LENNON, J., Dissenting.
I dissent. The will in question was not, in my opinion, executed in keeping with the requirements of section 1276 of the Civil Code. That section provides, among other things, that every written will, other than a holographic will, must be signed by two attesting witnesses, who must affix their signatures
at the end of the will.
The document admitted to probate as the last will and testament of Giovanni Moro is typewritten and consists of three sheets of paper, eight and one-half inches wide and thirteen inches long, fastened together at the top by staples. The dispositive clauses completely fill the first page. A concluding paragraph consisting of four lines appears at the top of the second page and is immediately followed by the signature of Moro. The remainder of the second page, a space of about eight inches, is blank. The usual attestation clause followed by the signatures of the attesting witnesses appears at the top of the third page and occupies altogether a space of about five inches.
The
Estate of Seaman,
146 Cal. 455, [106 Am. St. Rep. 53, 2 Ann. Cas. 726, 80 Pac. 700], is the leading case in California on the question of what is meant by the words “at the end of the will” as they are used in section 1276 of the Civil Code. The decision in that case is fully in accord with the New York cases construing a similar statute. ’The law is stated by the court in that case as follows:
“The provision that the will must be subscribed at the end thereof requires the testator’s name to be written at the termination of the testamentary provisions which he
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makes in the instrument. The ‘will’ at whose end the name is to be subscribed is not the sheet of paper or other material upon which these testamentary provisions are written, but it is the declaration which the testator has written thereon for such testamentary disposition, and the ‘end thereof’ is not the foot or physical end of the sheet of paper upon which the ‘will’ is written, but is the physical termination of the testamentary provisions which constitute the will. ... ‘To say that where the name is, there is the end of the will, is not to observe the statute. That requires that where the end of the will is, there shall he the name. It is to make a new law to say that when we find the name, there is the end of the will. . . .’
(Sisters of Charity v. Kelly,
67 N. Y. 409;
Matter of O’Neil’s Will,
91 N. Y. 522;
Matter of Andrews’ Will,
162 N. Y. 1, [76 Am. St. Rep. 294, 48 L. R. A. 662, 56 N. E. 529].)
“The requirement that the name shall be subscribed
‘at’
the end of the will is not satisfied by having that name written at any place ‘after’ the termination of the written matter, irrespective of the relation which such place bears to the concluding portion of the will. This provision does not, however, of necessity require that it shall be in immediate juxtaposition with the concluding words of the instrument, but that it shall be so near thereto as to afford a reasonable inference that the testator thereby intended to indicate an authentication of the instrument as a completed expression of his testamentary purposes. It must appear upon the face of the instrument not only that he intended to place it at the end of his testamentary provisions, but that he has in fact placed it in such proximity thereto as to constitute a substantial compliance with this requirement of the statute. "While a slight space, such as a single line, or even more, might be left blank between the written matter and the name without impairing the validity of the will, yet to leave blank an entire page between the two would
indicate a disregard
of the requirements of the statute, whether resulting from ignorance or intention, which should prevent its admission to probate. (See
Soward
v.
Soward,
1 Duval (Ky.), 126.)’’
In the
Estate of Seaman, supra,
.as in the -instant case, several New York authorities were urged upon the court by the proponent of the will. Of these
Matter of Gilman,
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38 Barb. 364, may be taken as representative. In the last-mentioned ease the written matter of the will terminated four lines above the bottom of the page where the testator signed his name. The court said: “An instrument is signed at the end when nothing intervenes between the instrument and the subscription. The place named in the statute is the end. The end of an instrument in writing commences and continues until something else or some other writing occurs.” Referring to the quoted words this court said: “This language may have been appropriate to the will then before the court, but as a construction to be given to the statute it does not meet with our approval, and is moreover inconsistent with the construction given in the above cases cited from the court of appeals of that state [New York]. Particularly do we dissent from the definition of ‘end’ as given in the last sentence of the quotation.”
(Estate of Seaman, supra.)
Applying the reasoning of
Estate of Seaman to
the instant case, it is manifest that the attesting witnesses did not sign “at the end of the will” within the meaning of the statute. In that case the court opinion, which, of course, states the law of the case, distinguishes between the “will,” or declarations of the testator, and the physical substance upon which the will is written. According to the reasoning of that opinion it is not sufficient for a signature to a will to be affixed at any place between the termination of the written matter and the physical end of the material substance which contains the writing; in order to be at the “end” of the will, the signature must be placed at the close of the testamentary provisions. The signature must be affixed in such relation to the place which bears the concluding portion of- the will as to afford a reasonable inference that the signature was intended to indicate an authentication of the instrument as a completed expression of the testamentary purposes or, in the case of a witness, as an attestation of the execution of the will. But that alone is not sufficient. Irrespective of the indication of intent, it must appear that the signature was in fact placed in such proximity to the end of the
testamentary provisions
as to constitute a substantial compliance with the statute. A slight space might be left between the signature of the testator and the signatures of the witnesses, “such as a single
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line or even more,” as stated in
Estate of Seaman.
Here, however, there is a space consisting of two-thirds of a page “a space considerably more than sufficient in size to have permitted the insertion therein of the attestation clause and signatures of witnesses.” The signatures were placed at the top of a different and subsequent page. While the witnesses signed the last of several pages containing a will and there was no writing following the signatures of the witnesses, they did not sign- at the termination of the testamentary provisions. Therefore, there has not been in fact an observance of the provisions of section 1276 of the Civil Code as that section has heretofore been interpreted by this court.
It is true that the question determined in the
Estate of Seaman
related to the position of the signature of the testator. But the requirement of the statute as to the position of the signatures of the witnesses and the signature of the testator is the same. Under the doctrine of the Seaman case, we would be constrained to declare the will void had the signature of Moro been placed on the third page where the signatures of the witnesses appear. The same language in the same statute cannot be given two totally different interpretations. “It is a requirement of the statute that both the testator and the
witnesses
must sign at the end of the will. Wherever the will ends, there the signatures must be found, and one place cannot be the end for the purpose of subscribing by the testator and another place be the end for the purpose of signing by the
witnesses.” (Estate of Hewitt,
91 N. Y. 261.)
.Athough appellant does not rely' upon any circumstance of fraud in the execution of the will, it may not be amiss to note that the will was not written upon a connected printed form but was typewritten upon several separate sheets of paper, the sheet containing,the attestation clause having no connection, physical or otherwise, with the preceding sheets until it was stapled to .them. It is not even numbered. It may be noted, moreover, that, while in the will itself the testator is referred to as Giovanni Moro, this being the name which is signed to the will, the testator is referred to in the attestation clause as John Moro. These circumstances are mentioned not for the purpose of indicating the probability of fraud in this particular case,
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but to illustrate the undoubted possibilities of fraud, which it is the very purpose of the statute to prevent, should it be held that a will was duly executed where it appeared that the attestation clause and the signatures of the witnesses were placed upon a separate and independent sheet of paper, regardless of intervening space. For all that appears from the document itself, the paper containing the attestation clause may have been attached to the other sheets composing the document months after the signature of the testator was affixed.
Nor is it material-that there may have been no fraud in fact in the instant case. “It would have been wholly unavailing to show that this will was in other respects properly executed; that there was some excuse for not placing the name of the witnesses at the end of the will; that there was the absence of fraud, and that the transaction was attended with entire good faith and fairness. The proof offered would not tend to show that the place where the signatures were signed was the end of the will.”
(Estate of Hewitt, supra.)
Rehearing denied.
All the Justices, except Lennon, J., concurred in the order denying a rehearing.