The San Francisco call., 1897-01-22

sound mind that his signature ana the sig
natures of the attestlng witnesses were
genuine, and that the witnesses at the time of
the hearing were beyond the jurisdiction OF
the court. On this proof it is claimed that
under the law the will was duly executed and
declared with every formality prescribed by
the statute.
Mr.. Highton here sets forth the requi-
sites established by the code to the due
execution of o will, namely, the signing
by the maker of the will or by some
authorized by him; that it be signed in
the pre- >ence of The witnesses or acknowl-
edged before them; that at the time of
the subscription or acknowledgment The
testator must declare to the attesting wit
nesses that the instrument is his will,
and that the two atte sting witnesses must
sign their names at the end of the will at
the testator's S request and in his presence.
Mr. Highton continues:
Now, on this state of the law and by the ap-
piica ton OF the doctrine of presumption, it is
insisted that the bare signatures OF the tes-
tator and the witnesses, and evidence of COM
potency in the testator, prove every fact
necessary in the absence of con Trajectory tes-
timony to esta blish the will was duly executed
and duly declared and witnessed.
On principle and apart from authority, and
balancing the possible argument pro and con,
it would seem to be most dangerous to uphold
this contention, which surely conflicts with
the ordinary rule, where statutory require
ments have to be observed, and especially in
view of the fact that will is not helped
by the common law, but depends for its
validity upon substantial ompliance with the
Statute.
After quoting the provisions of the code
and certain decisions and other authori-
ties, including the requirement for the
taking of depositlons oil absent witnesses,
Mr.. Highton contends that the deposit
tions of these witnesses have not been but
~ .n1- g &c
shown to be dead or insane; it Is not i'm
possible to obtain their testimony and
they have not removed beyond the juris-
diction. The brief says:
The generalizations are qualified and per
haps completed by other generalizat tions from
the books and it would be as unsafe to rely
conclusively on the quotations here presen nted
as it would be to rely on the dictum of Justice
Field, in itself entitled to great respect in q
case where, If ! understa nd 1t, both witnesses
were dead.
Mr.. Highton quotes from the decision
OF the California Supreme Court in the
estate OF Cartery (56 CAL. 472), where it is
set forth that the right TO make testa-
mentary disposition of property is not an
inherent right, but rests wholly on the
Legislative will. In comforting that right
the Legislature has seen fit to prescribe
certain exactions and requirements look
ing to the execution anG authorization of
the instrument, and a com pliance with
these becomes necessary to it's exercise.
In view of these matters, Mr.. Highton
concludes as follows:
1 respectfully submit that every conceiv-
able and available kind of evidence should be
exhausted before so fimsy substitute for
OF dinary proof should be accepted. And on
the citations presented, and on the facts of
this record, it may be claimed, / think, that
reason and authority concur in support of the
motion.
Judge Coffey has promised the attor-
neys 10 take up the matter at an early
day. He suggested that if the subscribing
witnesses are really in this City, il may
be deemed better for the proponent of the
will TO secure their attendance in court.
By that method the question of the sign
ing an duplication of the will may be In
quire d into in manner satisfactory alike
to the court ana all others concerned.