In Re Estate of Silva

SHAW, J.

The decedent, Frank V. Silva, died on March 22, 1912. On April 22, 1912, an order was made admitting a certain document to probate as his last will. Thereafter, within the time here allowed by law, the appellants filed a petition for the revocation of the probate of the will. After trial the court denied the revocation, the appellants moved for a new trial and the court thereupon denied the motion. From this order the petitioners appeal. The decedent left no issue. The appellants are his brothers and sisters.

The first point made in support of the appeal is that the document admitted to probate is not testamentary in character, The following is a copy of the paper:

[119]

“Fresno, July 2th, 1906.

“I leave all the Busines I got To my wife Luiza Rosa Silva” so that she got to pad all my deads and wages of the working men and all the Bills that ivoe to be in Count ect.

“Frank V. Silva.

“Antone J. Breves

“Joe M. Silva.”

The appellants claim that the instrument does not describe any property nor in any way refer to property so as to constitute a disposition thereof. We think, however, that this contention cannot be sustained. A will is always to be interpreted so as to prevent intestacy if such interpretation is reasonably possible. (Civ. Code, see. 1326.) The courts are very liberal in construing words in a will written by one unfamiliar with the English language or unused to technical terms.

(Mitchell

v.

Donohue,

100 Cal. 208, [38 Am. St. Rep 279, 34 Pac. 614].) At the time this document was executed the decedent was very sick and evidently believed that he would not live long. He announced his desire to make a will, and of those present only Antone J. Breves was able to write English. All of them were Portuguese, unfamiliar with English. The decedent explained his intention to Breves, who thereupon prepared the above document. The use of the word “leave” is sufficient evidence of testamentary intent. The argument of the appellants is that the word “busines” cannot by any reasonable construction be held to refer to property. The context shows that it was used to describe whatever property the decedent at that time possessed. Taking the document as a whole, it sufficiently indicates the purpose of the testator to devise and bequeath to his wife all the property that he possessed and to require her to pay all his debts. Antone J. Breves testified that the word “deads” was his mode of spelling the word debts, that the word written “ivoe” was his method of writing the expression “I owe” and that by the words “in Count” he meant account. Whether these explanations were proper and competent or not we need not consider, for without them, in the light of the attending circumstances; the will should be given effect as if the words so used by him were properly written as he states they were intended to be.