IN RE: KINNEY'S ESTATE.* (1939)

District Court of Appeal, Third District, California.

IN RE: KINNEY'S ESTATE.*

Civ. 6314

Decided: December 21, 1939

Taft & Spurr, of Ukiah, for appellant. Snyder & Snyder, of San Andreas, and Clark, Nichols & Eltse, of Berkeley, for respondents.

This is an appeal from a judgment refusing to revoke the probate of the will of Anna Leona Graves Kinney, deceased.

The instrument so admitted to probate as an holographic will reads as follows:

“July 19, 1934

“I Anna Leona Graves Kinney, do bequeath all of my possessions to my four sisters who were living in 1923.

“They are:

“Mrs. Joe Ella Graves Yeargin, Nashville, Tenn.

“Mrs. Cora Graves Hall, Sunnyside Davidson Co. Tenn.

“Mrs. Maggie Odessie Graves Englishman, Nashville, Tenn.

“Miss Mary Almedia Graves Nashville, Tenn.”

It is the contention of contestant and appellant that the will was not signed by the deceased and therefore was not entitled to probate.

As pointed out in Estate of Brooks, 214 Cal. 138, 4 P.2d 148, in admitting a will, the first line reading, “This is my will—Elizabeth Ryan Brooks *”, followed by various specific devises, said that although the usual place of signing a will is at the end, nevertheless the signature of the testator found elsewhere than at the end may, if the circumstances warrant, constitute a signature of execution, but that the only evidence which will warrant such conclusion must be found in and on the instrument itself, and in so holding, the court there considers and distinguishes many cases, some of which are found in the brief of this appellant.

The case principally relied upon by appellant is the Estate of Manchester, 174 Cal. 417, 163 P. 358, 359, L.R.A.1917D, 629, Ann.Cas.1918B, 227. The purported will there read: “I, Matilda Manchester, leave and bequeath all my estate & effects * to the following legatees, viz.” followed by a statement of devises to several persons, and ending “Whereunto I hereby set my hand this fourteenth day of January, 1914.” The court held that this instrument showed affirmatively that the writer had not finished the things she intended to do, in that, among other things, the closing words, “Whereunto I hereby set my hand,” etc., are apt words to precede a signature of a testator.

The rule is clearly laid down, however, in the Manchester case, supra, as follows: “The true rule, as we conceive it to be, is that, wherever placed, the fact that it was intended as an executing signature must satisfactorily appear on the face of the document itself. If it is at the end of the document, the universal custom of mankind forces the conclusion that it was appended as an execution, if nothing to the contrary appears. If placed elsewhere, it is for the court to say, from an inspection of the whole document, its language as well as its form, and the relative position of its parts, whether or not there is a positive and satisfactory inference from the document itself that the signature was so placed with the intent that it should there serve as a token of execution. If such inference thus appears, the execution may be considered as proven by such signature.”

A document was refused probate in the Estate of Devlin, 198 Cal. 721, 247 P. 577, because, as in the Manchester case, supra, it appeared upon the face of the paper that the writer had not finished his task.

In the Estate of Hurley, 178 Cal. 713, 174 P. 669, the document was refused probate because there was nothing in the body of the instrument or in the closing paragraph to indicate the testatrix intended to adopt the signature in the first line as the executing signature of the will, and the opinion also pointed out that the will terminated without a period indicating that the testatrix ceased writing before she completed the instrument, and was not regarded by her as a completed will. In Estate of Bernard, 197 Cal. 36, 239 P. 404, the instrument was denied probate because there was nothing in any part of the document to show affirmatively that the signature in the exordium was intended as a signature. Likewise, in the Estate of Leonard, 1 Cal.2d 8, 32 P.2d 603, the Supreme Court sustained the trial court in holding there was nothing on the face of the instrument which showed an intention on the part of the author to adopt the name in the exordium clause executing signature. The document ended abruptly several inches from the bottom of the page with a dash following the last words, “we had our suit and he got licked_”.

Examining the document here before us it is to be noted the instrument is written in ink; it is dealing with the entire property of the testatrix,—“all my possessions”—and it was given to her four sisters who were specially named. The document was carefully punctuated and ended with a period. The original document also shows that the “a” in Anna, the “s” in sisters and “e” in were, were retraced, indicating such care as would be bestowed upon a completed and final document.

Among the cases cited and relied upon by respondent is Estate of Sullivan, 94 Cal.App. 674, 271 P. 753; Estate of Morgan, 200 Cal. 400, 253 P. 702; Estate of Brooks, 214 Cal. 138, 4 P.2d 148; Estate of McMahon, 174 Cal. 423, 163 P. 669, L.R.A.1917D, 778; Estate of Bauman, 114 Cal.App. 551, 300 P. 62; Estate of Streeton, 183 Cal. 284, 191 P. 16, all of which analyze and distinguish the various cases dealing with the effect of wills where the signature appears in the exordium clause.

An examination of these cases and the application of the rule in the Manchester case, supra, to the facts here, together with the rule that the due execution of a will is a question of fact, and its determination by the trial court must be sustained unless the determination is unsupported by the evidence (Estate of Bernard, 197 Cal. 36, 239 P. 404) convinces us the order and judgment from which the appeal is taken must be affirmed. It is so ordered.

Mr. Presiding Justice PULLEN delivered the opinion of the court.

We concur: TUTTLE, J.; THOMPSON, J.