Estate of Tracy

McCOMB, J.

From an order denying proponent’s petition for admission of an alleged will to probate, she appeals.

Conceded Fads

On July 18, 1945, Nell B. Tracy executed her last will and testament in which proponent, Janice Lehman, was designated a beneficiary. On September 30, 1945, Nell B. Tracy executed an instrument purporting to revoke her will. She died October 14, 1945.

The probate court held that the instrument which purported to be a revocation of decedent’s will was executed in aeeord

[783]

anee with the requirements of section 74 of the Prohate Code.

Questions

There are two questions presented for our determination which will be stated and answered hereunder seriatim:

First -.

Bid the witnesses to the document which purported to revoke decedent’s will sign it in the “presence” of decedent9

This question must be answered in the affirmative. The evidence discloses that at the time decedent signed the revocation she was suffering from cancer and confined to her home in a small bedroom about 9 by 12 feet in size. She stated to her nurse, Eeba Thornton, and a neighbor, Leora B. Blot, that she desired to revoke her will and requested Miss Thornton and Mrs. Blot to sign as witnesses. They received the instrument from her after witnessing decedent sign the same, and hearing her declare that it was her signature and that she desired to revoke her former will. Since there was no place in the room where the witnesses could conveniently sign the revocation, decedent directed them to take it into the adjoining dining room and sign on the table there. In accordance with these instructions the witnesses walked some 20 feet to the dining room table and affixed their signatures to the revocation. The testatrix could see into the dining room and hear the witnesses in conversation, but could not actually see the act of signing. After they had signed the document Mrs. Blot returned to the bedroom where decedent expressed her satisfaction at having revoked her will.

Section 74 of the Probate Code provides that a will may be revoked by a writing executed with the same formalities as are required for the execution of a will. Section 50 of the Probate Code provides as one of the requirements for the execution of a will that it be signed by at least two witnesses in the testator’s “presence.” “Presence” is defined in Webster’s New International Dictionary, second edition, 1939, page 1955 thus: “The part of space within one’s ken, call, influence, etc.; immediate nearness or vicinity of one; proximity.”