In re Estate of Rand

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-