The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-12-11
WROTE THE WRONG NAME
How a Careless Act Rendered an
Otherwise Good Will
Invalid.
A Point in Probate Law That Caused a
Split in the Supreme
Court.

A peculiar point in the attesting Of wills
has been decided by the Supreme Court, a
point moreover which has caused the Su-
preme Judges to stand four to three in up
holding the ruling of the lower court ap-
pealed from.
The facts were as follows: The will of
Ozias Walker of Butte County was written
by c. G. Warren, testator's attorney, and
was executed in the presence of Warren
and H. C. White. The requirements of
the code were complied with in all respects
except that Warren, in signing his name,
wrote G. G. Walker, his own initials and
the test ator's surname. Upon this show
ing the lower court refused to permit the
will to be probated.
Judge Henshaw wrote the opinion
which sustained the ruling of the lower
court, and Harrison, Temple and Beatty
concurred. Justices Mcfarland, Gar
Quite and Van Fleet wrote dissenting
opinions.
The point of Justice Henshaws opinion
was that the right to dispose OF property is
not an inherent right, but one obtained
from the Legislature, and that to take ad-
vantage of the right thus conferred all the
requirements must be scrupulously COM
piled with. 1t is held that as the law has
prescribed that wills shall be witnessed by
the witnesses signing their names, it can
not be concluded that any other form of
signature will do. LAS well, the opinion
states, ''could it he said that the require
ment of the attesting witnesses is not man.
datory, and that the will, having been
duly attested by one witness, should have
been admitted to probate. In the absence
of any will the law makes a wise, lib
eral and beneficent distribution of the
dead mans estate, so wise indeed that the
policy of permitting wills at all IS often
gravely questioned. When will is proved
every eXertion of tn9court is directed to
giving effect to the wishes of the testator.
but in the proving of the instrument the
sole consideration before the court is
whether or not the legislative mandates
have been complied with. If not, then the
law makes the will, and it is often a better
one, embracing more equitable distribu-
ton of his property than that which the
deceased attempted but failed to execute"
Judge Mcfarland in dissenting held
that there had been sufficient compliance
with the formalities prescribed by the
code. The signature written by Warren,
he held would have been passed on any
other instrument, and should therefore be
allowed on will. To allow will to be
defeated by the careless or intentional mis-
spelling of a name, Justice Mcfarland
thought, would lead to great abuses.
Justice Garoutte thought Juctice Hen
shaw's opinion too technical. He thought
the right to dispose of property is some
thing more than the mere grace of the
legislature; it is almost an inalienable
right. Further, he held that as it was con-
coded that had Walker signed Warren"
to his will by mistake it could not have in
validated the will, he could not see why
the mistake of Warren should destroy the
document. Justice Van Fleet also wrote
dissenting opinion, but the decision of
the four Justices prevails.