IN RE: LA MONT'S ESTATE. (1952)

This is an appeal from a judgment of the superior court denying probate to a document executed by decedent and from an order denying a new trial. The will in question reads as follows:

‘June 19, 1950.

‘To Whom it May Concern:

‘I, Daniel Everett LaMont, do hereby bequeath my estate and its entire residue to my sister, Bella LaMont, of the home address.

‘My sister, Bella LaMont, and my nephew Fred C. Smith, 523 Cecil St., Monterey Park, Calif., whose signatures appear below are to jointly administer the estate without bond. My nephew, Fred C. Smith, is to act as Guardian for my brother, Albert LaMont.

‘D. E. LaMont

‘D. E. LaMont

‘Bella LaMont

Witness: Klari Moore

‘Bella LaMont

Address 1001 So-1st St.

Alhambra, Calif.

‘Fred C. Smith

Witness: Helen B. Smith

‘Fred C. Smith

Address 523 Cecil St.

Monterey Park, Calif.

‘Notary Public.’

The trial court found as follows:

‘1. That the decedent, Daniel Everett Lamont, etc., on June 19, 1950, published and declared the instrument propounded as his last Will and Testament to be his last Will and Testament, and subscribed the same, all in the presence of Helen B. Smith, Fred C. Smith and Bella Lamont. ‘* * *.

‘3. That witness, Klari Moore, subscribed said instrument as a witness, at the request of Fred C. Smith, on June 25, 1950, but not in the presence of Helen B. Smith, and not in the presence of the decedent, Daniel Everett Lamont, etc.

‘4. That Fred C. Smith and Bella Lamont were not requested by said decedent to affix their signatures to said will as witnesses, but said parties were present at the time the testator executed said will and were requested by said testator to sign said will as executor and executrix respectively.’

The court concluded that the instrument ‘was not executed with the formality required by Section 50 of the Probate Code of the State of California and probate of said instrument is therefore denied for the foregoing reasons.’

On July 21, 1950, Bella LaMont and Fred C. Smith petitioned the superior court for probate of the foregoing will of decedent and for letters testamentary. On August 2, 1950, and before the hearing on the petition for probate, William L. Gunness filed a contest to the probate of said will, alleging lack of testamentary capacity, undue influence, fraud and absence of legal execution of the testamentary document. An answer to said contest was duly filed by Bella LaMont and Fred C. Smith. No appearance was made on behalf of Albert LaMont.

When the cause was called for trial before the court sitting without a jury, the allegations with regard to lack of testamentary capacity, undue influence and fraud were abandoned by the contestant, the authenticity of decedent's signature to the will was admitted by contestant, and the contest proceeded to trial on the single issue of due execution.

Upon the hearing it was undisputed that the signing by Helen B. Smith as a witness was in conformity with section 50 of the Probate Code. Since Bella LaMont was the sole beneficiary under the will the proponents did not rely upon her signature as that of an attesting witness. It is conceded that the signature of Klari Moore was affixed only at the request of Fred C. Smith and not by request of the testator.

Proponents' contention was that the will was properly and legally witnessed by Fred C. Smith and his wife Helen B. Smith.

The foregoing findings of fact are in all respects favorable to proponents save and except the finding that Fred C. Smith did not sign the testamentary document ‘as a witness' but signed ‘as an executor’. Based upon this finding the court concluded as a matter of law that pursuant to the provisions of section 50 of the Probate Code, the will in question was not entitled to be admitted to probate and rendered judgment accordingly.

The sole question presented on this appeal is whether the evidence supports the foregoing finding adverse to proponents insofar as the signature of Fred C. Smith as a claimed witness to the will is concerned.

Appellants recognize and admit the existing rule that a finding of the trial court will not be disturbed on appeal if there is substantial evidence in the record to support it, regardless of conflicting or contradictory evidence.

To determine appellants' contention that there is no substantial evidence in the record it becomes necessary to set forth the testimony.

In that regard the record reveals that Bella LaMont, Fred C. Smith and Helen B. Smith, called as witnesses for proponents, each testified that they saw the decedent sign the will, that they saw each of the others sign the will, that they recognized each of the signatures, that each of the signatures was affixed in the presence of all, that at the time of signing, the decedent requested each of them to sign as a witness to the will and declared to them that the document was his last will and testament.

Fred C. Smith further testified on direct examination that after decedent had signed the will he asked Bella LaMont to sign it, and Fred C. Smith stated, ‘Well, Mrs. Wagner has said that as long as she is a party to the will, she can't sign it,’ that the Mrs. Wagner referred to was a notary public who had advised the witness, that in reply to this remark by Fred C. Smith, decedent said, ‘Well, never mind about that. I want her (Bella LaMont) to sign and I want you (Fred C. Smith) to sign, and I want Helen (Smith) to sign.’ The witness further testified on cross examination that decedent requested him to sign as a witness and that the will was prepared by Helen B. Smith. The witness also testified, in answer to questions propounded by the trial judge, that Klari Moore signed the will at a later date at the witness' request in the living room, that prior to the execution of the will decedent had suggested that two neighbors be witnesses and had later suggested that the doctor and the nurse would do as well, that he also requested Helen B. Smith, Fred C. Smith and Bella LaMont to sign as witnesses. In answer to the trial judge's question, ‘Well, then why ask these other people—Mrs. Moore, to be a witness?’ The witness testified, ‘Because he was under the impression that it was necessary to have the additional witnesses. He also was under the impression that the notary public was necessary * * *’.

It is at once apparent that had the trial judge believed the foregoing testimony, a finding that the will was duly executed would be imperative. But, that he did not believe such testimony is evidenced by the record wherein he expressed himself as follows: ‘I am faced with the question of deciding whether or not these people are telling the truth when they say they were asked to sign as witnesses. Frankly, I don't believe their testimony. I don't think they were told to sign as witnesses at all. That is, the first day. I think probably—that is, in so many words. They have all said they were told to sign as witnesses, but it just doesn't—I mean, it just doesn't——

‘Mr. Graves: That is our position, your Honor.

‘The Court: It doesn't strike the Court as the natural thing. Now, I have no reason to disbelieve these people, on the other hand, but why the attempt to get another witness? I think they were signing because the decedent was under the impression, due to the misinformation that had been given to him by this notary public, or somebody, that these people who were being designated—let me see that will—who were being designated respectively as executrix, ‘Bella LaMont, and my nephew, Fred C. Smith, whose signatures appear below, are to jointly administer the estate without bond.’

‘Now, he apparently thought that these people had to sign it to accept that particular assignment.’ (Emphasis added.)

The foregoing comments and conclusions of the trial judge were instigated in part by an examination of the proffered will, and the manner in which the signatures thereto were affixed. In the testamentary document the word ‘witness' immediately precedes the names of Klari Moore and Helen B. Smith, while no designation appears in connection with the names of Bella LaMont or Fred C. Smith. However, in connection with the signatures of the last two people, as the court observed, the will itself refers to them in the last paragraph thereof wherein appears the following: ‘My sister, Bella LaMont, and my nephew, Fred C. Smith, 523 Cecil St., Monterey Park, Calif., whose signatures appear below are to jointly administer the estate without bond’.

We are impressed that from the foregoing the court could reasonably draw an inference that neither Bella LaMont or Fred C. Smith signed the testamentary document ‘as a witness, at the end of the will, at the testator's request’ as required by subdivision 4, section 50 of the Probate Code.

Insofar as the testimony of the witnesses Bella LaMont, Fred C. Smith and Helen B. Smith is concerned, their credibility is a matter settled before the case reaches the appellate tribunal. If we are correct in our understanding of the rules to the effect that the credibility of witnesses and the weight to be given their testimony are addressed to and settled by the trier of facts, and not on appeal, and that on appeal all reasonable inferences from the evidence must be drawn in favor of the prevailing party, we cannot agree with counsel for appellants that there is no substantial evidence supporting the judgment. And this is true even though we are of the opinion that we would have admitted the will to probate had we been sitting in the trial court.

In Re Walker, 110 Cal. 387, 390, 42 P. 815, 1082, 30 L.R.A. 460, our Supreme Court said: ‘* * * the right to make testamentary disposition of property is not an inherent right or a right of citizenship, nor is it even a right granted by the constitution. It rests wholly upon the legislative will, and is derived entirely from the statutes. In conferring that right the legislature has seen fit to prescribe certain exactions and requirements looking to the execution and authentication of the instrument, and a compliance with these requirements becomes necessary to its exercise.’

Under the provisions of subdivision 4, section 50 of our Probate Code an ‘attesting witness' is one who is selected by the testator or testatrix to act as such and requested to sign his or her name as such.

As a prerequisite to the exercise of the testamentary right in this state, the legislature has prescribed the foregoing as one of the requirements for the execution and authentication of wills such as the one now before us.

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

The trial court having found upon inferences reasonably deducible from facts established by an examination of the will itself that the mandates of section 50 of the Probate Code were not complied with, we are without authority to interfere.

We have examined the cases cited by and relied upon by appellants but find them distinguishable from the instant case and questions here involved.

That the overthrowing of any will works a hardship upon the devisees and legatees is obvious; but the law is no more tender of their claims than it is of the rights of the natural heirs. Once a will is proved every effort and exertion of the court is directed to give effect to the wishes of the testator as therein expressed, but in the proving of the instrument the sole consideration before the court is whether or not the legislative mandates have been complied with.

The attempted appeal from the order denying a new trial is dismissed. The judgment is affirmed.

WHITE, Presiding Justice.

DORAN and DRAPEAU, JJ., concur.