Opinion
11-7-1957
Matter of the ESTATE of Frances R. HOWELL, Deceased. Walter HOWELL, Contestant and Appellant, v. Mary F. O'MALLEY, Mary C. O'Malley, Rita A. O'Malley, Margaret Beacham, Ellen Tobin, Margaret Pohl, and Frances Murphy, Legatees and Respondents.* Civ. 22512.
Paul R. Hutchinson, Los Angeles, for appellant. A. J. O'Connor, George J. Hider, Los Angeles, for respondents.
Matter of the ESTATE of Frances R. HOWELL, Deceased.
Walter HOWELL, Contestant and Appellant,
v.
Mary F. O'MALLEY, Mary C. O'Malley, Rita A. O'Malley, Margaret Beacham, Ellen Tobin, Margaret Pohl, and Frances Murphy, Legatees and Respondents.*
Nov. 7, 1957.
Rehearing Denied Nov. 29, 1957.
Hearing Granted Dec. 30, 1957.
Paul R. Hutchinson, Los Angeles, for appellant.
A. J. O'Connor, George J. Hider, Los Angeles, for respondents.
DRAPEAU, Justice pro tem.
There is but one question in this case: Was the will of Frances R. Howell executed in accordance with the requirements of section 50 of the Probate Code?
The will was admitted to probate. Petition to revoke the order was denied. This is an appeal from that judgment.
The first page of the will is on a printed form. Some of the blanks in it were filled in with typewriting; other blanks were filled in with handwriting.
The form has a printed headline, 'Last Will and Testament.'
Then, in printing and in typewriting, it declares that it is decedent's last will, and revokes all former wills by her made.
Then, all in typewriting, and numbered 'First,' it gives to decedent's son $1,000, for funeral expenses and masses.
Then, again all in typewriting, and numbered 'Second,' it gives bonds to grandchildren.
Here the typewriting of bequests leaves the first page, and continues on the second page with the concluding language of paragraph 'Second.' On this second page, and all in typewriting, there follow nine numbered bequests--to decedent's son, to her daughter-in-law, to her sister, to nieces and nephews, to grandchildren, and to friends.
On page three, the typewriting of bequests goes on, giving in a paragraph numbered 'Twelfth,' household and personal effects to decedent's son and daughter-in-law, with a direction to pay all outstanding bills.
We return now to the first page of this will, where the typewriting of bequests left it.
Decedent appoints her son and her sister executors, says that she signed the will on the day it was made, and subscribes her name in handwriting.
Then follows an attestation clause signed by three witnesses, and at the bottom of this first page decedent, for good measure, again signs her name.
She also signed her name at the bottom of the typewriting on page two.
The clerk's transcript does not show that testatrix signed her name at the bottom of page three; but it was stipulated when the case was argued in this court that she did.
We suppose that so long as time shall last laymen will try to do a lawyer's work for themselves, for that is a not unnatural manifestation of human nature. But see what was done in this case. The will we are considering revokes a former will by which testatrix gave all of her property to her only son, scatters it among persons who had less claim to her bounty, and leaves her son to pay her bills and expenses of her last illness.
If this lady had talked with a lawyer, and had been told what would be the effect of her numerous bequests, perhaps she might have written a very different will. As it is, there has resulted expenses of litigation in probate, and bitterness of feeling that will disrupt a family for all time. It adds no comfort for anyone to reflect that whoever sold the form was paid 'two bits.'
However, no matter what the consequences of a will may be, we are bound by long-established law. When a will is made as prescribed by law, it will not be denied probate unless it is clearly shown that it was not of the testator's free agency; that he didn't know what he was doing; or that he was the victim of fraud; or that he was subjected to such undue influence that the will was really another's, not his own. And though we may deplore the effects of the will here under consideration, we are not empowered to set it aside for that reason alone.
Was the will executed in accordance with the provisions of section 50 of the Probate Code?
That section in part reads as follows: 'Every will * * * must be subscribed at the end thereof.'
No matter how the will is read, it was subscribed by the testatrix.
We are of the opinion that we should start at the beginning of the will, go forward with the numbered paragraphs on pages 1, 2 and 3, and then go back to page 1, with its attestation clause and signatures of decedent.
This situation is similar to the one considered by this court in Re Estate of Chase, 51 Cal.App.2d 353, 124 P.2d 895. In that case the will started on a printed blank, continued in handwriting on three pages, and concluded with the attestation clause and decedent's signature on the reverse side of the printed blank. This court held that that was sufficient to support the finding of the probate court.
The son finally suggests that the typewriting of the bequests was not a part of the will when it was executed by his mother and the attesting witnesses.
This is negatived by the fact that the typewriting starts on page 1 of the form, and that his mother signed pages 2 and 3 also.
Moreover, one of the attesting witnesses testified that there were three papers to the will. And another attesting witness testified that when she signed the attesting clause on the form 'there was something turned over.'
The judgment is affirmed.
WHITE, P. J., and FOURT, J., concur. --------------- * Opinion vacated 324 P.2d 578.