Jacobson v. Kristovich

249 Cal. App. 2d 263, 57 Cal. Rptr. 332, 1967 Cal. App. LEXIS 2221
CourtCalifornia Court of Appeal
DecidedMarch 8, 1967
DocketCiv. No. 30988
StatusPublished
Cited by1 cases

This text of 249 Cal. App. 2d 263 (Jacobson v. Kristovich) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jacobson v. Kristovich, 249 Cal. App. 2d 263, 57 Cal. Rptr. 332, 1967 Cal. App. LEXIS 2221 (Cal. Ct. App. 1967).

Opinion

LILLIE, J.

The public administrator appeals from order admitting a holographic will to probate, appointing Joseph Jacobson executor and issuing to him letters testamentary, and denying the public administrator’s petition for letters of administration.

The entire instrument, written by and in the handwriting of the deceased, bears in the top right corner the purported date of its execution, “1965.” There appears to be nothing definite about this “date” except the year, the day and month having been omitted. The sole issue is whether the numerals “1965” constitute a date within the meaning or contemplation of section 53, Probate Code. The statute in pertinent part provides: “A holographic will is one that is entirely written, dated and signed by the hand of the testator himself. ...”

There is no doubt that the document written by Mrs. Hazel-wood was executed with testamentary intent. Thus, the question is whether on its face the instrument shows a substantial compliance with the mandatory requirements of section 53, Probate Code; if it does not, the writing is invalid as a holographic will.

“Last wills and testaments are entirely creatures of the legislature, and, while some of the formalities with which they are required to be executed may appear to be immaterial and unnecessary, yet the right to thus dispose of one’s estate being purely statutory, the manner of such disposal as prescribed by the statute must be observed with at least substantial strictness. If, therefore, there be a substantial departure from such formalities in an attempted testamentary disposal of one’s property, there is no last will in law, and the decedent’s estate must go to the administrator.” (Estate of Price, 14 Cal.App. 462, 463 [112 P. 482] ; Estate of Carpenter, 172 Cal. 268, 269 [156 P. 464, L.RA. 1916E 498].) Citing Carpenter, the court in Estate of Thorn, 183 Cal. 512, 514 [192 P. 19], stated: “Of course, the intent of the deceased is obvious. He was endeavoring to make a valid olographic will, and the manner in which he desired his property to go is clearly specified. Nor can there be a suspicion as to the genuineness of the document. But all this is beside the question. We are confronted here with the question whether in this document there has been that substantial compliance with the mandatory requirements of our statutes relative to the execution of wills that is absolutely essential to the existence of a valid will. (See Estate of Carpenter, 172 Cal. 268, 269 [156 P. 464, L.R.A. 1916E 498].) ” (P. 514.)

[265]*265As to holographic instruments, “strict compliance with the requirements of section 53 of the Probate Code as to handwriting, date and signature is absolutely essential. [Citations.] ” (Estate of Blain, 140 Cal.App.2d 917, 921 [295 P.2d 898].) A holographic will “must be entirely written, it must be entirely dated, and it must be entirely signed by” the testator in order to comply with the statute. (Estate of Billings, 64 Cal. 427 [1 P. 701].) This language was quoted with approval in Estate of Thorn, 183 Cal. 512, 514 [192 P. 19]; Estate of Vance, 174 Cal. 122, 123 [162 P. 103, L.R.A. 1917C 479]; and Estate of Maguire, 14 Cal.App.2d 388, 389 [58 P.2d 209],

It is well settled that the writing in order to comply with the requirement that it be dated (Prob. Code, §53), must designate a complete date including the day, month and year; if it does not, the instrument is not a valid holographic will. (Estate of Billings, 64 Cal. 427 [1 P. 701] [“April 1st”]; Estate of Price, 14 Cal.App. 462, 463-467 [112 P. 482] [“Dated this-day of ——, 1906”]; Estate of Anthony, 21 Cal.App. 157, 158 [131 P. 96] [“27, 1911”]; Estate of Carpenter, 172 Cal. 268, 270 [156 P. 464, L.R.A. 1916E 498] [“10 1912”]; Estate of Vance, 174 Cal. 122, 123 [162 P. 103, L.R.A. 1917C 479] [‘“22nd day of March in the year of our Lord one thousand”] ; Estate of Moody, 118 Cal.App.2d 300, 305 [257 P.2d 709]; Estate of Carson, 174 Cal.App.2d 291 [344 P.2d 612] [“May 1948”]; Estate of Fritz, 102 Cal.App.2d 385, 394 [227 P.2d 539] [“December 1946”] ; Estate of Maguire, 14 Cal.App.2d 388, 389-390 [58 P.2d 209] [“March nineteen hundred and thirty”] ; Estate of Shiffmann, 16 Cal.App.2d 650, 651 [61 P.2d 331] [“Tues., Aug. 20”].) While abbreviations of words, figures or other conventional signs, if commonly used and generally recognized, are a sufficient mode of dating a document (Estate of Lakemeyer, 135 Cal. 28, 29 [66 P. 961, 87 Am.St.Rep. 96] ; Estate of Chevallier, 159 Cal. 161, 170 [113 P. 130] [“4-14-07”]; Estate of Olssen, 42 Cal.App. 656, 658 [184 P. 22] [“4-12-17th”]; Estate of Moody, 118 Cal.App.2d 300, 305 [257 P.2d 709] [“11-21-51”]), the deceased here made no effort to use any such abbreviations. The entire "date’’ appears simply as “ 1965. ”

The figures “1965” written in a group obviously were intended by the deceased to represent the year; certainly they reasonably cannot be construed as containing in addition thereto, a day or month, for none was designated. Similarly, [266]*266in Estate of Price, 14 Cal.App. 462, 463 [112 P. 482], the question was whether the numerals combined together as representing the year “1906” constituted a date within the meaning or contemplation of the section; the court held that it did not. In Estate of Carpenter, 172 Cal. 268 [156 P. 464, L.R.A. 1916E 498], the purported date was “10 1912.” The court said: “Appellant’s first contention is that the figures ‘10 1912’ might be read as meaning ‘the 10th month, the 19th day and the year 1912,’ thus coming within the ruling in Estate of Chevallier, 159 Cal. 170 [sic], [113 P. 130], and Estate of Lakemeyer, 135 Cal. 28 [66 P. 961, 87 Am.St.Rep. 96], The doctrine of those cases is merely that well-known abbreviations may be used in compliance with the code provision in reference to holographic wills, as, for example, ‘4-14-07’ meaning ‘April 14th, 1907.’ But no such abbreviation was attempted in the will here considered. The photographic reproduction of the instrument which accompanies the record shows the figures ‘10’ followed by a space after which the figures ‘1912’ are written in a group obviously intended to represent the year. It is impossible to determine whether the number ‘10’ represented or was intended to represent the month of October or the 10th day of some other month.

“The alleged date as written by Mr. Carpenter lacked the most essential requisite of a date as defined by our decisions and that is definiteness.” (P. 270.) It is apparent from the face of the document written by Mrs. Hazelwood that it has not been executed in substantial compliance with the mandatory requirements of Probate Code, section 53, and that as a holographic Avill it is invalid.

Respondent has attached to his brief a photo copy of the document.

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Related

Estate of Hazelwood
249 Cal. App. 2d 263 (California Court of Appeal, 1967)

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Bluebook (online)
249 Cal. App. 2d 263, 57 Cal. Rptr. 332, 1967 Cal. App. LEXIS 2221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jacobson-v-kristovich-calctapp-1967.