Estate of Norswing

BARNARD, P. J.

Knute B. Norswing died on November 7, 1939. On August 1, 1939, he executed a will which consisted solely of a revocation of all former wills, and in which he stated that this was done to the end that all of his property should descend to his legal heirs. This will was witnessed by H. Ustick and W. E. Askin. On August 3, 1939, he executed another will leaving his entire estate to his wife, which will was admitted to probate.

Thereafter, a petition was filed on behalf of a sister and a nephew of the deceased asking for the probate of a purported will “bearing incorrect date of 1st day of August; 1939” and alleged to have been “executed on or about August 15th, 1939,” and asking that the probate of the will of August 3, 1939, be revoked. A contest was filed by the widow of the deceased. A hearing was had and the court found in favor of the contesting widow, finding, among other things, that “said decedent did not by his conduct or by his

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acts or by any declaration in words at any time declare that said document was his will.” A judgment was entered accordingly and the sister and nephew have appealed.

The sole question presented is whether the evidence sustains the court’s finding to the effect that the offered document was not executed with the formalities required by subdivision 3 of section 50 of the Probate Code, which reads as follows: 1 ‘ The testator, at the time of subscribing or acknowledging the instrument, must declare to the attesting witnesses that it is his will.”

The offered instrument, except for signatures, is a carbon copy of the typewritten portion of the will which the decedent had executed on August 1, 1939. It consists of one sheet of paper, has the word “Will” at the top, is dated August 1, 1939, and has an attestation clause which bears no date. It has the signature of the decedent in the usual place and below the attestation clause it was signed by two witnesses, PI. Ustick and J. P. Kenney.

There is no dispute as to the circumstances surrounding the execution of the offered document. On or about August 15, 1939, Kenney, who was employed by the deceased, took him to a barber shop in Fullerton. The decedent told Kenney to go over and see if Ustick was in his office as he wanted to see him. Kenney did so and on his return accompanied the decedent to Ustick’s office. Kenney had not the “slightest idea” why the decedent wanted to see Ustick and the decedent said nothing to him in that connection. Ustick testified that when the others arrived at his office and in the presence of himself and Kenney the decedent said: “I want you to witness my signature”; that the decedent took from his pocket the document in question and handed it to Ustick, folded; that he, Ustick, unfolded the document and, after looldng over it hastily, said to the decedent: “Mr. Norswing, this is a carbon copy of the instrument you signed two or three weeks ago”; that the decedent replied: “Yes, I know it”; that he then said: “Mr. Norswing, we can’t change the dates on that”; that the decedent replied: “Okay, I don’t want them changed”; that during this conversation both attesting witnesses were present and understood fully the words of the decedent; and that after this conversation the decedent signed the instrument, after which both Ustick and Kenney also signed. He further testified that on that occa