Shumaker v. Wagner

BARNARD, P. J.

This is an appeal from an order denying a petition for the probate of an alleged will. The instrument, the probate of which was refused on the ground that the document was not signed by the deceased, reads as follows:

“3714 5th Ave., San Diego, California, April 9, 29. That I Lovina Bauman, on this date April 9th 1929, desire my wishes herein executed as stated, after my death notify my Cousin J. H. Wagner, 1119, W. P. P. Ave., Colorado Springs, Colorado, have him attend to affairs & all as herein requested. To pay all my expenses from sale of my property, 3714 5th Ave., Lot 11, Block 3, Brooks Add. & he receive $1000. and $500. each to my 2 Nieces and Nephews living in Salem, Oregon. $500. to Presbyterian Church 3 & 4th Date St. San Diego, Cal. Helping Hand Home 1806 J St., $100. and bedding & my clothes. Sell all furniture & if any left divide equally between J. H. Wagner & my 2 Nieces & 2 Nephews when all expenses paid herein is my utmost wishes may they be granted as requested.”

A photographic copy of the document appears in the transcript. It was stipulated that the instrument is entirely in the handwriting of the deceased, and the only question presented is whether or not it was signed by Lovina Bauman within the meaning of section 1277 of the Civil Code.

The rules governing the decision of such a question are well established, although their application in a particular case often presents a close question. As expressed in

Estate of Manchester,

174 Cal. 417 [Ann. Cas. 1918B, 227,

[553]

L. R. A. 1917D, 629, 163 Pac. 358], and frequently followed since, the general rule is:

“The true rule, as we conceive it to be, is that, wherever placed, the fact that it was intended as an executing signature must satisfactorily appear on the face of the document itself. If it is at the end of the document, the universal custom of mankind forces the conclusion that was appended as an execution, if nothing to the contrary appears. If placed elsewhere, it is for the court to say, from an inspection of the whole document, its language as well as its form, and the relative position of its parts, whether or not there is a positive and satisfactory inference from the document itself that the signature was so placed with the intent that it should there serve as a token of execution. If such inference thus appears, the execution may be considered as proven by such signature.”