Lundblade v. Avery

WARNE, J. pro tem.

*

This is an appeal from an order denying probate of a testamentary instrument purporting to be the holographic last will and testament of Amelia E. Carson, deceased.

The instrument was denied probate upon the ground that it is “not dated” by the deceased within the meaning of section 53 of the Probate Code defining a holographic will.

The instrument was written by and entirely in the handwriting of the deceased but the date of its execution reads: “May 1948.” Thus the day of the month is omitted. The only question for solution is whether “May 1948” consti

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tutes a date within the meaning of section 53 of the Probate Code. The section provides, in part: “A holographic will is one that is entirely written, dated and signed by the hand of the testator himself. It is subject to no other form, and need not be witnessed.”

In construing this section our appellate courts have uniformly held that the day, month and year must be designated and that specification of the month and year is insufficient.

(Estate of Price,

14 Cal.App. 462 [112 P. 482], and cases cited therein;

Estate of Maguire,

14 Cal.App.2d 388, 389-390 [58 P.2d 209];

Estate of Fritz

(1951), 102 Cal.App.2d 385 [227 P.2d 539].) Petition for hearing by the Supreme Court was denied in each of the foregoing cited cases.

Appellant concedes that the decision in the

Estate of Fritz, supra,

is adverse to the position taken by him. However, he contends that the law should be reexamined and modified with respect to the “entirely dated” policy rule where there is evidence of an undisputed intention to execute a testamentary document and dispose of one’s property; that “the policy rule should be modified by holding that ‘ entirely written, dated and signed ’ means in regard to the date that the month and year is ample.” The answer to appellant’s contention is found in