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6. The tests of testamentary capacity are:

Construction-Subdlvision 1.-The stat. 1. Understanding of what the testator or ute does not require that the testator's sigtestatrix is doing; 2. How he or she is doing nature shall occupy any specific place with it; 3. Knowledge of his or her property; reference to the signatures of the witnesses. 4. How he or she wishes to dispose of it; and -Estate of Dutcher, 172 Cal. 488, 157 Pac. 5. Who are entitled to his or her bounty.- 242. Estate of De Laveaga, 6 Cof. Prob. Dec. 55.

3. The name of the testator written a 7. It is not enough that the testator or

short distance below the body of the will testatrix have a mind sufficient to compre- is subscribed "at the end thereof."-Estate hend one of the above elements; his or her

of Dutcher, 172 Cal. 488, 157 Pac. 242. mind must be sufficiently clear and strong to perceive the relation of the various ele

-Subdivision 3.—It is not necessary ments to one another, and he or she must

that the testatrix should have spoken words

declaring the document to be her will, or have at least a general comprehension of the whole.—Estate of De Laveaga, 6 Cof. Prob.

that she should expressly request the witDec. 55.

nesses to sign it as such, as the same may

be implied from her conduct and the atten8. A testator or testatrix need not be expected to know the exact legal scope and

dant circumstances.-Estate of Cullberg, 169 bearing of his or her will, but should have

Cal. 365, 146 Pac. 888. sufficient faculty to understand generally his

5. An order denying probate of a will or her circumstances and natural obliga

on the ground that the testatrix did not tions. The age of eighteen years in this

declare to the attesting witnesses that the state is fixed the minimum limit at

instrument was her will, and that she did which that faculty is developed in a normal

not request the witnesses to sign as such, nature; in some other states and countries is erroneous, where it is shown that the it is twenty-one.-Estate of De Laveaga,

will and also the attestation clause were 6 Cof. Prob. Dec. 55.

both read aloud to the testatrix, where9, Under the statutes of California every upon the person acting for her indicated person over the age of eighteen years may

the place for her signature, and after such by last will dispose of his or her estate,

signing, he asked the witnesses to sign, provided he or she is of sound mind and

which they did, the testatrix having refree from undue influence, duress, or fraud. mained silent during the entire proceeding.-Estate of De Laveaga, 6 Cof. Prob. Dec. 55.

Estate of Cullberg, 169 Cal. 365, 146 Pac. 888. 10. Execution of will.-Proof of sponta- 6. -Subdivision 4.—Oral testimony is adneous action on the part of a testator will missible to show that the testator signed be required where his wishes upon the first and that the witnesses then signed.execution of his will are manifested by Estate of Dutcher, 172 Cal. 488, 157 Pac. 242. signs made in response to questions.—Estate of Clark, 170 Cal. 418, 149 Pac. 828.

§ 1277. 11. The fact that a testator makes his

1. Holographic will-Sufficiency.-A docuwishes known partly by pantomime and

ment wherein the first line was "Winters partly in answer to questions, and that the

Yo lo Co 10 1912" is insufficiently dated mechanical wor affixing name to

to comply with this section.-Estate of Carthe will was performed by others, is not

penter, 172 Cal. 268, L. R. A. 1916E 498, 156 sufficient to invalidate the instrument.--Es

Pac. 464. tate of Clark, 170 Cal. 418, 149 Pac. 828.

2. The general rule that the provisions $ 1275.

of the code "are to be liberally construed

with a view to effect its objects" has never 1. Who may take under-Charitable be

been stretched to excuse lack of substantial quest.-A money bequest "to be used in

compliance with the statutory requirement erecting a suitable fountain for the benefit

that a holographic will must be dated by of thirsty animals and birds" is for a charitable use, and the city of Sacramento, under

the testator.-Estate of Carpenter, 172 Cal.

268, L. R. A, 1916E 498, 156 Pac. 464. this section, and under its charter, may accept such a bequest.–Estate of Coleman,

3. A holographic will which is not dated 167 Cal. 212, Ann. Cas. 1915C 682, 138 Pac.

except in the following manner: "I have 992.

subscribed my name and affixed my seal this

22nd day of March, in the year of our Lord 8 1276.

one thousand," does not comply with the

requirements of section 1277 of the Civil DUE EXECUTION OF WILL.

Code, defining holographic wills.-Estate of 1. Ascertainment of by trial court.

Vance, 174 Cal. 122, 162 Pac. 103. 2, 3. Construction-Subdivision 1.

A date which is incomplete because of intent.--Estate of Silva, 169 Cal. 116, 145 Pac. 1015.

4. 4, 5. — Subdivision 3.

lacking a statement of either the day, the 6. Subdivision 4.

month or the year of execution does not 1. Ascertainment of by trial court.--The satisfy the statutory definition of a holoquestion of due execution of a will is one graphic will. But the instrument, if it of fact, and its determination by the court bears a statement of the day, the month below is not to be overthrown on appeal and the year, is not invalidated because one unless it is without support in the evidence. or more of these elements may be incor-Estate of Cullberg, 169 Cal. 365, 146 Pac. rectly given.-Estate of Vance, 174 Cal. 122, 888.

162 Pac. 103.

§ 1280.

1. Executor as witness. The executor named in a will is not, by reason of interest, disqualified to act as an attesting witness.Estate of Egan, 6 Cof. Prob. Dec. 28.

8 1285.

1. Will made out of state Construction.—This means that charitable bequests in foreign wills shall be governed by the same rules controlling like bequests in domestic wills. There is nothing in the language to justify the limitation to cases of a will of a nonresident decedent which has not been probated in the court of domicile of the decedent.-Estate of Lathrop, 165 Cal. 243 131 Pac. 752.

2. There is nothing in the language of this section to justify the argument that its application must be limited to cases of a will of a nonresident decedent which has not been probated in the court of domicile of the decedent. In fact the very language forbids it in saying that no will is valid excepting as therein provided. — Estate of Lathrop, 165 Cal. 243, 131 Pac. 752:

$ 1299.

1. Effect of marriage of man-Construction.—This section applies only to antenuptial and not to postnuptial wills. Estate of Cutting, 172 Cal. 191, 155 Pac. 1002.

2. There is nothing in this section which precludes the republication of an antenuptial will in accordance with section 1287. -Estate of Cutting, 172 Cal. 191, 155 Pac. 1002.

3. Under the provisions of section 1299 of the Civil Code an antenuptial will is revoked on the death of the testator, where the wife survives him, unless provision has been made for her by marriage contract, or unless she is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision.-Estate of Cutting, 172 Cal. 191, 155 Pac. 1002.

4. A will executed by a testator before his marriage which neither provides for his wife nor mentions her in such way as to show an intention not to provide for her is not revoked on his death, in case the wife survives him, where he, after the marriage, executes a codicil thereto affirming the antenuptial will and provides therein for his wife.-Estate of Cutting, 172 Cal. 191, 155 Pac. 1002.

5. A husband may make a postnuptial will providing for his wife, either by a will made originally after marriage, or by the republication of an antenuptial will as modified by a codicil.--Estate of Cutting, 172 Cal. 191, 155 Pac. 1002.

6. Where an antenuptial will is republished by a valid postnuptial codicil, the two are to be regarded as forming one instrument speaking from the date of the codicil.—Estate of Cutting, 172 Cal. 191, 155 Pac. 1002.

8 1287.

1. Republication by codicil-Construction. -This section does not preclude an antenuptial will under section 1299 from being republished and becoming a part of a postnuptial will.--Estate of Cutting, 172 Cal. 191, 155 Pac. 1002.

8 1292.

1. Suficiency of acts of burning, tearing, etc.There must be an actual burning, tearing. canceling, etc., with the intent to revoke. The mere intent unperformed, to burn or destroy the will, is insufficient. There must be a joint union of act and

8 1313. CHARITABLE, ETC., BEQUESTS. LIMITATION AS TO TIME AND AMOUNT. No estate, real or personal, shall be bequeathed or devised to any charitable or benevolent society or corporation, or to any person or persons in trust for charitable uses, except the same be done by will duly executed at least thirty days before the decease of the testator; and if so made at least thirty days prior to such death, such devise or legacy and each of them shall be valid; provided, that no such devise or bequest 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 thereof to one-third of such estate; and all dispositions of property made contrary hereto shall be void, and go to the residuary legatee or devisee, next of kin, or heirs, according to law;

[Bequests to state excepted.] and provided, further, that bequests and devises to the state, or to any state institution, or for the use or benefit of the state or any state institution, are excepted from the restrictions of this section.

History: Enactment approved March 18, 1874, Code Amdts. 1873-4, p. 276; amended May 5, 1917, Stats, and Amdts, 1917, p. 272. In effect July 27, 1917.

1. Restriction on charitable devises — of his entire estate and not merely one-third Construction.-Applied to a nonresident the of that part situate within the state. Eslimitation of the amount means one-third tate of Sloane, 171 Cal. 248, 152 Pac. 540.

2. Personal property of a nonresident mistook the name while retaining the idea. testator is subject to distribution under the -Estate of Irwin, 6 Cof. Prob. Dec. 359. laws of this state where the property is situated in this state at the time of the $ 1318. testator's death, and the provision of section

1. 1313 of the Civil Code limiting the amount

Ascertaining intention from context of which a testator may give to charitable

will.-The word "children" in a will has

been purposes to one-third of his estate is ap

held to include grandchildren only, plicable to the distribution of such property,

where there is an ambiguity in the will

itself which leaves the meaning of the testanotwithstanding the state of the testator's domicile has no law making such a limita

trix in respect to the word "children" uncertion.-Estate of Sloane, 171 Cal. 248, 152 Pac.

tain, in which case extrinsic evidence may 540.

be introduced to explain the meaning in3. It is only where there is no residuary

tended by the testatrix and to show that bequest to charity that the rule of pro rata

the word was used to include "grandchildeductions applies.--Estate of Sloane, 171

dren," and where there is a latent ambigCal. 248, 152 Pac. 540.

uity, as where the will purports to make a 4. Where the sum of six thousand three

gift to "children” and it appears that none hundred and thirty-four dollars and forty

were living at the execution of the will, cents represents all of an estate that can

or afterward, in which case extrinsic evibe distributed to charitable purposes, and

dence may be given showing "grandchilthe will contains two charitable bequests,

dren" were intended.—Estate of Willson, one a specific bequest of four thousand dol

171 Cal. 449, 153 Pac. 927. lars and the other the bequest of the residue,

2. In interpreting paragraphs of a will the distribution of the specific bequest in

the intention of the testatrix must be found full, without reduction, and of the residue to

in the context, and it must accord with the the other legatee, is correct. Estate of

law. The question is not what she meant, Sloane, 171 Cal. 248, 152 Pac. 540.

but what her words mean; and the intention

must clearly appear to be lawful.-Estate $ 1317.

of Willson, 6 Cof, Prob. Dec. 34.

3. 1. Interpretation of wills - Intention of

In determining the intention of a testestator governs.—The court must look to

tatrix the court can consider the circumthe purpose of the testator and endeavor

stances surrounding the execution of the to construe the words of the will, if reason

will only when inconsistencies or ambiguably possible, upon principles that admit of

ities in the language used make the intena compliance with that purpose.—Estate of

tion as declared by the will doubtful.Budd, 166 Cal. 286, 135 Pac. 1131.

Estate of Willson, 6 Cof. Prob. Dec. 34. 2.

4. Words in a will expressing desire or

The inadvertent omission of a word wish, when directed to the estate, not to

will not be allowed to defeat a will if the some devisee with respect to the property

intention of the testator can be discovered received by him, are to be deemed as dis

from the entire document, and a reasonable positive expressions evincing the will of the reading of its text, and a consideration of testator with respect to the property.

all the circumstances.-Estate EspitalEstate of Tooley, 170 Cal. 164, 149 Pac. 574. lier, 6 Cof. Prob. Dec. 299.

3. The paramount object in resolving an ambiguity in a will is to ascertain the inten- § 1319. tion of the testator. All other of the estab

1. Canons of construction.-In interpretlished rules of construction are designed

ing wills courts bound to carry out to assist in this main object. But the inten

canons of construction, no matter how techtion sought for is not that which may have

nical they may seem to those who have not existed in the mind of the testator, but that

studied their philosophy, and one of these which is expressed in the language of the

rules is, most imperatively imposed, that will, giving such language, if clear, its ordi

courts must stand by the words of the will. nary meaning, and if ambiguous, the mean

-Estate of Willson, 6 Cof. Prob. Dec. 34. ing it should have, in the light of t context

2. A will drawn by a person not eduand the circumstances shown to explain the

cated in the ordinary sense, nor skilled in meaning.-Estate of Sessions, 171 Cal. 346,

the use of legal formulae, is not to be 153 Pac. 231.

treated with the strictness that is applied 4. In the construction of wills the inten

to the work of a professional draftsman.tion of the testator must govern, and in

Estate of Espitallier, 6 Cof. Prob. Dec. 299. order to carry out this, as collected from the context, words may be, when necessary, supplied, transferred or changed.--Estate of Es

8 1320. pitallier, 6 Cof. Prob. Dec. 299.

1. Will on several sheets of paper-For5. A bequest to the United Charities of

will.-Three sheets of paper of the San Francisco" will be given effect as

same size and character of paper, apparbequest to “The Associated Charities of San ently torn from the same writing pad, arFrancisco," there being no institution in ranged in proper sequence, and each conSan Francisco bearing the name “United taining a writing of testamentary character Charities," it being evident that the testator entirely in the handwriting of the testatrix had in mind a union or association of char- may be read as a part of a harmonious, itable organizations in the city, but that he homogeneous, holographic will and not the

are

mer

a

or

case contemplated by this section.-Estate of the testatrix, be it real, personal of Merryfield, 167 Cal. 729, 141 Pac. 259. mixed, and wheresoever situate, to a person

2. A former will which has been revoked not a kin to the testatrix "and to his heirs by the will in question is not admissible and assigns forever," the legal heirs of the for the purpose of interpreting any provi- testatrix, not the heirs of the residuary legsion of the later will.-Estate of Vander- atee, are entitled to the bequest where such hurst, 171 Cal. 553, 154 Pac. 5.

legatee dies during the lifetime of the testa

trix.-Estate of Sessions, 171 Cal. 346, 153 8 1322

Pac. 231. 1. Defeating or limiting devise.—Words subsequently used in a will, which merely

§ 1337. raise a doubt or suggest an inference, will 1. Bequest to employees.-Under the pronot be construed as limiting or cutting down vision of a will bequeathing the sum of an absolute estate conveyed by one clause $1,000 each to all employees of a lime and of a will.--Estate of Budd, 166 Cal. 286, 135 cement company “now working" for such Pac. 1131.

company, “who have been in said employ 2. A residuary bequest in a will is not for twenty years," and the sum of $500 each made the less such by the testator using to all employees "who have worked over the words "consisting of" and proceeding to ten years,—in all cases these dates are as enumerate items going to make up the of January 1st, 1911," it is not the intention residuum.-Estate of Richardson, 6 Cof. of the testator that in order to be the reProb. Dec. 354.

cipient of his bounty that an employee, in

addition to showing that he had worked for 1326.

the period of years required, should show 1. Presumption against intestacy.--A will, that he was actually working on the 1st day as such, raises the presumption that its of January, 1911, since it is to be assumed maker intends to dispose of his or her entire that the testator knew by the custom of the estate, and not to die intestate as to a part; company and the character of the day that and the presumption is strengthened by the

the employees would not be actually workabsence of a residuary clause.-Estate of

ing on that day.--Estate of Cowell, 170 Cal. Espitallier, 6 Cof. Prob. Dec. 299.

364, 149 Pac. 809.

2. An employee who had worked up to $ 1329.

January 1, 1911, and had been paid off with 1. Particular words unnecessary. The use

the other employees on the last of Decemof the phrase "to his heirs and assigns" in

ber, 1910, pursuant to the custom of the a disposition of the fee in real property

company, is an employee within the meanstill persists and is frequent, notwithstand

ing of the provision of the will, notwith

standing the ing the fact that it is unnecessary for that

company

not further purpose. In a will so drawn, therefore,

obliged to employ him unless it saw fit to when occurring in the customary place, it

do so.—Estate of Cowell, 170 Cal. 364, 149

Pac. 809. has little significance of any intent other than the usual one to pass the fee.-Estate of Sessions, 171 Cal. 346, 153 Pac. 231.

§ 1340.

MISTAKES AND OMISSIONS. 8 1331

1, 2. Latent ambiguity. 1. Devise of what interest.-A bequest in

3. Mistake in designation of beneficiary. a will of all the testator's "interest in the

4, 5. Omission of dollar mark. estate" of a named decedent will be con

1. Latent ambiguity-Where the meanstrued to pass not only such interest as

ing of the will on its face, taking the words vested in him as a beneficiary of such estate,

in the ordinary sense, is entirely clear, and but also such further interests as he may where no latent ambiguity is made to aphave acquired in the property thereof by

pear by extrinsic evidence, there can be no succession or bequest from other benefi

evidence of extrinsic circumstances to show ciaries, where such estate was in process of

that the testatrix intended or desired to do administration at the time of the death of

something not expressed in the will.—Estate the testator, and his interests therein con

of Willson, 171 Cal. 449, 153 Pac. 927. stituted the whole of the property left by 2. That the word "children" was meant him.-Estate of O'Gorman, 6 Cof. Prob. Dec.

to include grandchildren can be established 245.

under this section only where there is a 2. A general devise of all the property a

latent ambiguity.--Estate of Willson, 171 testator may die possessed of, without any

Cal, 449, 153 Pac. 927. specific property being named, applies to

3. Mistake in designation of beneficiary.but his moiety of the community property, Where a testator makes a bequest to a body if a married man.-Estate of Lamb, 6 Cof.

or society which he designates in his will as Prob. Dec. 432.

"The Woman's Christian Temperance Union

of Los Angeles," and it appears that such 8 1334.

designation does not describe exactly either 1. “Heirs"-Who inherit on lapse.—Where one of three different corporations who apthe residuary clause of a will gives all the pear to claim the legacy, parol evidence rest, residue and remainder of the property is admissible to determine which corporation claims interest on the legacy the claim pital Assn. V. All Persons, 169 Cal. 455, 147 therefor should be asserted in the proceedPac. 124.

was

8 1341.

1.

was intended.-Estate of Little, 170 Cal. 52, of $5000.00 from my share of Dr. Dempster's 148 Pac. 194.

estate and place it in the care of the MethOmission of dollar mark.-If, in a will odist Episcopal Conference," etc., standing in the French language, there is an absence alone falls within the definition of a speof express words or signs indicating the cific legacy under subdivision 1 and not that sort of money to which numerical figures of a demonstrative legacy under subdiviused have reference, in respect of legacies, sion 2.-Estate of Goodfellow, 166 Cal. 409, the word "dollars" or "francs" may be read 137 Pac, 12. into the will according to the aptness of 2. Specific legacies are not favored by either in the opinion of the court, judging the law, and in cases of doubt legacies are from the connection and the circumstances.- held general or demonstrative, rather than Estate of Espitallier, 6 Cof. Prob. Dec. 299. specific; the reason for this is that specific

5. The omission of the dollar mark before legacies are not liable for the debts of the the figures of a legacy is frequent in wills, testator, and on the other hand they fail and is implied by courts construing them.- or are adeemed if the thing or fund is not Estate of Espitallier, 6 Cof. Prob. Dec. 299. in existence at the time of the death of the

testator.--Estate of O'Gorman, 6 Cof. Prob. Dec. 245.

3. 1. When devise vests.-A devise that

A devise of an interest in an estate of property “shall become and be" the property

a deceased person is specific.-Estate of of the legatee on reaching his majority fixes

O'Gorman, 6 Cof. Prob. Dec. 245. the time of enjoyment rather than the time of taking title. The presumption of this 8 1359. section aids in the interpretation of the 1. Resort to estate to pay debts-Conwords.-Estate of Budd, 166 Cal. 286, 135 struction.-Whether there is any conflict Pac. 1131.

between this and section 1563 of the Code of

Civil Procedure is raised, but not deter$ 1349.

mined.—Estate of Bernal, 165 Cal. 223, Ann. Condition subsequent not favored.

Cas. 1914D 26, 131 Pac. 375. Conditions subsequent in deeds are not fa

-Residuary legatee (subd. 3). - If vored in law, because they tend to destroy

there is a residuary bequest made by a will, estates, and no provision in a deed relied

it is subject to the payment of legacies, on to create such a condition will be so both general and specific, and in such case interpreted if the language of the provision

it is unnecessary to determine whether a will bear any other reasonable construc- particular legacy is general or specific.tion.-Victoria Hospital Assn. v. All Per

Estate of Richardson, 6 Cof. Prob. Dec. 354. sons, 169 Cal. 455, 147 Pac. 124. 2. It is not essential to the creation of 8 1369.

condition subsequent that a forfeiture 1. Interest on legacies.—Where a legatee clause should be inserted.-Victoria Hos

ing for distribution, otherwise interest will 3. While no precise form of words is

not be allowed for the period prior to the necessary to create a condition subsequent, decree of distribution.-Estate of Schmierer, the words "on condition" are apt and appro

168 Cal. 747, 145 Pac. 99. priate words both in their technical and 2. At the common law, and under secpopular sense for such purpose, and are tions 1368 and 1369 of the Civil Code, a generally accepted as sufficient to create a

pecuniary legacy bears interest at the legal conditional estate, unless there is something

rate from one year after the demise of the else in the deed indicating the contrary.- testator.-Estate of Redfield, 6 Cof. Prob. Victoria Hospital Assn. v. All Persons, 169 Dec. 368. Cal. 455, 147 Pac. 124.

3. A pecuniary legacy bears interest from

one year after the death of the testator, $ 1351.

where the settlement of the estate is de1. Advancements and ademptions.—The layed, without fault of the administrator, requirements of this code are satisfied if by a contest of the will.--Estate of Redfield, the intention is fairly shown by the writ- 6 Cof. Prob. Dec. 368. ings of the deceased, taken in connection with the circumstances under which such $ 1384. writings were made.-Estate of Baker, 168

1. Succession-What property may pass.Cal. 766, 145 Pac. 1005.

The possessory right of a locator of a min2. Advancements are not to be taken as

ing claim is property which upon his death ademptions of general legacies unless such

passes to his heirs by descent and not diintention is expressed by the testator in

rectly to them as the designated donees or writing.-Estate of Vanderhurst, 171 Cal.

beneficiaries of the United States under the 553, 154 Pac. 5.

mining laws, and such rights may be sub

jected to administration and sold as other $ 1357.

property by the executor or administrator.1. Specific legacies (subd. 1).-A clause Wallace v. Hudson, 170 Cal. 596, 150 Pac. directing the executors "to obtain the sum 988.

a

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