Malpas v. Whipple

JAMES, J., pro tem. On June 24, 1928, the decedent executed her last will and testament and deposited the same in her safe deposit box in the Oakland Bank. This will was an holographic will but drawn with much care and circumstance; and, notwithstanding its being an holographic will, was nevertheless witnessed by two witnesses. By the terms of this will, among other provisions, she bequeathed to her nephew, Alfred Malpas, the sum of one thousand dollars and also one-fifth of the residue of her estate. On July 28, 1931, she wrote and mailed a letter to her nephew, Alfred Malpas, as follows: “Dear Al. In case anything should happen to cause me to pass on, I want you to have $5,000 immediately, to settle up your debts & to give you a little [99]start, so you had better have Amer. T. & T., Gen. Motors, or Union Oil stock which will bring that amt. Am just leaving for the hosp’t. If at any time, I pass on, I want all my friends to come to my services, and I want soft music played but no singing & to be put in our lot in Mountain View. There is just room for me. A big heart full of love to you, dear, from your Aunt Nell Hughes. Oakland, July 28th, 1931. My will is in my safe box in Oakland Bank.” At the time this letter was written she was about to go into the hospital to undergo a surgical operation, and after writing and mailing this letter she did go to the hospital, either that day or the following day, and underwent the operation as planned. From this operation she recovered and lived until February 1, 1933, when she died—nearly two years later—of a complaint or illness entirely unconnected with the subject of her previous operation.

The will of June 24, 1928, was filed and admitted to probate, and the letter above mentioned was filed, together with a petition for its probate as a testamentary document. The probate of such instrument was opposed in the court below and, after hearing, the superior court denied probate of the document on two grounds: 1. On the ground that the document was not testamentary in character; and, 2. That if it was testamentary in character, it was conditional upon her dying as the result of the pending operation and that, if she did not die as the result thereof, the document never became effective. From this order denying probate to the instrument in question this appeal is prosecuted.

In determining the validity or effectiveness of an instrument claimed to be testamentary in character, there are certain considerations which must guide the court in its conclusions: First. The testamentary capacity of the decedent; Second. The conformity with the statutory requirements in the execution of the instrument in question; and-Third. The intention of the testator in the execution of the document in question.