. 987 ].) In other words, the circumstances attending the transaction must show that the decedent must have intended to have the witnesses know that the writing was his will. (Estate of Cullberg, supra; 26 Cal.Jur. 781.) In Estate of Norswing, 47 Cal.App.2d 730 [ 118 P.2d 858 ], one of the attesting witnesses testified that he did not know that the instrument he was signing was intended as a will, in spite of the fact that it had the word “Will” written at the top of it, and the witness could have read the attestation clause. It was there held (p. 733) : “It is essential, however, that each of the witnesses shall understand that the testator was promulgating the document as his will. (Estate of Silva, supra; Estate of Johnson, 100 Cal.App. 676 [ 280 P. 987 ]) and that in that ease there was “no evidence of acts or conduct on the part of the decedent which required a finding that the nature of this instrument was unmistakably indicated to this witness. ’ ’

In the present case, although it appears that Miss Kelly was in the room when the document was signed by the decedent and Welch, she positively and unequivocally testified that she was wholly unaware of the nature of the transaction that was taking place between them; and that it was not indicated to her that the instrument was a will until after she had

Briefly, Welch’s testimony was that he brought the unsigned document to the decedent’s office and stated to him, “Here is your last will and testament ’ ’; that the decedent then signed the document in the presence of himself and Miss Kelly and said, “This is my last will and testament”; that thereupon he, Welch, and Miss Kelly signed as witnesses in the decedent’s presence and in' the presence of each other; and that he, Welch, then left the room. It is evident, however, that since Welch’s testimony was rejected by the probate court the most that can be said for it on appeal is that it merely raised a conflict in the evidence.

The remaining points consist of technical objections to matters of pleading and procedure. In this connection it is contended that the general allegation that the will was not executed by the decedent in the manner or form required by law for the execution of a will is a conclusion of law and that therefore such allegation and the general finding based thereon are insufficient to support the judgment; furthermore that it cannot be determined from the findings or the judgment upon what specific ground the will was denied probate. It appears from the record, however, that appellant expressly waived the right to file a demurrer to the contest and requested that the trial proceed without delay on the pleading as filed and appellant's answer thereto, which she had already filed; also that at no time during the trial did appellant complain of any insufficiency in the pleading. Moreover the record shows that at the trial all parties understood that the only contested issue before the probate court as to the validity of the will was the one hereinabove discussed, and all of the evidence was directed to that issue. Such being the state of the record, it is our opinion that the objections raised by appellant do not serve as grounds for reversal.

Appellant’s next contention is that the contest was tried on the merits; that it was not merely the hearing of the “preliminary proof”; that being a trial on the merits of the contest the burden of proof to establish the invalidity of the will rested on the respondents; that they offered no evidence, and that such being the case judgment should have been entered dismissing the contest. It is entirely immaterial, however, whether the proceeding before the probate court was

The judgment is affirmed.

Peters, P. J., and Ward, J., concurred.