Estate of Emart , 175 Cal. 238 ( 1917 )

I dissent.

When the legislature of this state enacted section 1276 of the Civil Code, it was not entering upon a new field of legislation. Statutes governing the making and attestation of wills had long existed in England and America, and these statutes had frequently been before the courts for interpretation. The enactments of the American states are based upon one or the other or both of the English acts referred to in the majority opinion, with such modifications as were deemed proper in the respective jurisdictions. As is stated in that opinion, it was the settled construction, under the statute of frauds (29 Car. II, c. 3, s. 5), that the witnesses were not required to be present together at the signing or acknowledgment by the testator, or to attest in the presence of each other. (Jauncey v. Thorne, 2 Barb. Ch. (N.Y.) 40, [45 Am. Dec. 424]; Sullivan v. Sullivan, L. R. 3 Ir. 299; Westbeech v.Kennedy, 1 Ves. B. 362; Ellis v. Smith, 1 Ves. Jr. 11.) With the law thus established, there was enacted, in 1837, the Wills Act (1 Vict., c. 26), which provides "that no will shall be valid unless it shall be in writing, and executed in manner hereinafter mentioned; (that is to say) it shall be signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary." The words "present at the same time" left no room for doubt that the witnesses must be jointly present when the testator makes or acknowledges his signature. One of the obvious purposes of the later statute was to change the old law, which, as I have just said, permitted the testator to acknowledge his signature to the different witnesses at different times. But the concluding clause, relating to the attestation by the witnesses, does not contain the words "at the same time." It merely prescribes that the witnesses shall attest and subscribe in the presence of the testator. Accordingly, even under the Wills Act, the requirement of joint presence of the witnesses was not carried beyond the time of the testator's signing or acknowledging. The prevailing opinion of English courts and text-writers has been that it is not necessary that the witnesses should attest and sign at the same time, or that both should be present during the attestation. The will having been signed or acknowledged in the presence of both, each might attest and sign in the absence of the other. The contrary view, expressed obiter by Lord Brougham in Casement v. Fulton (5 Moore P. C. 130), has not been followed. There have been several decisions that the witnesses need not sign in the presence of each other (Faulds v. Jackson, 6 Notes of Cas. Sup. 1; Webb's Case, 1 Deane, 1; Cooper v. Bockett, 3 Curt. 648;Sullivan v. Sullivan, L. R. 3 Ir. 299), and the same construction of the statute has been approved by eminent law writers (1 Wms. Exrs. 93; 6 Sug. Real Prop. St. 342; 1 Jar. Wills, *85). The Virginia court, in giving the same effect to a statute like the Wills Act (Green v. Crain, 12 Gratt. (Va.) 252), did not, as the majority opinion says, "repudiate the decisions of the English courts holding the contrary construction." To the contrary, it was in accord with the English courts.

It appears, therefore, that under both English statutes the provision that an act shall be done by two or more witnesses in the presence of the testator does not require that the witnesses do the act at the same time, or in the presence of each other. It is enough if each does the act and if the testator be present on each occasion. The same construction should, on like grounds, apply to a provision, like that of section 1276 of the Civil Code, that the testator perform some act, or make some declaration, "in the presence of" or "to" a given number of witnesses. The necessity for the joint presence of the witnesses during any part of the testamentary act exists only when the statute contains direct and explicit language to that effect, as the Wills Act does when it declares that the signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time.

The American statutes governing the making of wills have uniformly been interpreted in accordance with these views. The legislation in the several states has varied greatly, some of the statutes being modeled on the statute of frauds, others following the Wills Act, while some (like our own) embody certain features of each of the English acts, or make additional provisions, like that of declaration that the paper is a will. Where the statute simply provides that a will must be in writing and attested by two or more witnesses, subscribing their names thereto in the presence of the testator, or that the will shall be signed or acknowledged in the presence of two witnesses, who shall subscribe the will in the presence of the testator, it has everywhere been held that the witnesses need not be together during the act of signing or acknowledgment on the part of the testator, or during their own attestation. (Moore v. Spier, 80 Ala. 129; Gaylor's Appeal,43 Conn. 82; In re Porter, 20 D.C. (9 Mackey) 493; Webb v.Fleming, 30 Ga. 808, [76 Am. Dec. 675]; Flinn v. Owen, 58. Ill. 111; Hull v. Hull, 117 Iowa, 738, [89 N.W. 979];Grubbs v. Marshall (Ky.), 13 S.W. 447; Chase v. Kittredge, 11 Allen, (Mass.), 49, [87 Am. Dec. 687]; Cravens v.Faulconer, 28 Mo. 19; Welch v. Adams, 63 N.H. 344, [56 Am. Rep. 521, 1 A. 1]; In re Clark's Will (N.J.), 52 A. 222;Watson v. Hinson, 162 N.C. 72, [Ann. Cas. 1915A, 870,77 S.E. 1089]; Simmons v. Leonard, 91 Tenn. 183, [30 Am. St. Rep. 875, 18 S.W. 280]; Barker v. Hinton, 62 W. Va. 639, [13 Ann. Cas. 1150, 59 S.E. 614]; In re Smith's Will, 52 Wis. 543, [38 Am. Rep. 756, 8 N.W. 616, 9 N.W. 665].) Two states have or had statutes substantially identical with our own, so far as the question under consideration is concerned, with the single exception that subdivision 2 provides for signature or acknowledgment in the presence of or to "each of " the attesting witnesses. In both of these states it has been held that the witnesses are not required to be present at the same time. (Rogers v. Diamond, 13 Ark, 474; Hoysradt v.Kingman, 22 N.Y. 372, 379.) The prevailing opinion takes the position that our code section is to be given a meaning different from that of the New York statute, for the reason that the provision in force in California does not embody the word "each." I think this argument gives entirely too much weight to what the New York court of appeals itself, inHoysradt v. Kingman, terms a "verbal criticism." That court based its conclusion upon the fact that the legislature, with the former statutes, and the judgments of the courts upon them, before it, drew an act which omitted the significant words of the Wills Act, "present at the same time," thereby plainly indicating that it did not intend to adopt that requirement of the Wills Act. Our own statute also omits these words, and contains nothing of equivalent import. Nevertheless, the majority of this court reaches what seems to me the strange conclusion that our legislature, with the earlier legislation on the subject before it, designed to adopt the rule of the Wills Act. If that was the purpose, it is difficult to see why the clear and unambiguous language of the Wills Act, requiring presence "at the same time," was not copied into our law.

No case is cited, and I have found none, holding that the witnesses must be present together, except where the statute explicitly calls for such unity, as in Connecticut, where it was provided that the will must be attested by three witnesses, "all of them subscribing in his presence and in the presence of each other" (Lane's Appeal, 57 Conn. 182, [14 Am. St. Rep. 94, 4 L. R. A. 45, 17 A. 926]), or in Vermont, where the statute demanded attestation and subscription by "three or more credible witnesses in the presence of the testator, and of each other" (Adams v. Field, 21 Vt. 256), or in Virginia, under a statute containing the words "two competent witnesses present at the same time." (Green v. Crain, 12 Gratt. (Va.) 252.)

When the legislature of this state enacted section 1276 of the Civil Code, it had before it the history of the earlier English and American legislation, and the decisions interpreting that legislation. It adopted some of the provisions of the Wills Act not found in the statute of frauds. For example, it provided for the signing by the testator at the end of the will, and for a signing or acknowledgment in the presence of witnesses. But it omitted the clear and definite words of the Wills Act, "present at the same time," which alone import into that statute the requirement for a joint presence of the attesting witnesses. As was said by the court of appeals of New York, the inference is irresistible that if it had been intended to change the settled rule that the witnesses need not be present together at any part of the testamentary act, the change would have been made by incorporating the words which were used to accomplish such change in the legislation of England, or other words of like import. (Hoysradt v. Kingman,22 N.Y. 372, 379.) The omission of any express requirement to this effect is convincing evidence that on this point the legislature intended to adopt the rule of the statute of frauds, rather than that of the Wills Act.

Subdivision 2 of section 1276 provides that the subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them to have been made by him, or by his authority. It was so acknowledged in this case. The testatrix acknowledged to the two witnesses that the subscription to the will had been made by her. Subdivision 3 declares that the testator must at the time of subscription or acknowledgment declare to the attesting witnesses that the instrument is his will. Mrs. Emart did so declare to both of the subscribing witnesses. There is no more reason for reading into the provisions (subdivisions 2 and 3), referring to the subscription or acknowledgment, and to the declaration to the witnesses, a requirement that both witnesses must be present at the same time, than there was for reading such requirement into the provision of the Wills Act that the witnesses must sign in the presence of the testator.

The question before us is not one of policy; it is one of interpretation merely. There is no inherent or natural right to pass property by will. The privilege is conferred by statute, and the extent and the mode of its exercise are determined by the legislative provision. The courts have not the right to overlook the failure to comply with a single requirement of the statute, whatever their view of its wisdom or necessity. (Estate of Walker, 110 Cal. 387, [52 Am. St. Rep. 104, 30 L. R. A. 460, 42 P. 815].) But neither are they justified in reading into the law a demand for the performance of any act or formality not included within its terms. I think just that has been done in this case.

Angellotti, C. J., concurred.