BOYDEN v. REIMANN (1935)

This case is before us on an appeal from a judgment decreeing that a document entirely written and signed in the handwriting of testatrix, except for the date, and subscribed by two witnesses immediately under the signature of the testatrix, there being no attestation clause, was the last will and testament of testatrix, and that the same be admitted to probate.

The signatures of testatrix and the subscribing witnesses were proved genuine without controversy. Such proof made out a prima facie case, and, in the absence of evidence showing that the requirements of section 50 of the Probate Code had not been complied with, is a sufficient showing for admission of the will to probate. In re Estate of Tyler, 121 Cal. 405, 53 P. 928; In re Estate of Kent, 161 Cal. 142, 118 P. 523; German Evangelical Bethel Church v. Reith, 327 Mo. 1098, 39 S.W.(2d) 1057, 76 A. L. R. 604; In re Cottrell's Will, 95 N. Y. 329.

In Re Estate of Tyler, supra, 121 Cal. 405, page 409, 53 P. 928, 929, the court said: “There is no statutory declaration, and no principle of law, to the effect that a will executed in due form shall go for naught unless an attesting witness, after the lapse of many years, shall continue to recollect everything material that occurred at the time he subscribed his name to it. Such a rule would make the validity of the will dependent, not upon the disposing mind of the testator, nor his freedom from duress, undue influence, or fraud, nor upon his clear expression of his intention in the body of the instrument, nor upon its execution in conformity to the form and ceremony prescribed by the statute, but upon the fullness, accuracy, and persistency of the recollection of one of the persons who signed it as a witness. Such a rule cannot be maintained either upon principle or precedent.”

In the instant case, evidence was given by the subscribing witnesses placing in issue every requisite of execution. It was disputed that the document was a will, or that it was signed by testatrix, or subscribed by the witnesses as a will, or that it was published as a will; or that it was signed by testatrix in the presence of the two witnesses, or that the witnesses signed in the presence of each other and in the presence of the testatrix. The court found against the contestants to the probate on all of these issues. The subscribing witness Alcock testified, her testimony being corroborated by the evidence of the other subscribing witness, that she was not in the room when the testatrix signed, or when the other witness signed; that she was asked to sign a “piece of paper”; that she was not told by the testatrix or any one else that what she signed was a will, and that she did not know it was. If this testimony had been accepted as true by the trial court, instead of being rejected, as it was, or if it must be accepted as the fact, then, of course, the judgment is erroneous and must be reversed. In addition to the testimony outlined given by the witness Alcock, which the court rejected, she testified that the date on the will was in the handwriting of the testatrix. A handwriting expert testified, which testimony was accepted by the court, that the will had not been dated by the testatrix, but by the witness Alcock herself.

The foregoing résumé of the evidence as to the manner in which and the circumstances under which the witness Alcock signed is not rebutted or contradicted. Respondents contend that proof of the signature of the testatrix and of the two subscribing witnesses creates a presumption of due execution, even though there is no attestation clause, when there is a contradiction in the testimony of a subscribing witness, as there is in this case in the testimony of the witness Alcock, and that such presumption, in spite of positive evidence of the subscribing witnesses contrary thereto, creates a conflict in the evidence from which a trial court may properly find for or against due execution. In short, the contention of respondents is that a trial court may ignore the direct testimony of the subscribing witnesses. If there were an attestation clause, and a subscribing witness gave testimony contrary to the due execution of the will, or if, in the absence of an attestation clause, the subscribing witnesses were dead or out of the county, or, if called, failed to recollect anything concerning the execution of the will, then respondents' proposition might be conceded. In re Estate of Tyler, 121 Cal. 405, 53 P. 928; In re Estate of Kent, 161 Cal. 142, 118 P. 523; In re Cottrell's Will, 95 N. Y. 329; German Evangelical Bethel Church v. Reith, 327 Mo. 1098, 39 S.W. (2d) 1057, 76 A. L. R. 604, 617. Since in this case there is no attestation clause, we are not confronted with that question. Upon the facts of this case, the witnesses being alive and in the county and there being no attestation clause, we are convinced that the weight of authority is against the so-called presumption of due execution, in the face of positive corroborated testimony to the contrary. In re Estate of Lawrence, 196 Cal. 321, 237 P. 738; In re Estate of Emart, 175 Cal. 238, 165 P. 707; In re Estate of Dow, 181 Cal. 106, 183 P. 794; In re Estate of Tyler, 121 Cal. 405, 53 P. 928; In re Estate of Kent, 161 Cal. 142, 118 P. 523; 76 A. L. R. 623; Rolleston v. Sinclair, 2 Ir. R. 157; Estate of Strong, [1915] Prob. (Eng.) 211; Reynolds v. Massey, 219 Ala. 265, 122 So. 29. The court in Re Estate of Tyler, supra, makes it clear that proof of signatures, in the absence of an attestation clause, is sufficient to make out a prima facie case, when there is no evidence to the contrary. An analysis of the cases demonstrates that practically all of them, in which a will without an attestation clause has been admitted to probate merely upon proof of signatures, hold nothing more than what is held in the Tyler Case. In most of the cases which we have analyzed, the witnesses have been dead, out of the county, or have had no recollection as to the details of execution. It should also be borne in mind that a proper attestation clause generally recites the details of execution above the signatures of the subscribing witnesses, and that this is true in a substantial measure even of a defective attestation clause. A prima facie case is then made out, not because of any presumption, but rather because of the written assertions of the subscribing witnesses which are a part of the will. It thus appears that what is called a presumption of due execution because of proof of signature to a will, where there is an attestation clause or a defective attestation clause, is in reality a finding by the court from evidence contained in the instrument. Thus, when the subscribing witnesses in such cases given positive contrary testimony, and the court holds in favor of due execution, the holding is in reality a finding from conflicting evidence, to wit, those declarations made by a witness at the time he signs the will, and the statements made by a witness when he testifies in court. In a true sense an inference and not a presumption arises from proof of signatures alone only in those cases where there is no attestation clause. Probate Code, § 329, last sentence. This inference is sufficient to make out a prima facie case, but in this state is limited to those cases where the witnesses are dead, out of the county, or have no recollection of the subject of execution. In re Estate of Tyler, 121 Cal. 405, 53 P. 928; In re Estate of Kent, 161 Cal. 142, 145, 118 P. 523. Thus in Re Estate of Tyler, supra, 121 Cal. 405, at page 406, 53 P. 928, the court says:

“The sole contention of appellants is that the execution of the will was not sufficiently proved. And as to this point appellants did not themselves introduce any evidence to show that the will was not duly executed. They rely entirely upon the asserted insufficiency of the evidence of respondent. Indeed, the appellants offered no evidence at all on any material issue in the contest. They rest solely upon the proposition that the respondent did not prove enough.” (Italics ours.)

As said by the court in Re Walker's Estate, 110 Cal. 387, 390, 42 P. 815, 816, 30 L. R. A. 460, 52 Am. St. Rep. 104:

“It is not for courts to say that these requirements, or any of them, are mere formalities, which may be waived without impairing the status of the instrument. It is not for courts to say that a mode of execution or authentication, other than that prescribed by law, subserves the same purpose, and is equally efficient to validate the instrument. The legislative mandates are supreme, and there is no right to make testamentary disposition except upon compliance with those mandates.

“It may be freely conceded that the question under consideration is of a nature purely technical, but it is to be remembered that the whole subject-matter of the execution and authentication of wills is technical, and nothing else; and it must not be forgotten that the technicalities are those which the lawmaking power has the right to impose, and has imposed, upon the maker of a will.” To the same effect are In re Seaman's Estate, 146 Cal. 455, 80 P. 700, 106 Am. St. Rep. 53, 2 Ann. Cas. 726; In re Noyes' Estate, 40 Mont. 178, 105 P. 1013; In re Delprat's Will, 27 Misc. 355, 58 N. Y. S. 768; Woolley v. Woolley, 95 N. Y. 231.

The judgment admitting the will to probate is reversed.

ROTH, Justice pro tem.

We concur: HOUSER, P.J.; YORK, J.