Estate of Morgan

WASTE, C. J.

Ynez Morgan died leaving an instrument testamentary in character. After a contest, the probate court found it to be a valid holographic will, entirely written, dated, and signed by the testatrix, and made its order admitting the document to probate as the last will and testament of the decedent. From that order this appeal is taken.

[401]

The purported will, made ten months prior to the death of the decedent, was found in her writing-desk among her papers. No signature appears at the end of the document, which is entirely in the handwriting of the decedent. The name, Tnez Morgan, appears twice in the instrument, and the only question before the court on this appeal is whether or not the decedent, by writing her name in either, or both, of said places, thereby “signed” the will. A photostatic copy of the document is here reproduced.

This court has, upon a number of occasions very recently, been called upon to consider the nature of the evidence permissible and sufficient to establish the due execution of a holographic will, where the signing thereof by the testator is not in the customary place at the end of the instrument. The conclusion reached and adhered to in the decisions is that it must be established upon the face of the offered instrument that it is a complete and executed document; that notwithstanding that the usual place of signing,

[402]

and so of evidencing due execution and completeness, is at the end of the instrument, the signature of a testator found elsewhere than at the end may be, if circumstances warrant it, a signature of execration, but that the only evidence which will warrant this conclusion must be found in and on the instrument itself.

(Estate of McMahon,

174 Cal. 423 [L. R. A. 1917D, 778, 163 Pac. 669].) As stated in another case: “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 it 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.”