6. The tests of testamentary capacity are: 1. Understanding of what the testator or testatrix is doing; 2. How he or she is doing it; 3. Knowledge of his or her property; 4. How he or she wishes to dispose of it; and 5. Who are entitled to his or her bounty.Estate of De Laveaga, 6 Cof. Prob. Dec. 55.

7. It is not enough that the testator or testatrix have a mind sufficient to comprehend one of the above elements; his or her mind must be sufficiently clear and strong to perceive the relation of the various elements to one another, and he or she must have at least a general comprehension of the whole.-Estate of De Laveaga, 6 Cof. Prob. Dec. 55.

8. A testator or testatrix need not be expected to know the exact legal scope and bearing of his or her will, but should have sufficient faculty to understand generally his or her circumstances and natural obligations. The age of eighteen years in this state is fixed as the minimum limit at which that faculty is developed in a normal nature; in some other states and countries it is twenty-one.-Estate of De Laveaga, 6 Cof. Prob. Dec. 55.

9. Under the statutes of California every person over the age of eighteen years may by last will dispose of his or her estate, provided he or she is of sound mind and free from undue influence, duress, or fraud. -Estate of De Laveaga, 6 Cof. Prob. Dec. 55. 10. Execution of will.-Proof of spontaneous action on the part of a testator will be required where his wishes upon the execution of his will are manifested by signs made in response to questions.-Estate of Clark, 170 Cal. 418, 149 Pac. 828.

11. The fact that a testator makes his wishes known partly by pantomime and partly in answer to questions, and that the mechanical work of affixing his name to the will was performed by others, is not sufficient to invalidate the instrument.-Estate of Clark, 170 Cal. 418, 149 Pac. 828.

2. Construction—Subdivision 1.-The statute does not require that the testator's signature shall occupy any specific place with reference to the signatures of the witnesses. -Estate of Dutcher, 172 Cal. 488, 157 Pac. 242.

3. The name of the testator written a short distance below the body of the will is subscribed "at the end thereof."-Estate of Dutcher, 172 Cal. 488, 157 Pac. 242. 4.

-Subdivision 3.-It is not necessary that the testatrix should have spoken words declaring the document to be her will, or that she should expressly request the witnesses to sign it as such, as the same may be implied from her conduct and the attendant circumstances.-Estate of Cullberg, 169 Cal. 365, 146 Pac. 888.

5. An order denying probate of a will on the ground that the testatrix did not declare to the attesting witnesses that the instrument was her will, and that she did not request the witnesses to sign as such, is erroneous, where it is shown that the will and also the attestation clause were both read aloud to the testatrix, whereupon the person acting for her indicated the place for her signature, and after such signing, he asked the witnesses to sign, which they did, the testatrix having remained silent during the entire proceeding.Estate of Cullberg, 169 Cal. 365, 146 Pac. 888. 6. Subdivision 4.—Oral testimony is admissible to show that the testator signed first and that the witnesses then signed.Estate of Dutcher, 172 Cal. 488, 157 Pac. 242.

§ 1277.

1. Holographic will—Sufficiency.—A document wherein the first line was "Winters Yo lo Co 10 1912" is insufficiently dated to comply with this section.-Estate of Carpenter, 172 Cal. 268, L. R. A. 1916E 498, 156 Pac. 464.

2. The general rule that the provisions of the code "are to be liberally construed with a view to effect its objects" has never been stretched to excuse lack of substantial compliance with the statutory requirement that a holographic will must be dated by the testator.-Estate of Carpenter, 172 Cal. 268, L. R. A. 1916E 498, 156 Pac. 464.

3.

A holographic will which is not dated except in the following manner: "I have subscribed my name and affixed my seal this 22nd day of March, in the year of our Lord one thousand," does not comply with the requirements of section 1277 of the Civil Code, defining holographic wills.-Estate of Vance, 174 Cal. 122, 162 Pac. 103.

4. A date which is incomplete because of lacking a statement of either the day, the month or the year of execution does not satisfy the statutory definition of a holographic will. But the instrument, if it bears a statement of the day, the month and the year, is not invalidated because one or more of these elements may be incorrectly given.-Estate of Vance, 174 Cal. 122, 162 Pac. 103.

2. Personal property of a nonresident testator is subject to distribution under the laws of this state where the property is situated in this state at the time of the testator's death, and the provision of section 1313 of the Civil Code limiting the amount which a testator may give to charitable purposes to one-third of his estate is applicable to the distribution of such property, notwithstanding the state of the testator's domicile has no law making such a limitation.-Estate of Sloane, 171 Cal. 248, 152 Pac.

540.

3. It is only where there is no residuary bequest to charity that the rule of pro rata deductions applies.-Estate of Sloane, 171 Cal. 248, 152 Pac. 540.

4. Where the sum of six thousand three hundred and thirty-four dollars and forty cents represents all of an estate that can be distributed to charitable purposes, and the will contains two charitable bequests, one a specific bequest of four thousand dollars and the other the bequest of the residue, the distribution of the specific bequest in full, without reduction, and of the residue to the other legatee, is correct. Estate of Sloane, 171 Cal. 248, 152 Pac. 540.

§ 1317.

1. Interpretation of wills — Intention of testator governs.-The court must look to the purpose of the testator and endeavor to construe the words of the will, if reasonably possible, upon principles that admit of a compliance with that purpose.-Estate of Budd, 166 Cal. 286, 135 Pac. 1131.

2.

Words in a will expressing desire or wish, when directed to the estate, not to some devisee with respect to the property received by him, are to be deemed as dispositive expressions evincing the will of the testator with respect to the property.Estate of Tooley, 170 Cal. 164, 149 Pac. 574. 3. The paramount object in resolving an ambiguity in a will is to ascertain the intention of the testator. All other of the established rules of construction are designed to assist in this main object. But the intention sought for is not that which may have existed in the mind of the testator, but that which is expressed in the language of the will, giving such language, if clear, its ordinary meaning, and if ambiguous, the meaning it should have, in the light of the context and the circumstances shown to explain the meaning.-Estate of Sessions, 171 Cal. 346, 153 Pac. 231.

4. In the construction of wills the intention of the testator must govern, and in order to carry out this, as collected from the context, words may be, when necessary, supplied, transferred or changed.-Estate of Espitallier, 6 Cof. Prob. Dec. 299.

5. A bequest to the "United Charities of San Francisco" will be given effect as a bequest to "The Associated Charities of San Francisco," there being no institution in San Francisco bearing the name "United Charities," it being evident that the testator had in mind a union or association of charitable organizations in the city, but that he

mistook the name while retaining the idea. -Estate of Irwin, 6 Cof. Prob. Dec. 359.

§ 1318.

1. Ascertaining intention from context of will.-The word "children" in a will has been held to include grandchildren only, where there is an ambiguity in the will itself which leaves the meaning of the testatrix in respect to the word "children" uncertain, in which case extrinsic evidence may be introduced to explain the meaning intended by the testatrix and to show that the word was used to include "grandchildren," and where there is a latent ambiguity, as where the will purports to make a gift to "children" and it appears that none were living at the execution of the will, or afterward, in which case extrinsic evidence may be given showing "grandchildren" were intended.-Estate of Willson, 171 Cal. 449, 153 Pac. 927.

2. In interpreting paragraphs of a will the intention of the testatrix must be found in the context, and it must accord with the law. The question is not what she meant, but what her words mean; and the intention must clearly appear to be lawful.-Estate of Willson, 6 Cof. Prob. Dec. 34.

3. In determining the intention of a testatrix the court can consider the circumstances surrounding the execution of the will only when inconsistencies or ambiguities in the language used make the intention as declared by the will doubtful.Estate of Willson, 6 Cof. Prob. Dec. 34.

4. The inadvertent omission of a word will not be allowed to defeat a will if the intention of the testator can be discovered from the entire document, and a reasonable reading of its text, and a consideration of all the circumstances.-Estate of Espitallier, 6 Cof. Prob. Dec. 299.

§ 1319.

1.

Canons of construction.-In interpreting wills courts are bound to carry out canons of construction, no matter how technical they may seem to those who have not studied their philosophy, and one of these rules is, most imperatively imposed, that courts must stand by the words of the will. -Estate of Willson, 6 Cof. Prob. Dec. 34.

2. A will drawn by a person not educated in the ordinary sense, nor skilled in the use of legal formulae, is not to be treated with the strictness that is applied to the work of a professional draftsman.Estate of Espitallier, 6 Cof. Prob. Dec. 299.

$1320.

1. Will on several sheets of paper-Former will. Three sheets of paper of the same size and character of paper, apparently torn from the same writing pad, arranged in proper sequence, and each containing a writing of testamentary character entirely in the handwriting of the testatrix may be read as a part of a harmonious, homogeneous, holographic will and not the

1. Devise of what interest.-A bequest in a will of all the testator's "interest in the estate" of a named decedent will be construed to pass not only such interest as vested in him as a beneficiary of such estate, but also such further interests as he may have acquired in the property thereof by succession or bequest from other beneficiaries, where such estate was in process of administration at the time of the death of the testator, and his interests therein constituted the whole of the property left by him.-Estate of O'Gorman, 6 Cof. Prob. Dec.

1. Bequest to employees.-Under the provision of a will bequeathing the sum of $1,000 each to all employees of a lime and cement company "now working" for such company, "who have been in said employ for twenty years," and the sum of $500 each to all employees "who have worked over ten years,-in all cases these dates are as of January 1st, 1911," it is not the intention of the testator that in order to be the recipient of his bounty that an employee, in addition to showing that he had worked for the period of years required, should show that he was actually working on the 1st day of January, 1911, since it is to be assumed that the testator knew by the custom of the company and the character of the day that the employees would not be actually working on that day.-Estate of Cowell, 170 Cal. 364, 149 Pac. 809.

2. An employee who had worked up to January 1, 1911, and had been paid off with the other employees on the last of December, 1910, pursuant to the custom of the company, is an employee within the meaning of the provision of the will, notwithstanding the company was not further obliged to employ him unless it saw fit to do so.-Estate of Cowell, 170 Cal. 364, 149 Pac. 809.

§ 1340.

MISTAKES AND OMISSIONS.

1, 2. Latent ambiguity.

3. Mistake in designation of beneficiary. 4, 5. Omission of dollar mark.

1. Latent ambiguity.—Where the meaning of the will on its face, taking the words in the ordinary sense, is entirely clear, and where no latent ambiguity is made to appear by extrinsic evidence, there can be no evidence of extrinsic circumstances to show that the testatrix intended or desired to do something not expressed in the will.-Estate of Willson, 171 Cal. 449, 153 Pac. 927.

2. That the word "children" was meant to include grandchildren can be established under this section only where there is a latent ambiguity.-Estate of Willson, 171 Cal. 449, 153 Pac. 927.

3. Mistake in designation of beneficiary.— Where a testator makes a bequest to a body or society which he designates in his will as "The Woman's Christian Temperance Union of Los Angeles," and it appears that such designation does not describe exactly either one of three different corporations who appear to claim the legacy, parol evidence is admissible to determine which corporation

was intended.-Estate of Little, 170 Cal. 52, 148 Pac. 194.

4. Omission of dollar mark.-If, in a will in the French language, there is an absence of express words or signs indicating the sort of money to which numerical figures used have reference, in respect of legacies, the word "dollars" or "francs" may be read into the will according to the aptness of either in the opinion of the court, judging from the connection and the circumstances.Estate of Espitallier, 6 Cof. Prob. Dec. 299. 5. The omission of the dollar mark before the figures of a legacy is frequent in wills, and is implied by courts construing them.Estate of Espitallier, 6 Cof. Prob. Dec. 299.

§ 1341.

1. When devise vests.-A devise that property "shall become and be" the property of the legatee on reaching his majority fixes the time of enjoyment rather than the time of taking title. The presumption of this section aids in the interpretation of the words.-Estate of Budd, 166 Cal. 286, 135 Pac. 1131.

§ 1349.

1. Condition subsequent not favored.Conditions subsequent in deeds are not favored in law, because they tend to destroy estates, and no provision in a deed relied on to create such a condition will be so interpreted if the language of the provision will bear any other reasonable construction.-Victoria Hospital Assn. v. All Persons, 169 Cal. 455, 147 Pac. 124.

2. It is not essential to the creation of a condition subsequent that a forfeiture clause should be inserted.-Victoria Hospital Assn. v. All Persons, 169 Cal. 455, 147 Pac. 124.

3. While no precise form of words is necessary to create a condition subsequent, the words "on condition" are apt and appropriate words both in their technical and popular sense for such purpose, and are generally accepted as sufficient to create a conditional estate, unless there is something else in the deed indicating the contrary.Victoria Hospital Assn. v. All Persons, 169 Cal. 455, 147 Pac. 124.

$1351.

1. Advancements and ademptions.-The requirements of this code are satisfied if the intention is fairly shown by the writings of the deceased, taken in connection with the circumstances under which such writings were made.-Estate of Baker, 168 Cal. 766, 145 Pac. 1005.

2. Advancements are not to be taken as ademptions of general legacies unless such intention is expressed by the testator in writing.-Estate of Vanderhurst, 171 Cal. 553, 154 Pac. 5.

§ 1357.

1. Specific legacies (subd. 1).—A clause directing the executors "to obtain the sum

of $5000.00 from my share of Dr. Dempster's estate and place it in the care of the Methodist Episcopal Conference," etc., standing alone falls within the definition of a specific legacy under subdivision 1 and not that of a demonstrative legacy under subdivision 2.-Estate of Goodfellow, 166 Cal. 409, 137 Pac. 12.

2. Specific legacies are not favored by the law, and in cases of doubt legacies are held general or demonstrative, rather than specific; the reason for this is that specific legacies are not liable for the debts of the testator, and on the other hand they fail or are adeemed if the thing or fund is not in existence at the time of the death of the testator.-Estate of O'Gorman, 6 Cof. Prob. Dec. 245.

3. A devise of an interest in an estate of a deceased person is specific.-Estate of O'Gorman, 6 Cof. Prob. Dec. 245.

§ 1359.

1.

Resort to estate to pay debts-Construction.-Whether there is any conflict between this and section 1563 of the Code of Civil Procedure is raised, but not determined.-Estate of Bernal, 165 Cal. 223, Ann. Cas. 1914D 26, 131 Pac. 375.

2. Residuary legatee (subd. 3). — If there is a residuary bequest made by a will, it is subject to the payment of legacies, both general and specific, and in such case it is unnecessary to determine whether a particular legacy is general or specific.Estate of Richardson, 6 Cof. Prob. Dec. 354.

§ 1369.

1.

Interest on legacies.-Where a legatee claims interest on the legacy the claim therefor should be asserted in the proceeding for distribution, otherwise interest will not be allowed for the period prior to the decree of distribution.-Estate of Schmierer, 168 Cal. 747, 145 Pac. 99.

2. At the common law, and under sections 1368 and 1369 of the Civil Code, a pecuniary legacy bears interest at the legal rate from one year after the demise of the testator.-Estate of Redfield, 6 Cof. Prob. Dec. 368.

3. A pecuniary legacy bears interest from one year after the death of the testator, where the settlement of the estate is delayed, without fault of the administrator, by a contest of the will.-Estate of Redfield, 6 Cof. Prob. Dec. 368.