Castro v. Castro

The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Terry concurred.

This was a proceeding in the Probate Court to set aside and annul a will. The testator died in 1831; the personal property was divided under the provisions of the will, and the heirs remained on the land, and acquiesced in it until some time in 1852, a period of over twenty years.

[160]Upon the motion to dismiss, which has been made, it is only necessary to say that this is the second time this case has been before us, and the time which it has been suspended on appeal is not to be computed; in other words the appeal prevents the'running of the statute.

By the civil law, wills are divided into solemn and privileged* the solemn will is divided into the nuncupative or open will, and the sealed or written will. The privileged will corresponds with what is known with us as the nuncupative will. The will in question belongs to what was known at common law as the nuncupative will, because formerly published viva voce; and although the custom of publication has long since ceased, it still retains the name, between which and the solemn will there is no difference in modern times, except that the latter is sealed up and the attestation made on the back of the instrument.

Among the Romans, wills, or the mode of conveying property by testament, were known even before the art of letters, and therefore much strictness was required in authenticating them; but the reason ceasing, the rigor of the rule has since been relaxed in the various countries which have adopted the civil law as the basis of their jurisprudence. Many objections have been urged against the validity of the will in question, only two of which I shall consider, as I am of opinion that the whole question has been fully settled by this Court in the case of Panaud v. Jones, 1 Cal., 488.

First. It is contended that the making of the will was not a continuous act, as required by the provisions of the Mexican law; it appears upon the face of the instrument that it was begun on a certain day and * finished several days afterwards, and this objection is satisfactorily explained by the testimony of one of the subscribing witnesses, who testifies that he drew the document in question and that after he had commenced writing the same, supposing that some formula was necessary, the further writing was suspended until a competent person could be sent for, who could give the proper directions as to the form and words. It may be that this would vitiate the instrument, but why it should, or on what ground an instrument commenced, and its execution suspended for such purpose, can be invalidated, our ignorance of Mexican law prevents us from determining.