Estate of Pitcairn

[731]

LANGDON, J.

This is an appeal from a judgment admitting a will to probate.

The decedent, Mary Miller Pitcairn, died a resident of Los Angeles County in March, 1934, leaving an estate which was formerly the community property of herself and her previously deceased spouse. The will was offered for probate by respondents, who are the next of kin and the sole legatees. A contest was filed by appellants, who are the heirs of the predeceased spouse of the testatrix. The only ground of contest is that the will was not executed with the formalities required by the statute. The proponents called Alec B. Francis and Jane Alcock, the subscribing witnesses, and their testimony is relied upon by contestants as showing a failure to comply with the statutory requirements. The trial court, however, found in favor of the proponents, and the question is therefore whether there is substantial evidence to support its findings and judgment.

It is clearly established that the will was entirely in the handwriting of the testatrix, with the exception of the

date;

that it was signed by the testatrix; and that it was subscribed by the two witnesses. It did not contain the usual complete form of attestation clause, but in this respect read as follows: “Signed & witnessed by Alee B. Francis 1627 N. Ogden Drive Hollywood Calif. Jane Alcock 1627 N. Ogden Drive Hollywood. ’ ’

The witness Francis testified that the testatrix asked him to sign his name to a paper which she declared constituted her “last wishes” as to where her money was to go when she died. He further testified that Jane Alcock, the other witness, also signed it at the request of the testatrix, but he could not state definitely whether anything was said by the testatrix to Miss Alcock. Miss Alcock testified that she was not in the room when the testatrix signed, and that she was asked to sign “a piece of paper”, without being told that it was a will. It thus appears that from the testimony of the only witnesses to the occurrence there appears a lack of compliance with the statute.

As already stated, the trial court found for the proponents, and its judgment must find support largely, if not wholly, from the presumption of due execution. In addition, there appears some evidence, which need not be detailed, of ad