Griffith v. California Christian College

BARNARD, P. J.

Maria L. Harris died on July 2, 1933. Two separate instruments were offered for probate as her

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last will by the executors named in both. Each of these •instruments consisted of three pages, was dated May 8, 1915, was in the form of a will and was entirely written, dated and subscribed by the decedent. The instruments were largely alike but they were not duplicates. Each purported to give the same amounts to certain relatives and other amounts to certain religious and charitable organizations. In addition to minor differences in wording and in punctuation the instruments differed materially in that one contained some five bequests of $500 each to named individuals which were not in the other, while the other contained one bequest of a similar amount which does not appear in the first. One instrument, introduced as exhibit 1, contained the word “copy” in the handwriting of the deceased near the top of the first page and was found, after the death of decedent, in a small sealed envelope addressed to Mr. Horatio J. Forgy at an address in Santa Ana. This envelope, also having upon it the word “copy” in the handwriting of the deceased, was found among some letters and receipts in a drawer of a desk which had belonged to her. The other instrument, introduced as exhibit 2, had the word “copy” in the handwriting of the deceased near the top of each of its three' pages. This instrument, in a small sealed envelope addressed to Mr. Horatio J. Forgy, was found in the middle of a bundle of duplicate income tax reports of the decedent by an officer of a bank who testified that the bundle had been brought to the bank, after the death of the deceased, by one of her nieces.

A contest was filed by certain heirs and the matter was submitted to a jury upon the issue as to whether either or both of the instruments in question had been executed by the deceased with testamentary intent. The verdict was in favor of the contestants and judgment was entered in accordance therewith, from which judgment this appeal was taken by the religious and charitable institutions named as beneficiaries in the offered instruments.

Appellants’ first contention is that the fact that each of these instruments, although otherwise entirely sufficient to constitute an holographic will, was plainly and carefully marked “copy” by the supposed testator presents only a question of law which should not have been submitted to the jury. It is argued that each instrument is, in itself, complete evidence of the intention of the writer thereof; that