In Re Estate of Major

TYLER, P. J.

Appeal from an order admitting a will to probate. The sole question here presented is whether or not the instrument so admitted constitutes a holographic will. It reads as follows:

‘ ‘ San Francisco, California “Dee. 12, 1924.

“Mr. Oscar Major “Dear Nephew,

“In reply to your letter i received last week i must tell yon that i am very well and hope your the same i must tell you that i will go to St. Andre before long and i take up with me the copy of my testament you ask me for but be sure i have not change my idea your are to be the owner of the hold thing i am worting about $15,000 to $16,000 dollar

“your uncle

“Arthur Major.”

The evidence introduced in support of the petition established that Arthur Major was a resident of and died in the city and county of San Francisco, California, on the fifteenth day of February, 1926, leaving an estate of the approximate value of $12,000, and leaving surviving him as his next of kin and heirs at law a brother, Joseph Edward Major, and a sister, Catherine Robertson; that the above recited instrument submitted for probate was sent to Oscar Major through the mail by his uncle, Arthur Major, the decedent, in the month of December, 1924, and that such instrument was entirely written, dated and signed in the handwriting of the deceased. No evidence was introduced as to testamentary capacity of the deceased. The court found among other facts that deceased was, at the date of the execution of the instrument in question, of sound and disposing mind and that the letter was testamentary in character. As conclusions of law it was determined that it constituted a holographic will and it was accordingly admitted to probate. Appellant contends that the findings are

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not supported by the evidence; that the conclusions of law are erroneous, as is also the order admitting the instrument to probate. We are of a like opinion.

Primarily it may be said that in the construction of wills the cardinal rule to be observed is to ascertain the intent of the testator, and if that intent can be clearly conceived, and is not contrary to some positive rule of law, it must prevail. In the ascertainment of this intent, however, courts cannot make a will for a testator or attempt to improve upon the will which the testator actually made. It follows that a testator’s intention must in all cases be ascertained from the words which he employs in his will, together with such extrinsic evidence as may be admissible. The question always before the mind of the court is not what the testator should have meant to do, or what words did he mean to use, but what did he mean by the words which he actually used. In cases where doubt arises as to whether the instrument is a will or of some other character, the true test is whether the maker executed the document with