McFadyen v. Rose

Citations

• 121 Cal. 405
• 53 P. 928
• 1898 Cal. LEXIS 922

Syllabus

<p>Wills—Proof of Execution—Death ob Forgetfulness of Witness—Presumption.—If the subscribing witnesses to a will are dead, or if, being present, they are forgetful of any fact essential to its due execution, •it will be presumed from the proved fact of signature or of handwriting of the testator and witnesses, that the requisites of the law were duly observed, whether it is so stated in the attestation clause or not, unless the contrary is proved.</p> <p>Id.—Blank in Attestation Clause—Sufficiency of Pboof—Eindinq of Due Execution.—Where the attestation clause of a will stated: “In witness whereof I have hereunto set my hand and seal in presence of John Heard and -, who I request to sign their names hereto as subscribing witnesses,” and the person named and another witness signed their names after the name of the testatrix, and the named witness being dead, the handwriting of the testatrix, and of such named witness were proved; and the other witness testified to signing his name in the presence of the testatrix and of the other witness, but could not remember whether he saw the testatrix sign the will, the evidence is sufficient, in the absence of any counter-showing, to prove the due execution of the will, and a finding in favor of such execution cannot be disturbed upon appeal.</p>