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of Beatty, C. J., in discussing sufficiency of declaration); 148
C. 157, 159, 82 P. 768 (§§ 1266-1269 refer to what persons).

As to many miscellaneous matters as to homesteads, see note
§ 1237, ante.

§ 1268. DECLARATION MUST BE RECORDED. The decla-
ration must be recorded in the office of the county recorder
of the county in which the land is situated.

Hi.st<M-y: Enacted March 21, 1872.
680



Tit.V.ch.IIL] FILING FOR RECORD, EFFECT. § 1269

86 C. 134, 141, 24 P. 853, 855 (good declaration for any person
other than head of family); 148 C. 157, 159, 82 P. 768 (§§1266-
1269 refer to what persons).

As to duty of recorder, see Kerr's Cyc. C. C. P. § 4235 and note.

As to many miscellaneous matters as to homesteads, see note
§ 1237, ante.

§ 1269. EFFECT OF FILING FOR RECORD THE DEC-
LARATION OF HOMESTEAD. From and after the time the
declaration is filed for record, the land described therein is
a homestead.

History: Enacted March 21, 1872.

82 C. 226, 228, 229, 16 A. S. 108, 22 P. 1145, 1147 (cited with
other sections in discussing- constitutional provision for home-
stead); (cone. op. Beatty, C. J.), 86 C. 134, 141, 24 P. 853, 855
(cited in discussing sufficiency of declaration of homestead);
148 C. 157, 159, 82 P. 768 (§§ 1266-1269 refer to what persons).

As to many miscellaneous matters as to homesteads, see note
§ 1237, ante.



681



§§ 1269a, 1269b CIVIL CODE. [Div.II.Pt.IV.

CHAPTER IV.

ALIENATION OF HOMESTEADS OF INSANE PERSONS.

§ 1269a. Petition for sale or mortgage of.

§ 1269b. Notice of application for order.

§ 1269c. When order may be made and effect of order.

§ 1269a. PETITION FOR SALE OR MORTGAGE OF. In

case of a homestead, if either the husband or wife becomes
hopelessly insane, the husband or wife not insane may peti-
tion the superior court of the county in which such home-
stead is situated for an order permitting the husband or
wife, not insane, to sell and convey, or mortgage, such home-
stead to raise moneys to satisfy a lien or charge thereon,
or to provide for the support and care either of the sane or
insane spouse, or of their minor children. Such petition must
be subscribed and sworn to by the applicant, setting forth the
name and age of the insane husband or wife; the number,
age, and sex of the children, if any, of such insane husband
or wife; a description of the premises constituting the home-
stead; the value of the same; the county in which it is situ-
ated; and such facts, in addition to that of the insanity of
the husband or wife, relating to the circumstances and neces-
sities of the applicant and his or her family, as he or she
may rely upon in support of the petition.

History: Enacted March 22, 1905, Stats, and Amdts. 1905, pp.
725, 726; a codification of §§ 1 and 3, Act March 25, 1874, Stats.
1873-4, pp. 582, 583.

See Kerr's Cyc. C. C. for 5 pars, annotation.

As to many miscellaneous matters as to homesteads, see note
§ 1237, ante.

§ 1269b. NOTICE OF APPLICATION FOR ORDER. Notice
of the application for such order must be given by publica-
tion of the same, in a newspaper published in the county in
which such homestead is situated, if there is a newspaper
published therein, once each week for three successive weeks,

682



Tit.IV.Ch.IV.] ORDER OF ALIENATION. § 1269c

prior to the hearing of such application, and a copj-^ of such
notice must also be personally served upon the nearest male
relative of such insane husband or wife, resident in this
state, at least three weeks prior to such application; and in
case there is no such male relative known to the applicant,
a copy of such notice must be so served upon the public
administrator of the county in which such homestead is sit-
uated; and in such case it is the duty of such public admin-
istrator to appear and represent the interests of such insane
person. For all such services rendered by the public admin-
istrator he must be allowed a reasonable fee, to be fixed by
the court, and the same must be taxed as costs against the
person making application for the order herein provided for.

Hi.Mtory: Enacted March 22, 1905, Stats, and Amdts. 1905, pp.
725, 726; a codification of § 2, Act March 25, 1874, Stats. 1873-4,
pp. 582, 583.

§ 12(;9o. WHEN ORDER MAY BE MADE AND EFFECT
OF (nn)ER. if it appears to the court that such husband or
wife is hopelessly insane, the court may make an order per-
mitting the husband or wife, not insane, to sell and convey,
or mortgage, such homestead, and thereafter any sale, con-
veyance, or mortgage made in pursuance of such order is as
valid and effectual as if the property affected thereby was
the absolute property of the person making such sale, con-
veyance, or mortgage. If a sale is ordered it must be reported
to and confirmed by the court. Such husband or wife must,
before executing any mortgage or conveyance, give a bond,
to be ai)proved by the judge of the court, in double the amount
of the mortgage, or double the value of the property to be
sold, conditioned to account for the proceeds of the mort-
gage or sale and to apply such proceeds only as the court
may direct.

History: Enacted March 22, 1905, Stats, and Amdts. 1905. pp.
725, 726; a codification of § 4, Act March 25, 1874, Stats. 1873-4.
p. 583.



6S3



§ 1270 CIVIL CODE. [Div.II,Pt.IV.



TITLE VI.

WILLS.

Chapter I. Execution and Revocation of Wills, §§ 1270-1313.
11. Interpretation of Wills, §§1317-1351.
III. General Provisions Relating to Wills, §§ 1357-1377.



CHAPTER I.

EXECUTION AND REVOCATION OF WILLS.

§ 1270. Who may make a will.

§ 1271. Monomaniac incompetent [repealed].

§ 1272. Will, or part thereof, procured by fraud.

§ 1273. Will of married woman.

§ 1274. What may pass by will.

§ 1275. Who may take by will.

§ 1276. Written will, how to be executed.

§ 1277. Definition of an [h]olographic will.

§ 1278. Witness to add residence.

§ 1279. Mutual will.

§ 1280. Competency of subscribing witness.

§ 1281. Conditional will.

§ 1282. Gifts to subscribing witness void. Creditors competent

witnesses.

§ 1283. Witness who is a devisee, entitled to share to amount of

devise, when.

§ 1284. Will made out of this state [repealed].

§ 1285. Will made out of this state not valid, unless.

§ 1286. Subsequent change of domicile [repealed].

§ 1287. Republication by codicil.

§ 1288. Nuncupative will, how to be executed.

§ 1289. Requisites of a valid nuncupative will.

§ 1290. Proof of nuncupative wills. [When to be offered.]

§ 1291. Probate of nuncupative wills.

§ 1292. Written will, how revoked.

§ 1293. Evidence of revocation.

§ 1294. Revocation by obliteration on face of will [repealed].

§ 1295. Revocation of duplicate.

§ 1296. Revocation by subsequent will.

§ 1297. Antecedent not revived by revocation of subsequent
will.

684



i



Tit.VI,ch.I.] COMPETENCY TO REVOKE. § 1270

§ 1298. Revocation by marriage and birth of issue.

§ 1299. Effect of marriage of a man on his will.

§ 1300. Effect of a marriage of a woman on her will.

§ 1301. Contract of sale not a revocation.

§ 1302. Mortgage not a revocation of will.

§ 1303. Conveyance, when not a revocation.

§ 1304. When it is a revocation.

§ 1305. Revocation of codicils.

§ 1306. After-born child, unprovided for, to succeed.

§ 1307. Children or issue of children of testator unprovided for

by Ills will [To succi^ed].
§ 1308. Share of after-born child, out of what part of estate

to be paid.
§ 1309. Advancement during lifetime of testator.
§ 1310. Death of legatee, before testator, lineal descendants

take estate.
§ 1311. Devises of land, how construed.
§ 1312. Wills pass estate subsequently acquired.
§ 1313. Charitable, etc., bequest. Limitation as to time and

amount.



§ 1270. ^VHO MAY MAKE A WILL. Every person over
the age of eighteen years, of sound mind, may, by last will,
dispose of all his estate, real and personal, and such estate
not disposed of by will is succeeded to as provided in title
seven of this part, being chargeable in both cases with the
payment of all the decedent's debts, as provided in the Code
of Civil Proced'ire.

History: Enacted March 21, 1872, found.-! iii^.m § 1. Act
April 10, 1850, Stats. 1850, p. 177.

See Kerr's Cyc. C. C. for 247 pars, annotation.

58 C. 457, 516 (construed with other sections): 33 P. 920.
921 (requisite capacity to make will); 140 C. 282, 289, 73 P.
976 (in the whole title on wills "devise" is used with reference
to a testamentary disposition of land, and "legacy" with
reference to a like disposition of personalty).

EXECUTION AlVn REVOC ATIOX OP WIM.S.

As to generally, see 2 Church's New Probate Law and
Practice, 1535-1553.

As to burden of proof of testamentary capacity, see note 17
L. 494-497.

As to competency to make will, see 1 L. 161: 2 L. 66S; 6 L. 167.

As to construction of wills, see note § 1317, post.

685



§ 1270 CIVIL CODE. [Div.II.Pt.IV.

As to execution, revocation, and classes of will, see 2 Church's
New Probate Law and Practice, 1514, 1535-1553.

As to declaration of testator to impeach or invalidate will,
see 3 A. D. 395; 52 A. D. 167; 62 A. D. 80.

As to drunkenness as affecting testamentary capacity, see 39
L. 220-227.

As to effect of morphinism on testamentary capacity, see
39 L. 262-265.

As to effect of spiritualism, and belief in, upon testamentary
capacity, see 36 A. R. 426.

As to fraud and undue influence in connection with drunken-
ness, see 39 L. 220.

As to interpretation of wills, see note § 1317, post.

As to old age and physical infirmity as affecting testamentary
capacity, see 6 L. 167.

As to opinions of subscribing witnesses as to testamentary
capacity, see 39 L. 715-722.

As to presumption and burden of proof as to testator's sanity,
see 36 L. 621-641.

As to presumption arising when partial insanity has been
shown, see 41 A. R. 686, 688.

As to sufficiency of letter as will, see 15 L. 635.

As to testamentary capacity and insane delusions, see 8 A. R.
184.

As to testamentary capacity generally, see 84 A. D. 240.

As to testamentary capacity, insanity and partial insanity,
and its effect upon will, see 41 A. R. 686.

As to what constitute testamentary writings of wills, see
92 A. D. 284; 30 A. S. 717; 89 A. S. 486.

As to what instruments will be deemed wills, see 30 A. S. 717.

As to when insane delusions will invalidate will, see 63 A. S.
94.

After-acquired land, as affected by will. — See 8 W. & P.
7464.

Attestation of will. — See "Formalities and execution of", this
note.

Aversion to relatives as affecting mental capacity to make a
will. — See 117 A. S. 582.

Codicil — As to generally, see Kerr's Cyc. C. C. § 1287 and note;
2 Church's New Probate Law and Practice 1543", 1544; 8 A. C.
429; 1 L. N. S. 397; see also "Formalities and execution," this
note.

Same — Included in term will. — See 8 W. & P. 765.

Contract to make a will. — See 2 Church's New Probate Law
and Practice 1546.

Deeds as wills. — See 2 Church's New Probate Law and Prac-
tice 1544-1546; 7 A. C. 790; 13 L, N, S, 1203, 1204.

Disposition of land by will. — See 2 Obiter Dig. 984.

686



Tit.VI.ch.I.] WILLS, EXECUTION, ETC. § 1270

Execution, by will, of a power of appointment — What is
sufficient. — See 64 L. 849-918.

Execution of wills. — See "Formalities and executions" this
note.

Executory devises. — See 2 Obiter Dig. 968.

Extent of devise. — See 2 Obiter Dig. 968.

Foreign wills. — See Kerr's Cyc. C. C. §§ 1285, 1376 and notes;
2 Church's New Probate Law and Practice 1549; 2 L. N. S.
408-468.

Formalities and execution of — As to generally, see 2 Church's
New Probate Law and Practice 1539; 2 Obiter Dig. 984.

Same — Attestation. — See 114 A. S. 209-239; 8 L. 823-837; 1 L.
N. S. 393.

Same — Codicils — Form, sufficiency and effect thereof. — See
Kerr's Cyc. C. C. §■ 1287 and note; 2 Church's New Probate Law
and Practice 1543, 1544; 8 A- C. 429; 1 L. N. S. 397; 8 A. C. 429;'

1 L. N. S. 397.

Same — Contract to make. — See 2 Church's New Probate Law
and Practice 1546; 5 A. C. 495.

Same — Deed construed in aid of will. — See 2 Church's New
Probate Law and Practice 1546.

Same — Escrow deed, when not a will. — See 2 Church's New
Probate Law and Practice 1546.

Same — Foreign wills. — See Kerr's Cyc. C. C. § 1376 and note;

2 Church's New Probate Law and Practice 1549; 2 L. N. S.
408-468.

Same — Holographic wills — And of married woman. — See 2
Church's New Probate Law and Practice 1546-1548; 1 A. C. 373;
5 A. C. 636; 52 A. D. 591; 104 A. S. 22-34; 6 L. 775.

Same — Incorporating other papers by reference. — See 2
Church's New Probate Law and Practice 1544; 1 A. C. 395; 9
A. C. 105; 107 A. C. 70; 68 L. 355-386.

Same — Instruments construed not to be wills. — See 2 Church's
New Probate Law and Practice 1550.

Same — Instruments informally executed invalid as wills. —
See 2 Church's New Probate Law and Practice 1542.

Same — Mutual or reciprocal wills. — See Kerr's Cyc. C. C. § 1279
and note; 2 Church's New Probate Law and Practice 1549.

Same — Nuncupative wills. — See 2 Church's New Probate Law
and Practice 1548, 1549; 3 A. C. 317; S L. 40; 9 L. 829; 13 L. N.
S. 1092.

Same — Non-intervention wills. — See 2 Church's New Probate
Law and Practice 1550.

Same — Signature of testator — Necessity for — By mark valid
when. — See 2 Church's New Probate Law and Practice 1540;
2 A. C. 732; 7 L. 1193-1195; 22 L. 370; 65 L. 95-100.

Same — Subscribing and attesting witnesses, necessity fur. —

687



§ 1270 CIVIL CODE. [Div.IT,Pt.IV.

See 2 Church's New Probate Law and Practice 141, 142; 4 A.
C. 463; 4 A. C. 637; 5 A. C. 463; 6 A. C. 414; 14 L. 160.

Same — Wills in form of deeds. — See 2 Church's New Probate
Law and Practice 1544-1546; 7 A. C. 790; 13 L. N. S. 1204.

Fraudulent wills.— See 2 Obiter Dig. 974.

General devise.— See 2 Obiter Dig. 967.

Holographic wills — As to generally, see Kerr's Cyc. C. C.
§ 1277 and note; 2 Church's New Probate Law and Practice 1546-
1548; 5 A. C. 636; 52 A. D. 591; 104 A. S. 22-34; 6 L. 775.

Same — Codicil to.— See Kerr's Cyc. C. C. § 1277 and note.

Incorporation into will by reference, doctrine of. — See 1 A. C.
395; 9 A. C. 105; 107 A. S. 70-75; 6 L. 353-386.

Instrument, when a will. — See 49 A. S. 221.

Intention necessary to will. — See 8 W. & P. 7467.

Intoxication as affecting testamentary capacity. — See Kerr's
Cyc. C. C. § 1270 and note.

Letter as will, sufficiency of. — See 15 L. 635.

Limitation on right to make a will. — See "Wills", this note;
also 2 Church's New Probate Law and Practice 1536-1538; 52 A.
S. 104; 30 L. 460.

Married woman, will of. — See Kerr's Cyc. C. C. § 1273 and
note.

Morphine habit as affecting testamentary capacity. — See 39 L.
262.

Mutual or reciprocal wills. — See Kerr's Cyc. C. C. § 1279 and
note; 2 Church's New Probate Law and Practice 1549.

Nuncupative wills — How executed. — See Kerr's Cyc. C. C.
§ 1288 and note; 2 Church's New Probate Law and Practice 1548;
8 L. 40; 9 L. 829; 13 L. N. S. 1092.

Same — Requisites to validity of. — ^See Kerr's Cyc. C. C. § 1289
and note.

Same — Statutory restrictions as to time of making. — See 3
A. C. 317; 13 L. 1092.

Oral agreement to make devise of land, validity of. — See
5 A. C. 495.

Requisites of valid testamentary disposition. — See 1 A. C. 51.

Revocation of wills — As to generally, see Kerr's Cyc. C. C.
§§ 1292, 1295, 1296, 1297, 1301, 1302, 1303 1304, 1305, 1374 and
notes; 2 Church's New Probate Law and Practice 1551-1553; 10
A. C. 535; 5 L. N. S. 1084.

Same — By subsequent marriage of man. — See Kerr's Cyc. C.
C. §§ 1298, 1299 and notes; 7 A. C. 786.

Same — By subsequent marriage of woman followed bj' birth
of child. — See Kerr's Cyc. C. C. §1300 and note; 5 A. C. 795; 5
L. N. S. 1034.

Same — Evidence of revocation. — See Kerr's Cyc. C. C. § 1293
and note; 10 A. C. 535.

Same — Revocation by divorce of testator. — See 3 A. C. 230.



Tit.VI.ch.I.] WILLS, EXKCUTrON, lOTO. § 1271

Right of testamentary disposition. — See 2 Churcli's New
Probate Law and Practice 1535; 7 A. C. 450; 59 A. S. 179; 12
L. 116; 12 L. 161; 9 L. N. S. 121.

Right to dispose of property by will. — See 2 Obiter Dig. 963.

Several testamentary instruments when taken and construed
together. — See Kerr's Cyc. C. C. § 1320 and note.

Spiritualistic places as affecting testamentary capacity. — See
36 A. R. 426.

Testamentary capacity — As to generally, see 2 Church's New
Probate Law and Practice 1538, 1539; 84 A. D. 240; 8 A. R. 184
36 A. R. 426; 41 A. R. 686; 117 A. S. 582, 585; 1 L. 161; 2 L.
668; 6 L. 167; 39 L. 262-265; 3 L. N. S. 172.

Same — Age and physical infirmity as affecting. — See Kerr's
Cyc. C. C. § 1270 and note; 2 Church's New Probate Law and
Practice 1538.

Same — Aversion to relatives as affecting. — See 117 A- S. 5S2-
585.

Same — Determining of deceased. — See 2 Obiter Dig. 965.

Same — Fraud, undue influence, etc., as affecting. — See 2
Church's New Probate Law and Practice 1539; 10 A. C. 600; 39
L. 220; 6 L. N. S. 202, 204.

Same — Morphinism as affecting. — See 39 L. 262-265.

Same — Spiritualism, belief in, as affecting. — See 36 A. R. 420.

Trust under wills — As to generally, see 2 Church's New
Probate Law and Practice 1434-1454.

Undue influence. — See 2 Obiter Dig. 975.

Unequitable wills. — See Kerr's Cyc. C. C. § 1270 and note.

Unnatural wills. — See Kerr's Cyc. C. C. 1270 and note.

Validity of e.\ecutory devise. — See 2 Obiter Dig. 984.

What constitutes a will. — See 2 Church's New Probate Law
and Practice 1550; 92 A. D. 284; 30 A. S. 717; 89 A. S. 500; 8
W. & P. 7463, 7468.

Will as muniment of title. — See 8 W. & P. 7467.

Withdrawing property from creditors. — See 2 Obiter Dig. 934.

Witnesses to wills. — See 2 Obiter Dig. 984.

Witnessing execution of, formalities as to. — See Kerr's Cyc-
C. C. S 1298 and note.



§1271. .M(»>(KM.VM.\( IN((KMrKTE>T (repealedl.

Hi.«<t<»r.v: Enact<'d March 21. 1872; repealed March 30. 1S74.
Code Amdts. 1873-4, p. 232.

As to execution, revocation, and classes of wills, see note
§ 1270, ante; 2 Church's New Probate Law and Practice, 1514,

1535-1553.

689



§§ 1272, 1273 CIVIL CODE. [Div.II,Pt.IV.

§1272. WILL, OR PART THEREOF, PROCURED BY
FRAUD. A will, or part of a will, procured to be made by
duress, menace, fraud, or undue influence, may be denied
probate; and a revocation, procured by the same means, may
be declared void.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 143 pars, annotation.

79 C. 313, 316, 21 P. 758 (construed and applied by implication
With § 1575).

As to execution, revocation, and classes of wills, see note
§ 1270, ante; 2 Church's New Probate Law and Practice, 1514,
1535-1553.

As to fraud and undue influence in connection with will,
see 2 L. 668; 4 L. 738; 8 L. 261.

As to honest intercession, argument, and persuasion, see
16 A. D. 257-259.

As to influence gained by kindness and affection, see 16 A.
D. 257-259.

As to presumption of undue influence, see 16 A. D. 257; 44
A. R. 537; 21 A. S. 94.

As to provision of will, as affecting issue of undue influence,
see 6 Prob. Rep. Ann. 300.

As to undue influence arising from illicit relations between
parties, see 16 A. D. 257-263.

As to undue influence by mistress, see 4 Prob. Rep. Ann. 475.

As to what amount of undue influence affects will, see 31
A. S. 670; 1 Prob. Rep. Ann. 117.

As to what influence or importunity will invalidate will, see
16 A. D. 257-263.



§ 1273. WILL OF MARRIED WOMATf. A married woman
may dispose of all her separate estate by will, without the
consent of her husband, and may alter or reroke the will in

like manner as if she were single. Her will must be executed
and proved in like manner as other wills.

History: Enacted March 21, 1872, founded upon § 2 Act April
10, 1850, Stats. 1850, p. 177; amended March 30, 1874, Code Amdts.
1873-4, p. 232.

See Kerr's Cyc. C. C. for 12 pars, annotation.

70 C. 140, 142 (erroneously cited for § 1277), 11 P. 587, 588
(same error).
As to execution, revocation, and classes of wills, see note

690



TitVI.Ch.I.] PASSING AND TAKING BY. §§ 1274, 1275

§1270, ante; 2 Church's New Probate Law and Practice. 1514.
''as 'to'power of married women to dispose of property by will,
see 57 A. D. 340-349.

§ V^U >VHAT MAY PASS BY AVILL. Every estate and
interest* in real or personal property, to which heirs, hus-
band widow, or next of kin might succeed, may be disposed
of by will, exceiit as othenvise provided in sections fourteen
hundred and one and fourteen hundred and two.
History: Enacted March 21, 1S72.

See Kerr's Cyc. C. C. for 6 pars, annotation,
lion "^R? ^95 44 P. 734 (construed).

is S eicuti'on revocation, and classes of wills, see note
§ mo. ante! 2 Church's New Probate Law and Practice. 1514.

''As'^to^'testamentary power of husband and wife over com-
munity property, see Kerr's Cyc. C. C. § 1402 and note.

§ 1*75 WHO MAY TAKE BY WILL. A testamentary dis-
position may be made to any person capable by law of taking
the property so disposed of, except that corporations other
than counties, municipal . corporations, and corporations
formed for scientific, literary, or solely educational or hospi-
tal purposes, cannot take under a will, unless expressly
authorized by statute; subject, however, to the provisions of
section thirteen hundred and thirteen.

HIstorv: Enacted March 21. 1872; amended March 29, 1874
roToArndts 1873-4, p. 275; amended by Code Comna.ss.on, Act
Code Amais. loio t, t- unconsti-

March 16, 1901, Stats, and Amdts. 1900-1, p. '*";' j'^'!; .

rt- 1 c^^ history § 4 ante; amendment substantially re en
ITd Ma h 'o 1903' Stats, and Amdts. 1903. p. ^58. me e 1,
^mSinTthe words "counties, " - icipal -rporation. and t^^^^
amendment of the Code Commission '"^f ^J^^' ^^^ "^"'''"JJs
omitted words. March 21. 1905, Stats, and Amdts. 1905. p. 6O0.

See Kerr's Cyc. C. C. for 23 pars, ^""^tftion

59 C. 131 (construed and «PP'f ..^^^'V^ 6 1 fcons^rued and
C. 308. 309 (construed and appUed) . 3 C. 6^-0.^6.1 i^ ^ ^^^

applied with §1313). 1-3 ^- „^' ^ Mvrick's Prob. Rep. 134. 135

strued and ^PP^^^^^'^f J-.V^^'Vafs "Mvrick's Prob. Rep. 213
(construed and applied with §131,i). .vijrit«.o

(construed and applied).

691



§ 1276 CIVIL CODE. [Div.II,Pt.IV.

As to capacity of corporation to take by devise, see 2 Prob.
Rep. Ann. 674-679.

As to capacity of corporation to take title to real estate, see
94 A. D. 381-387.

As to collateral attack upon right of corporation to take by
devise, see 2 Prob. Rep. Ann. 674-679.

As to devise to charitable uses, see 80 A. D. 315.

As to devise to corporations, see 18 A. D. 541; 80 A. D. 315.

As to execution, revocation, and classes of wills, see note
§ 1270, ante; 2 Church's New Probate Law and Practice, 1514,
1535-1553.

As to extrinsic evidence as applied to wills, see 4 Prob. Rep.
Ann. 467-476.

As to gifts by will designating no donee, see 80 A. D. 314.

As to misnomer in gife to legatee, see 4 Prob. Rep. Ann. 81.

As to position of municipal corporations as legatees or
devisees, see 4 Prob. Rep. Ann. 113-116.

As to right of private persons to contest power of corpora-
tion to take or hold property, see 2 L. 387; 13 L. 293-297.

As to whether heirs of a testator may assail a devise or
bequest to a corporation, see 60 A. S. 318- 321.



§ 1276. WRITTEN WILL, HOW TO BE EXECUTED. Every
will, other than a nuncupative will, must be in writing; and
every will, other than an olographic [holographic] will, and
a nuncupative will, must be executed and attested as follows:

1. It must be subscribed at the end thereof by the testator
himself, or some person in his presence and by his direction
must subscribe his name thereto;

2. The subsei iptioii must be made iu the presence of the
attesting- witnesses, or be acknowledged by the testator to
them to have been made by him or by his authority;

3. The testator must, at the time of subscribing- or acknowl-
edging the same, declare to the attesting witnesses that the
instrument is his will; and,

4. There must be two attesting witnesses, each of whom
must sign the same as a witness, at the end of the will, at
the testator's request and in his presence.

History: Enacted March 21, 1872, founded upon § 3 Act April



Online LibraryCaliforniaThe codes of California as amended and in force at the close of the thirty-eighth session of the Legislature, 1909 (Volume 2 Civil Code) → online text (page 58 of 156)