In re Estate of Skerrett
Before: Myrick
Synopsis
„ Will—Deed of Gift.—An instrument purporting to be a deed of gift, but inoperative for want of delivery, cannot, in the absence of proper evidence that a testamentary disposition was intended, be admitted to probate as a will.
Id. — Cebtaei IbstbujUeets Constbued as a Will__Two instruments in the handwriting of the deceased, attached together, and found among his papers, one being in the form of a letter signed by him and addressed to his sister, and the other purporting to he a copy of a deed of gift from the former to the latter, and it appearing on the face of the letter that the property described in the deed was intended by the deceased as a provision for the sister after his death, held, to be a will, and admissible to probate.
Myrick, J. These appeals will be considered together. No. 9560 is an appeal from an order refusing to admit an instrument to probate as the will of the deceased; and No. 9735 is an appeal from an order admitting an instrument to probate.
The following appears in the bill of exceptions in appeal No. 9560:—
“Be it remembered that on the 13th day of September, 1883, [586]there was filed with the clerk of said Superior Court a certain instrument in writing, which was in words and figures following, to wit:—
“This indenture made this twenty-sixth day of April, one thousand eight hundred and eighty-one, between ¡Nicholas Skerrett, of the city and county of San Francisco, State of California, party of the first part, and Anna J. Skerrett, his sister, of London, England, party of the second part:—
“ Witnesseth: That the said party of the first part, in consideration of the love and affection which the said party of the first part has and bears unto the said party of the second part, does by these presents give, grant, and confirm unto the said party of the second part, and to her heirs and assigns forever, that certain lot [here follows description' of real estate], together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining, and the reversions, remainder, and remainders, rents, issues, and profits thereof, to have and to hold all and singular the said premises, together with the appurtenances, unto the said party of the Second part, and to her heirs and assigns forever.
“In witness whereof the said party of the first part has hereunto set his hand and seal the day and year first above written.
“My Dear Akita:—I have for a long time been thinking of executing this document. We all know life is uncertain, and we don’t know the moment we may be called away. Both you and myself may live for many years to come, yet we know not the time. I therefore want you to know you are provided for under any circumstances. ¡Now, I want to explain the particulars : This deed which I send you a copy of is all regularly made out and witnessed before a notary public. ¡Nothing else necessary but to have it recorded; then it becomes your property, which can be done any moment, if necessary. My intention, however, is to provide for you while I live, the same as I always have done; and hereafter, if it should please God to call me away, you will have your own property to depend on, sufficient to make you independent while you live. I must now conclude, having no more to say, and are joined by Mr. Dixon in wishing you health and happiness. Tour affectionate bro.,
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