Include instruments in writing making disposi- tions of property to take effect at death; nature, requisites, validity, incidents, construction, opera- tion, and effect of such instruments; evidence re- lating thereto; probate, establishment, and contest thereof; estates or interests created, and conditions or restrictions imposed thereon; and rights and liabilities of devisees and legatees. I. NATURE AND EXTENT OF TESTA- II. TESTAMENTARY CAPACITY, §§ 7-20. III. CONTRACTS TO DEVISE OR BE- IV. REQUISITES AND VALIDITY, §§ 26- A. Nature and Essentials of Testa- mentary Disposition, §§ 26-35. B. Form and Contents of Instrument, D. Holographic Wills, §§ 54-59. E. Mistake, Fraud and Undue Influ- F. Revocation and Revival, §§ 70-80. A. Probate and Revocation in General, B. Actions to Establish or Determine C. Probate or Establishment of Lost D. Probate or Record of Foreign Wills, E. Abatement, §§ 340-342. F. Legacies Charged on Property, Estate or Interest, §§ 343, 344. G. Debts of Testator and Encumbrances on Property, §§ 345-349. H. Lapsed Devises and Bequests, §§ 350-352. I. Rights and Remedies of Creditors of Devisees and Legatees, §§ 353, 354. See, also, Descent and Distribution; Executors and Administrators. Constitutional right to dispose of property by will. See Constitutional Law, § 115. Equitable conversion to effectuate directions in will. See Conversion, § 4. Deposit of deed for delivery after death of grantor. See Deeds, § 51. Effect of will on inheritable rights and effect of omission of heirs. See Descent and Distribution, §§ 18-23. Rights of child born after execution of will. See Descent and Distribution, § 23. Equity jurisdiction over. See Equity, 8 11. Power of sale in will. See Executors and Administrators, §§ 215-223. Testamentary guardians. See Guardian and Ward, SS 6, 13, 14. Conclusiveness of judgment admitting will to probate. See Judgment, § 518. Right to recover in quantum meruit for services rendered in expectation of legacy. See Work and Labor, § 7. I. NATURE AND EXTENT OF TESTA- NATURE AND EXTENT OF POWER, § 1. RESTRICTIONS ON DEVISES AND BEQUESTS § 1. Nature and Extent of Power. [a] There is no limitation upon power of disposition by will in this state.-Norris v. Harris, 15 Cal. 226. [b] The power of testamentary disposition of property, as conferred and defined by the California statute, is not paramount, but is subordinate to the authority conferred upon the probate court to appropriate the property for the support of the family of the testator, and for a homestead for the widow and minor child or children, as well as for the payment of the debts of the estate. Sulzberger v. Sulzberger, 50 Cal. 385. [c] The right of a testator to dispose of his estate depends neither on the justice of his prejudice nor the soundness of his reasoning. He may do what he will with his own; and if there be no defect of testamentary capacity, and no undue influence or fraud, the law gives effect to his will, though its provisions are unreasonable and unjust.-Spencer's Estate, 96 Cal. 448, 31 Pac. 453. [d] The right of diposition of one's property by will, the policy of which has been sanctioned by the wisdom and experience of many generations, cannot be frittered away after the death of the testator according to the tastes and notions of others in the absence of a change of the law by the legislature; and it is not necessary that the provisions of the will should meet with the approval of jurors.-Langford's Estate, 108 Cal. 608, 41 Pac. 701. [e] Right to dispose of property by will is assured by law and does not depend upon its judicious use.-Wilson's Estate, 117 Cal. 270, 49 Pac. 172, 711; Kaufman's Estate, 117 Cal. 296, 49 Pac. 192. FOR AUTHORITIES FROM OTHER STATES: 25 L. R. A. 571, note. See, also, 49 Cent. Dig., cols. 17, 18, § 1. § 2. Right of Legislature to Regulate Testamentary Disposition. [a] Legislature may prescribe formalities to be observed in execution of a will, and by doing so it does not interfere with power of disposition. McCabe, In re, 68 Cal. 520, 9 Pac. 554. [b] The right of any person to execute a will, as well as the form in which the will must be executed, or the manner in which it may be revoked, are matters entirely of statutory regulation.-Comassi's Estate, 107 Cal. 1, 40 Pac. 15. [c] The right to make a testamentary disposition of property is not an inherent right, nor a right granted by the constitution, but it rests wholly upon the legislative will, and is derived entirely from the statutes; and in conferring that right the legislature has seen fit to prescribe certain requirements in reference to the execution and authentication of the instrument, a compliance with which is necessary to the exercise of the right.Walker's Estate, 110 Cal. 387, 52 Am. St. Rep. 104, 42 Pac. 815. [d] Right of testamentary disposition is purely statutory.-Wilmerding's Estate, 117 Cal. 284, 59 Am. St. Rep. 179, 49 Pac. 181; Sharp v. Loupe, 120 Cal. 91, 52 Pac. 134, 586. [e] It is competent for legislature to deny right to dispose of property by will.-Spreckels v. Spreckels, 116 Cal. 344, 58 Am. St. Rep. 170, 48 Pac. 228. [f] Legislature has power to restrict testamentary disposition of property or to place limitations upon authority or exercise of authority given executors.-Bennalack v. Richards, 116 Cal. 408, 48 Pac. 622. § 3. Property and Rights Subject to Testamentary Disposition. [a] Testator is presumed not to have intended to devise property which he had no power to dispose of.-Gilmore, In re, 81 Cal. 242, 22 Pac. 655. [b] Real estate, the separate property of a married woman, which was, on her decease, set apart by order of court to her surviving husband, for a limited period, as a homestead, where none had been selected by decedent or her husband, was properly distributed to her heirs at law, under Code of Civil Procedure, section 1468, by which such property vests in the heirs" of decedent, subject to such homestead, and not to her devisee, under Civil Code, section 1265, which provides that it shall go to the "heirs or devisees" of such decedent, as the section first cited is a limitation on the power of testamentary disposition as to such homestead.-Matheny's Estate, In re, 121 Cal. 267, 53 Pac. 800. [e] One has no property in his dead body, so that he can dispose of it by will.-Enos v. Snyder, 131 Cal. 68, 63 Pac. 170. [d] The words "my estate," in Civil Code, section 1402, refer to what testator owned and could dispose of.-Mumford's Estate, In re, Myr. Prob. 133. [a] Under the law of Mexico, the wife, during the continuance of the marriage, has a revocable dominion in one-half of the property jointly acquired by her and her husband; but the husband is the real owner of, and has an irrevocable dominion in, all of such property, and can dispose of it at his pleasure. Held, that after the death of the wife the husband can by will direct the sale of such property for the payment of his debts, whether contracted before or after the death of his wife.-Panaud v. Jones, 1 Cal. 488. [b] Act of April 17, 1850, giving to the husband the entire control of the common property does not invest him with power to dispose of the same by devise, whereby the rights of the wife may be defeated.-Beard v. Knox, 5 Cal. 252. [e] By Mexican law one-half interest in the community property vested in the wife upon the death of the husband, and was not subject to his testamentary disposition.— Scott v. Ward, 13 Cal. 458. [d] In this state, prior to April 4, 1864, if the husband died leaving a wife and descendants, the descendants inherited one-half the common property, and it was not subject to the husband's testamentary disposition. But, if the husband died leaving a wife and no descendants, one-half the common property was subject to the husband's testamentary disposition.-Jewell v. Jewell, 28 Cal. 232. [e] The husband has not the power by a last will and testament to dispose of the wife's interest and estate in the common property.-Morrison v. Bowman, 29 Cal. 337. [f] Where a husband having only common property left a will devising all his estate to his wife for life, and after her death to be equally divided between the children, she was entitled to one-half of the property absolutely in her own right, and to a life estate in the other half under the will.Silvey's Estate, In re, 42 Cal. 210. [g] Will, as against widow, can only pass title to one-half of community.-Gwin's Estate, 77 Cal. 314, 19 Pac. 527. [h] Will devising partnership interest exclusive of real estate of testator to copartners, the partnership interest being community property. does not carry wife's interest therein.-Painter v. Painter, 113 Cal. 371, 45 Pac. 689. [i] A husband has no power to provide in his will for a sale of community property except to pay debts.-Wickersham's Estate, In re, 70 Pac. 1079. § 6. Restrictions on Devises and Bequests for Charitable or Religious Purposes. [a] Even if religious societies are not charitable or benevolent societies, within the meaning of Civil Code, section 1313, prohibiting bequests or devises to any "charitable or benevolent society or corporation, or to any person or persons in trust for charitable uses, of more than one-third of the estate, where testator leaves legal heirs, a bequest to the boards of trustees of several churches of more than one-third of the estate, to be used by the trustees for missionary purposes, is a bequest in trust for charitable uses, within the prohibition of said section.-Hewitt's Estate, In re, 94 Cal. 376, 29 Pac. 775. [b] Though the state university is a governmental institution, it is not clothed with state sovereignty, exempting it from the operation of Civil Code, section 1313, which provides that charitable bequests shall not exceed one-third of the distributable estate.-Royer's Estate, In re, 123 Cal. 614, 56 Pac. 461, 44 L. R. A. 364. [c] Civil Code, section 1313, provides that charitable corporations cannot take devises or bequests by will which shall collectively exceed one-third of the estate of the testator leaving legal heirs, and in such case a pro rata deduction from such devises or bequests shall be made, so as to reduce the aggregate to one-third. Held, that where a widow died leaving no next of kin, but was survived by two nieces of her deceased husband, property conveyed to the wife during her husband's life, both by the vendor and by her husband, should not be considered in determining the one-third of the widow's estate devised to charitable corporations.-McCauley's Estate, In re, 138 Cal. 546, 71 Pac. 458. [d] The nieces being legal heirs of the deceased widow, though she left no next of kin, charitable bequests to corporations should be reduced pro rata under section 1313 of the Civil Code, so as to reduce the aggregate thereof to one-third.-McCauley's Estate, 138 Cal. 546, 71 Pac. 458. [e] If original will containing bequests to charitable society was executed more than thirty days before the testator's death, the fact that a codicil relating wholly to other matters was executed within less than thirty days of the death, will not invalidate the charitable bequests.-McCauley's Estate, 138 Cal. 432, 71 Pac. 512. [f] The limitation of bequests for charitable purposes to one-third of testator's estate, contained in Civil Code, section 1313, means one-third of the gross value of such estate, not the value after the payment of debts.Hinckley's Estate, In re, Myr. Prob. 189. FOR AUTHORITIES FROM OTHER STATES: See 49 Cent. Dig., cols. 42-58, §§ 32-39. § 9. Degree of Memory. [a] Testatrix, when she made the will propounded for probate, was old, and weakened by disease. Witnesses testified that she did not know what she was doing most of the time. She could not remember the names of her intimate acquaintances, or the identity of the persons. When her acquaintances called on her, she could not remember the next day she had seen them, and on one occasion forgot her own name. At the table she would not remember what she had eaten. or the fact that she was in the act of eating. Held, that a finding that testatrix had not testamentary capacity was justified.— Langley's Estate, In re, 140 Cal. 126, 73 Pac. 824. FOR AUTHORITIES FROM OTHER STATES: See 49 Cent. Dig., cols. 84, 85, § 69. § 10. Degree of Mental Capacity in General. [a] A person is of "sound and disposing mind" who is in possession of the natural mental faculties of man, free from delusion, and capable of rationally thinking and acting for himself.-Black's Estate, In re, Myr. Prob. 24. FOR AUTHORITIES FROM OTHER STATES: See 49 Cent. Dig., cols. 79-84, §§ 66-68. § 11. Insane Persons. [a] A sound mind is one wholly free from delusion. Tittel's Estate, In re, Myr. Prob. 12. FOR AUTHORITIES FROM OTHER STATES: Testamentary capacity, insanity, partial, effect of on will: 41 Am. Rep. 686, note. See, also, 49 Cent. Dig., cols. 8596, §§ 71-92. Insane Delusions or Monomania. [a] As a matter of law a testator is not of unsound mind, if he mistakenly believed that his relatives had mistreated him, and therefore made no provision for them in his will.-Carpenter v. Bailey, 94 Cal. 406, 29 Pac. 1101. [b] A mere delusion of testator as to contestant's attitude toward him will not invalidate will.-Ruffino, In re, 116 Cal. 317, 48 Pac. 127. [a] An opinion which is merely simulated and but a fleeting vagary is not an insane delusion.-Redfield's Estate, In re, 116 Cal. 637, 48 Pac. 794. |