JOHN J. CLARKE v. ANNIE RANSOM, 50 Cal. 595

By the Court, Crockett, J. : The question to be determined is, whether the paper propounded by Miss Bansom, and which is entirely in the handwriting of the late Mrs. Gordon, and was written during her last illness, is entitled to probate as an olographic will. It is not denied that at the time when it was written Mrs. Gordon was of sound mind, and wrote it under the belief that her death was near at hand, as in fact it was. The point chiefly discussed by counsel is, whether the paper is or was designed to be testamentary in character. It was dated June 23, 1874, a few days before Mrs.

Gordon’s death, and is in these words: “ Dear Old Nance: I wish to give you my watch, two shawls, and also five thousand dollars. “Tour old friend, “E. A. Gordon.” On its face there is nothing to indicate that it was intended to be testamentary. The full name of the beneficiary is not mentioned, nor is there any reference to the antici- pated death of Mrs. Gordon. Aside from the surrounding circumstances, as developed by the oral testimony, the instrument on its face simply expresses a desire, or at most an intention, on the part of Mrs.

Gordon, to give to the person designated as “Dear Old Nance” the watch and shawls, together with $5000. It clearly appears, however, from the testimony, without contradiction, that Miss Ransom is the person designated as “Dear Old Nance.” It is well settled in this country and in England, first, that in determining whether the instrument propounded was intended to be testamentary, reference will be had to the surrounding circumstances, and the language will be construed in the light of these circumstances.

Second, that if it shall appear under all the circumstances that the instrument was intended to be testamentary, the court will give effect to the intention, if it can be done consistently with the language of the instrument; and in such cases the particular form of the instrument is immaterial. These propositions are supported by numerous authorities, among which are the following: 1 Jarman on Wills, 363; 1 Redfield on Wills, 174-5; Outlaw v. Hurdle, 1 Jones (N. C.) Law R. 151; Succession of Ehrenberg, 21 La. Ann. 280; Jones v. Nicolay, 2 Robertson Ecc. R. 288; Todd’s Will, 2 Watts & Serg. 145; Maxwell v.

Maxwell, 3 Metc. (Ky.) R. 100; Robnett v. Ashlock, 49 Mo. 172; 1 Williams on Exrs. 90; Wotton v. Redd’s Ex’r, 12 Grattan, 205; McGrath v. Reynolds, 116 Mass. 566. The next inquiry is, under what circumstances the paper in question was made and executed by Mrs. Gordon. It appeared in evidence that for some years Mrs. Gordon and Miss Ransom had been on terms of intimacy. Mrs. Gordon was a widow, with a large estate and without children living.

She had before executed a will in due form, by which she had devised to her brother (the appellant) the whole of the estate, with the exception of several specific legacies, one of which was to Miss Ransom for $1000, and the brother was nominated as one of the executors. It further appears that after the will had been duly made and executed, Mrs. Gordon desired to make a further provision for Miss Ransom; and for that purpose drew up, wholly in her own handwriting, and delivered to Miss Bansom, the paper propounded as a will. The Court finds that when this instrument was executed and delivered, Mrs.

Gordon was of sound mind, and was cognizant of the fact that she was in her last illness, and was in expectation of death; that she was not under duress, restraint or undue influence, and delivered the paper, “intending that the same should take effect after her death;” and further, that Miss Bansom was the person designated in the instrument as “Dear Old Nance.” Upon these facts the court below admitted the instrument to probate.

But it has been suggested that it appears from the testimony of Miss Bansom herself, that the instrument was not intended to be testamentary, but merely as a written request to Clarke, the residuary devisee, and as indicating the desire of Mrs. Gordon (which she believed he would respect) that he would give Miss Bansom. the watch and shawls and the §5000. But I think such an inference is not fairly deducible from Miss Bansom’s testimony, taken as a whole. It is true she says Mrs.

Gordon requested her not to exhibit the paper to Clarke until after her death; nor then unless he should refuse on her verbal request to give her the §5000 and the watch and shawls. But she also testifies that in case he refused to comply with the request, Mrs. Gordon instructed her “to give the paper to Mr. Doyle and have it effected after her death.” This would seem to indicate very clearly that she did not intend it should be optional with Clarke whether Miss Bansom should receive the benefit of her bounty.

But without going into further detail, it will suffice to say on this point, that in my opinion the court was justified by the evidence in holding that the instrument was intended to be testamentary. But it is urged in argument that under

section 1292 of the Civil Code, and

section 1970 of the Code of Civil Procedure, then in force, this instrument is inoperative to change, modify or revoke, pro tanto, the former will.

As these two sections then stood, they were identical in legal effect, and provide that a written will cannot be revoked or altered, in whole or in part, except “by a written will or other writing of the testator declaring such revocation or alteration, and executed with the same formalities with which a will should be executed by such testator.” The instrument propounded being wholly in the handwriting of the testatrix, was executed with the requisite formality, but does not on its face declare that it was thereby intended to revoke or alter the former will; nor was it necessary that it should.

The words “declaring such revocation or alteration,” as employed in the statute, mean nothing more than that it shall appear from the provisions of the last will, that it was intended to alter or revoke the former, in whole or in part. | In my opinion the judgment and order should be affirmed,j and it is so ordered.