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In re Estate of Rand

In the Matter of the ESTATE OF A. C. RAND

In re Estate of Rand, 61 Cal. 468 (1882)
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Court
California Supreme Court · State Highest Courts
Decided
October 3, 1882
Docket
No. 8417
Citations
61 Cal. 4681882 Cal. LEXIS 644
Cited by 19
Syllabus
Olographic Will—Stationer’s Blank—Revocation of Probate of Will—Estate of Deceased Persons—Portions in Handwriting of Deceased can not be Admitted to Probate as his Olographic Will.— An olographic will is one that is entirely written, dated and signed by the hand of the testator himself. It is subject to no other form and maybe made in or out of this State, and need not be witnessed. (O. 0., § 1277.) Held: 1. Where portions of the paper was printed in the form of a stationer’s blank, and the vacant spaces therein were filled in the handwriting of the deceased, the instrument is not an olographic will. 2. The portion of the paper which was written by the deceased cannot be admitted to probate, as his olographic will as that would be in effect to change the statute, and make it read that such portions of an instrument as are in the handwriting of the deceased constitute an olographic will.
Summary
Appeal, by George Babcock as executor, and Mary Ann Babcock as devisee, from judgment of the Superior Court of the County of Alameda. Crane and Greene, JJ. Proceedings for the revocation of the probate of a,will. Cyrus A. Pomeroy, as an heir at law on the twenty-ninth day of September, 1881, filed a petition for the revocation of the probate, on the ground that the paper was not the olographic will of the deceased. Issue having been joined, and after trial the Court below found the following facts: 1. That the document filed in this Court on the twenty-ninth day of June, A. D. 1881, by George Babcock, which document was, on the eleventh day of July, A. D., 1881, admitted to probate as the last will and testament of Augustus C. Rand, deceased,, and letters testamentary issued thereon, was not subscribed by said deceased in the presence of any attesting witnesses, nor did any witness sign his name thereto as a witness, in any manner, or at any time. 2. That said document, so admitted to probate as the last will and testament of Augustus 0. Band, deceased, as aforesaid, is partly in print and partly in the handwriting of said deceased, and said written part is wholly in the handwriting of said deceased, and that said deceased, with his own hand, subscribed his name to said will, and at the end thereof. 3. That said document so admitted to probate, as aforesaid, in this Court,- as the last will and testament of said deceased, was executed on the day it bears date, to wit, on the twentieth day of October, 1877, as his last will and testament, and said instrument was by him declared to be his last will and testament, and the said George Babcock, named as executor, was informed by said deceased where said instrument would be kept and found after the said Band died. . 4. Said will was found by said George Babcock, after the death of said deceased, in the place indicated, and inclosed in an envelope, on which was indorsed in the handwriting of said deceased, the words: “ The last will and testament of Augustus C: Band.” 5. That said petitioner, Cyrus A. Pomeroy, is the sole surviving child of Harriet Band Pomeroy, deceased, who was a sister of Augustus C. Band, deceased, and who died before the date of the death of said Augustus C. Band, deceased, leaving her surviving the said Cyrus A. Pomeroy; that at the date of filing of said petition by said Cyrus A. Pomeroy he was over the age of twenty-one years. An order was made revoking the probate.

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Opinion of the Court

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The Court :

A paper, of which the following is a copy, was admitted to probate as an olographic will, viz.:

“In the Name of God. Amen.

“ I, Augustus C. Rand, of the City and County of San Francisco, State of California, of the age of seventy-six years, and being of sound and disposing mind, and not under any restraint or the influence or representation of any person whatever, do malic, publish, and declare this my last will and testamentan manner following, that is to say:

“ First. I direct that my body be decently buried, without undue ceremony or ostentation, but with proper regard to my station and condition in life and the circumstances of my estate.

“ Secondly. I direct that my executor, hereinafter named, as soon as he has sufficient funds in his hands, pay my funeral expenses and the expenses of my last sickness.

“ Thirdly. I will and bequeath to Mary Ann Babcock, wife of George Babcock, of Oakland, County of Alameda, State of California, all the right, title, and interest belonging to me in a piece of real estate situate in Brooklyn Township, County of Alameda, State of California, being known as the Mc-Cracken ranch, consisting of about sixty-five (65) acres, together with all the- improvements and additions that I have made thereunto.

“Also, all my right, title, and interest in a house and lot in the City and County of San Francisco and State of California, known as No. 9 Second avenue, with all the improvements and appurtenances thereunto belonging.

“Lastly. I hereby appoint George Babcock, of Oakland, County of Alameda and State of California, the executor of this my last will and testament, hereby revoking all former wills by me made.

“ In witness whereof, I have hereunto set my hand and seal *475 this twentieth clay of October, in the year of our Lord one thousand eight h/wndred and seventy-seven.

Augustus 0. Rand.

“ The foregoimg instrument, consisting of-page besides this, was, at the date thereof, by the said-signed and sealed and published as and declared to be-last will and testament, in presence of us, who, at-request, and in -presence and in presence of each other, have subscribed our names as witnesses thereto.

Residing at-- Residing at-”

The portions of the paper in italic were printed in the form of a stationer’s blank, and the portions in roman letters were in the handwriting of the deceased, filling the vacant spaces therein. In due time an heir of the deceased moved for revocation of the probate, on the ground that the paper was not an olographic will, it not being entirely in the handwriting of the deceased, and the Court granted the motion. The section of the Civil Code referring to this subject, Section 1277, is as follows:

“An olographic will is one that is entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this State, and need not be witnessed.”

The paper before us was not entirely written by the hand of the deceased. Portions of it were printed. The Legislature has seen fit to prescribe forms requisite to an olographic will, and these forms are made necessary to be observed. It was strenuously urged before us that the portions of the paper which were written by the deceased should be admitted to probate, omitting the printed portions. We are not at liberty to so hold. We should, thereby, in effect, change the statute, and make it read that such portions of an instrument as are in the handwriting of the deceased constitute an olographic will. The instrument, in its entirety, is before us. It was not entirely written by the hand of the deceased.

Order affirmed-

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Cited by 19 cases

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1884–1885: 11898–1899: 11902–1903: 11908–1909: 11914–1915: 21918–1919: 11920–1921: 11922–1923: 11924–1925: 11928–1929: 11930–1931: 11938–1939: 21942–1943: 11956–1957: 21982–1983: 218842026peak 1914 · 2

Relies on it most ⓘ

  1. Estate of Fay1 Coffey 428 (Cal. Supp. Ct. (San Francisco) 1902)
  2. Estate of Black641 P.2d 754 (Cal. 1982)
  3. In re Wolcott's Estate180 P. 169 (Utah 1919)
  4. Estate of Goldsworthy129 P.2d 949 (Cal. Ct. App. 1942)
  5. Bouch v. Rombotis641 P.2d 754 (Cal. 1982) · Dissent
  6. Estate of Bernard239 P. 404 (Cal. 1925)

Most recent

  1. Estate of Black641 P.2d 754 (Cal. 1982)
  2. Bouch v. Rombotis641 P.2d 754 (Cal. 1982) · Dissent
  3. Estate of Caruch293 P.2d 514 (Cal. Ct. App. 1956)
  4. Westlake v. State293 P.2d 514 (Cal. Ct. App. 1956)
  5. Estate of Goldsworthy129 P.2d 949 (Cal. Ct. App. 1942)
  6. Irving v. Scripps Memorial Hospital93 P.2d 555 (Cal. 1939)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

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