In Re Estate of Dreyfus

SHAW, J.

Philip Herbold filed a petition for the admission to probate of a document, as the last will of the decedent, Gustav Dreyfus. The petition alleges that this paper was not attested by any witness, that it was wholly in typewriting, except the signature of the decedent thereto, that said signature was written by the decedent with pen and ink, and that the remainder of the document, including the proper date, was written by the decedent himself by the manipulation of a typewriting machine. The evidence was to the same effect. Thereupon the court, below made its order refusing to admit the document to probate as a will. Prom this order the petitioner and said Maurice Blumlein, the latter being the sole beneficiary under the purported will, have appealed.

Our code requires that an olographic will shall be “entirely written, dated, and signed by the hand of the testator himself.” (Civ. Code, sec. 1277.)

To ascertain the meaning of this requirement we must look to the reasons which led to its enactment, the conditions then existing, and the object sought to be attained thereby. Originally, in England, by the ecclesiastical law and the common law, wills could be made by oral declaration.

(Gould

v.

Safford,

39 Vt. 505;

Ex parte Thompson,

4 Bradf. Sur. (N. Y.) 154;

Harrington

v.

Stees,

82 Ill. 50, [25 Am. Rep. 294]; 30 Am. &

Eng.

Ency. of Law,

560.)

This was found to be so fruitful of fraud and perjury that the statute of frauds was enacted providing that nuncupative wills could be made only by persons in their last sickness, to be proved by three witnesses, or by soldiers in service or mariners at sea, and that in all other cases a will must be a signed writing, attested and subscribed by at least three credible witnesses. Statutes prescribing the manner of executing wills of all kinds and the degree of proof necessary to establish them have for their prime object the prevention of frauds and perjuries, or, as the supreme court of Louisiana puts it, “to prevent imposition and abuse.”