Estate of Lee

AGEE, J.

On July 16, 1956, Waters J. Lee and Grace M. Lee, who were husband and wife, went to the office of Sanford Pearl, a notary public. They brought with them an instrument which had been written out in longhand. Both told him that it was their will and asked him to notarize it.

Both affixed their signatures in Pearl’s presence and he then signed it in their presence and attached his jurat.

The instrument as completed is as follows:

“My last will & testament July 16, 1956

“We, Waters J. Lee and Grace M. Lee leave all properties, monies and bonds to the other in the event of one of the above parties demise, or in the event of Death of both to Louis Wing.

“[Signed] Waters J. Lee

“[Signed] Grace M. Lee

“Subscribed and Sworn to before me this 16th day of July 1956

[Signed] Sanford Pearl Notary Public In and for the City and County of San Francisco, State of California “My Commission Expires Jan. 5, 1957.’’

Grace died on September 13, 1962. Waters then married Marcelina on October 15, 1962. Waters died on November 6, 1962.

Louis Wing is the surviving son of Grace. In separate petitions he offered said instrument for admission to probate as the last will and testament of his stepfather and his mother, respectively. Marcelina, as the "widow of Waters, objected to both petitions and each was denied. Louis has appealed separately from the orders of denial.

Marcelina’s objection is based upon the ground that the instrument does not comply with the requirement of section 50 of the Probate Code that, to constitute a valid witnessed will, “[T]here must be at least two attesting witnesses, each

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of whom must sign the instrument as a witness, at the end of the will, at the testator’s request and in his presence. ’ ’

Objector (Marcelina) concedes that the notary qualifies as one of the two witnesses required even though he thought he was signing as a notary. (Cf.