Tevis v. Pitcher

Field J., delivered the opinion of the Court Terry, C. J., concurring.

This is an action to recover possession of certain premises situated in the county of Sacramento, and the only question presented by the appeal, for determination, relates to the validity of the second codicil to the will of Eliah Grimes, under which the plaintiff claims title. In December, 1844, Grimes obtained from the then Governor of California a grant of a large tract of land, including the premises in controversy, under which he entered into possession of, and held and enjoyed the land until his death in ¡November, 1848. In April, 1845, he made a second codicil to his will, previously published, devising, by this codicil, to his nephew, Hiram Grimes, all his right, title, and interest in the land embraced in the grant. The codicil is attested by two witnesses, and purports to have been signed at the pueblo of San Francisco, before the sindico, in the absence of the two alcaldes. It was admitted, on the trial, that the testator, witnesses, and sindico, were dead, and that the signatures to the codicil were genuine.

The will and codicil took effect by the death of the testator previous to the establishment of the present State government, and the several statutes relating to wills do not apply to wills executed previous to their passage. There is no provision for the probate of such wills, and they must rest for their validity upon the laws under which they were made. This was expressly decided in relation to this same will, in the case of Grimes’ Estate v. Norris, (6 Cal., 624.)

Under the Mexican law, as enforced in California, such a proceeding as the probate of an open will was unknown. The will took effect, as a conveyance, upon the death of the testator. It was valid if made in the presence of three witnesses, and even this number was not absolutely essential under the custom existing in California, and which obtained the force of positive law. By the custom which generally prevailed, as has been established in repeated instances by the most satisfactory proof, and been recognized by this Court, two witnesses were sufficient. Proof of the custom was given in this case. Similar proof was offered in Castro v. Castro, (6 Cal., 160,) and was held to obviate the objection to the will in that case, that one of the three attesting witnesses was incompetent. “ That such customs may be proved,” says the Court, “and that, when proved, they have the force of' law, has been fully settled by the decision of this Court in the case of Von Schmidt v. Huntington, (1 Cal. Rep., 56,) in which it was held that, under the Mexican law, custom is sometimes allowed to control, limit, and modify the general rules [478]