Estate of Gooch

211 Cal.App.2d 1 (1962) Estate of HARVEY MATTHEW GOOCH, Deceased. CLARA G. MURPHEY et al., Contestants and Appellants,

v.

LEO VELLUTINI, Proponent and Respondent.

Civ. No. 10504. California Court of Appeals. Third Dist.

Dec. 17, 1962. Tobey, McClure & Lemmon for Contestants and Appellants.

Chisholm & Phillips for Proponent and Respondent.

VAN DYKE, J. [fn. *]

This is an appeal from an order admitting a will to probate over the objection of contestants that the will had not been duly executed. The testator died in Reno, Nevada, being at the time a resident of the County of Amador, California. He was a patient in the Veterans' Administration Hospital in Reno. The will was prepared by an attorney upon information given him by a sister of the testator. The proposed testament was typewritten by the attorney and then presented to the testator for approval and execution. The document as presented to the testator bore a typed signature line, above which was the word "his," and below which was the typed name, "Harvey M. Gooch," and below that the typed work "mark." The attorney who had prepared the document had been informed that the proposed testator was unable to write because of his illness. The document having been explained and read to the testator, he then made his mark in the space prepared therefor and three persons present, including the attorney who had prepared the document, signed as witnesses to the mark. They also executed the attestation clause which was in the usual form. [1] It is the contention of appellants on this appeal that [3] the will was not properly executed in accordance with the statutory requirements.

The formal requirements for the proper execution of a will are prescribed by section 50 of the Probate Code and are as follows: "The will must be subscribed at the end thereof by the testator himself." This was done. (By Code Civ. Proc., 17, and by Civ. Code, 14, "subscription includes mark.") Section 17 of the Code of Civil Procedure and section 14 of the Civil Code provide further that when a subscription is by mark, because of inability of the subscriber to write, the subscriber's name must be written near it by a person who writes his own name as a witness. This also was done. As stated before, the attorney who prepared the will and witnessed the mark wrote the name of the testator near the space prepared for the testator's subscription by mark in which space the mark was made. (The name was typewritten but that was sufficient, for, by Code Civ. Proc., 17, "writing includes printing and typewriting.")