Estate of Braue

PETERS, P. J.

Contestants appeal from an order admitting a witnessed will to probate over their objection that it had not been properly executed as required by section 50 of the Probate Code. The other grounds of contest were dismissed at the trial.

Proponent is the wife of decedent, whom he married on February 20, 1936. The questioned document is dated April 8, 1936. Contestants are the sister of decedent, and one of his two daughters by a previous marriage. By the will he left his sister and each of the daughters $1, leaving the balance of the estate to his wife. The petition for probate alleged that the value of decedent’s property did not exceed $3,000.

As shown by the evidence, the will was signed by the testator, and by three witnesses, Harry E. Pahl, C. J. Tracy and Irving L. Pahl. Opposite the signatures of the three witnesses on the typed will, is typed a complete attestation clause. The proponent, the wife of the deceased, testified that she- typed the will at the deceased’s request on the Sunday before it was executed, in Chico; that she used as a form a, copy of an earlier will of her husband by which the bulk of his estate was left to the contesting sister; that on the date the will was executed her husband brought it home fully executed and gave it to her; that at the time she typed the will she also typed the attestation clause opposite the lines placed on the document for the signatures of the testator and of the attesting witnesses; that the attesting witness Irving L. Pahl, some time after the will was executed, told her, in a “kidding” way, that he had witnessed her husband's will.

The testimony of the three attesting witnesses was taken by deposition. Harry E. Pahl testified that he was an

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automobile dealer in Chico; that at the time the will was executed decedent kept the accounts for the company; that the decedent remained with the witness’ firm for six months to a year after the deceased married proponent; that after the marriage, the decedent began to drink to excess, and that this habit grew steadily worse. lie identified the signature on the will as his. He could not positively state the circumstances under which he signed the document, but he did recollect that on or about the date the will was executed, the decedent brought him a paper which he now believes was the will in question so folded that only the words, "In Witness Whereof, I have hereunto set my hand and seal this 5th day of April, 1936”, followed by the deceased’s signature, appeared; that the decedent asked him to sign the document as a witness; that the witness protested against signing a document without knowing what it was; that the decedent assured the witness that the document was personal to the decedent and would not affect the witness in any way; that he was positive that there was no attestation clause on the document when he signed it; that the decedent did not inform him that the instrument was his will; that he signed the document in the presence of the testator, but that neither of the other two witnesses was present at the time.