Gunness v. LaMont

GIBSON, C. J.

This is an appeal from an order denying probate of a will, and the sole question to be determined is whether the will was properly attested by two witnesses in compliance with section 50 of the Probate Code.

The instrument, which was typewritten, reads as follows:

“June 19, 1950

‘ ‘ To Whom it May Concern:

“I, Daniel Everett LaMont, do hereby bequeath my estate and its entire residue to my sister, Bella LaMont, of the home address.

“My sister, Bella LaMont, and my nephew, Fred C. Smith, 523 Cecil St., Monterey Park, Calif., whose signatures appear below are to jointly administer the estate without bond. My nephew, Fred C. Smith, is to act as Guardian for my brother, Albert LaMont.

s/ D. E. LaMont

D. E. LaMont

s/ Bella LaMont Witness: s/ Klari Moore

Bella LaMont Address: 1001 So. 1st St.

Alhambra, Calif.

s/ Fred C. Smith Witness : s/ Helen B. Smith

Fred C. Smith Address: 523 Cecil St.

_ Monterey Park,

Notary Public Calif.”

It is conceded that Helen B. Smith is a qualified witness. Klari Moore did not sign as a witness until several days after the will was executed, and because of the circumstances

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under which her signature was affixed, proponents do not claim she qualifies as a witness. Nor do proponents rely upon Bella LaMont as a witness since, if her signature were necessary to due execution, she could not take the entire estate under the will. (Prob. Code, § 51.) Accordingly, the question to be determined is whether Fred C. Smith, whose signature appears on the face of the will, can be counted as a second attesting witness.