King v. Ponton

Sharpstein, J. Appellant presented to the superior court of the county of Fresno, sitting in probate, an instrument which he alleged to be an olographic will, — the last will and testament of John McCalman, who died in said county on or about the sixteenth day of July, 1888. Appellant was named in said alleged will as sole executor. And he prayed that said alleged will be admitted to probate, and that letters testamentary thereon be issued to him. At the time appointed for hearing said application, respondent appeared to contest said will, and filed written grounds of opposition to the probate thereof, to which appellant filed an answer, traversing the objections. Thereupon the contest came regularly on trial before the court and a jury of twelve men, who were duly sworn to try said cause.

An instrument which appellant offered to prove as the last will and testament of John McCalman was read in evidence. It is written on one side of one sheet of writing-paper of foolscap size, and is not signed at the foot or end in any manner, but said sheet of paper is torn at the lower end thereof, and that part usually occupied by the signature is torn away and not produced. That part which is torn away and not produced is described as follows: “ Commencing at the right-hand edge of said sheet of paper, about two and one half inches [422]from the lower edge thereof, and less than one inch below the last line of said instrument, and extending thence toward the left-hand corner, and reaching the lower edge of said sheet about one and one half inches to the right of the lower left-hand corner; the torn edge is slightly circular toward the left and bottom of the sheet from a point about the middle thereof. There appears just above the torn edge, and about three inches to the right-hand side, a pen-mark in ink, almost circular, with the open side down and resting in the torn edge.”

It was admitted by the contestant before the court and in the presence of the jury that the paper instrument in evidence as the last will and testament of John McCalman Was executed and signed by him, and that he had sufficient reason for devising his property to the parties named in the will, and that the reason was strong enough to induce him to do that.

By that admission all the issues were eliminated from the contest except one, viz.: Whether “the said John McOalman did, before his death, tear, cancel, and destroy his signature from said instrument with the intent and for the purpose of revoking the same as a will.”