Estate of Latour

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 416 This is an appeal from an order of the superior court of the city and county of San Francisco admitting the will of deceased to probate and appointing Caroline Ford executrix thereof. The widow of deceased and four others, claiming to be brothers and sisters of deceased, contested the probate of the will, of whom only the widow, Catherine Latour, appeals. In her written grounds of opposition *Page 419 to the probate contestant alleged that the alleged will was not subscribed at the end thereof by the testator or by any person in his presence by his direction, that it was not declared by him to be his will, and that no subscribing witness signed his name as a witness at the request of the deceased or in his presence. She also alleged unsoundness of mind and undue influence. The proponent, Caroline Ford, answered, traversing all the objections, and the issues of fact thus raised were tried by a jury, which found that the name of deceased was subscribed to said instrument by one Crawford, in the presence of the deceased and by his direction,…

In my opinion the petition for rehearing should be denied. A number of briefs from several interested parties have been filed in support of the petition for rehearing in this case, and they suggest some further consideration of the procedure involved in the probate of wills. In every case of a contest of a will before probate there are, in law and in fact, two distinct, and to some extent independent, proceedings before the court. One is the petition of the proponent for the admission of the will to probate. The other is the contest, an affirmative proceeding, based on the written grounds of opposition filed by the contestant. There is no pleading on the part of the contestant that is addressed to the petition, or that is in the nature of an answer to it. The petition stands unanswered, and is to be disposed of by the court in much the same manner as if there were no contest. The contest is inaugurated by the filing of the "written grounds of opposition," in which must be set forth the facts upon which the contestant bases his assertion that the will is invalid. These may be either the lack of due execution, the mental unsoundness of the testator at the time of its execution, or…

I dissent. One of the issues made by the contest was as to the due execution, publication, and attestation of the alleged will. It was shown at the trial that a few days before his death the decedent suffered a stroke of paralysis which rendered him entirely speechless and almost completely helpless, so that his only means of communication with those about him was by signs — as by giving his hand in answer to a question, which was understood to signify assent. While in this condition a lawyer called in by proponent drew up the alleged will in conformity with his understanding of the signs made by decedent in response to questions asked him concerning the disposition of his estate. When the document was completed the lawyer signed it for the deceased, in pursuance of his supposed directions given in the manner above described. The issue upon the execution of the will was submitted to the jury in the form of three questions, as follows: — "1. Was the instrument now propounded by Caroline Ford for probate as the last will and testament of Felix Latour, deceased, signed by said Felix Latour? "2. Was the name of said Felix Latour subscribed to said instrument by some other…