Estate of Guinasso (1910) · DecisionDepot

Estate of Guinasso

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal May 30, 1910 No. Civ. No. 769.Published

Before: Hall

AI Brief

AI-generated · verify before citing

Holding. The court held that the provisions of a destroyed will were not sufficiently proven because the testimony of one witness regarding the contents of the will was based solely on having heard it read by another person, failing the statutory requirement for two credible witnesses with personal knowledge.

Issues

Whether the provisions of a destroyed will are sufficiently proven by two witnesses when one witness lacks personal knowledge of the contents and relies solely on having heard the will read aloud by the other witness.

Disposition. reversed

Quotations verified verbatim against the opinion

“The legislature never contemplated, when it enacted the requirement that the provisions of a destroyed will must be clearly and distinctly proved by at least two credible witnesses, that one such witness might in effect multiply himself”

“The contents of a writing cannot be proved by the testimony of a person who heard the writing read.”

Synopsis

APPEAL from an order of the Superior Court of the City and County of San Francisco admitting a will to probate. Thomas F. Graham, Judge.

The facts are stated in the opinion of the court.

HALL, J.

This is an appeal from an order admitting to probate the will of Luigi Guinasso, deceased.

The petition for the probate of the alleged will was filed by John W. Bonrdette, and sets forth that the will was destroyed by the great conflagration of April, 1906, which occurred in San Francisco, and also sets forth what purports to be the provisions of the will

in haec verba.

It is also alleged that the testator at the time of his death believed the will to be in existence, and had no notice or knowledge of its destruction.

Appellants are heirs at law of decedent, and in due time filed a contest of the will. The court made findings in favor of the proponent as to all issues raised by the pleadings, and it is the sufficiency of the evidence to support these findings that is attacked by appellants.

In their opening brief three points were made by appellants: First, that the evidence did not support the finding as’to the due execution of the alleged will; second, that the evidence did not support the finding that decedent had no notice or knowledge of the destruction of the will, and that he believed it to be in existence at the time of his death; and third, that the evidence is insufficient to support the finding of the court as to the provisions of the will.

Subsequently, by stipulation filed in this court, appellants waived the first point.

We have examined the evidence as to the second point, and do not think that appellants’ contention can be maintained, but as we think the third point is well taken, we have not deemed it necessary or profitable to review the evidence under the second point.

As before stated, the will was offered as a will destroyed by public calamity. Section 1339, Code of Civil Procedure, provides that: “No will shall be proved as a lost or destroyed will, unless the same is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently, or by public calamity, destroyed in the lifetime of the testator, without his knowledge, nor

[520]

Estate of Guinasso

AI Brief

Synopsis

HALL, J.

More from California Court of Appeal

Related research

AI Brief