36 There being no allegations to the contrary, the proper notice is presumed to have been published; 35 and where the record does not show that proof of service of notice was not made, the presumption is that notice was served and proof made at the hearing. In the absence of any other record, recitals in an order that citations issued to the heirs, are sufficient to warrant the presumption that the order was regularly made, and that the citation was duly issued and served.87 Sec. 622. Rights of married woman. A married woman may dispose of all her separate estate by will, without the consent of her husband, and may alter or revoke the will in like manner as if she were single. Her will must be executed and proved in like manner as other wills. 38 Sec. 623. What may be disposed of by a will. Every estate and interest in real or personal property to which heirs, husband, widow, or next of kin might succeed, may be disposed of by will: Provided, no marriage contract in writing has been entered into between the parties; no man fact that the defendant as to whom the service was defective was not duly served within a year from the filing of the petition; contestant's attention not having been called to the defect within that time. The defendant as to whom service was defective being a necessary party, the court had power to order him to be brought in after expiration of the year, both under general equitable principles and practice, and under the Code of Civil Procedure, Section 389, providing that "the court may determine any controversy between the parties before it when it can be done without prejudice to the rights of others, or by saving their rights, but, when a complete determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in," the application of said section not being limited to absent persons not named as parties in the first instance. San Francisco v. Superior Ct., 116 Cal. 443, 48 Pac. 379. 35 Langdon v. Blackburn, 109 Cal. 19, 41 Pac. 814. 36 In re Estate of Twombley, 120 Cal. 350, 52 Pac. 815. 37 Moore v. Earl, 91 Cal. 632, 27 Pac. 1,087. 38 Snyder, 8,890; Wilson, 6,800; California, 1,273 (Kerr), identical. while married, shall bequeath more than two-thirds of his property away from his wife, nor shall any woman, while married, bequeath more than two-thirds of her property away from her husband: Provided, that no person who is prevented by law from alienating, conveying or incumbering real property while living, shall be allowed to bequeath same by will.39 Sec. 624. Will may be made to anyone capable of taking. A testamentary disposition may be made to any person capable by law of taking the property so disposed of, except that no corporation can take under a will, unless expressly authorized by its charter or by statute so to take.1o Sec. 625. Nuncupative will. 40 To make a nuncupative will valid, and to entitle it to be admitted to probate, the following requisites must be observed: 1. The estate bequeathed must not exceed in value the sum of one thousand dollars. 2. It must be proved by two witnesses who were present at the making thereof, one of whom was asked by the testator at the time to bear witness that such was his will, or to that effect. 3. The decedent must, at the time, have been in actual military service in the field, or doing duty on shipboard at sea, and in either case in actual contemplation, fear or peril of death, or the decedent must have been at the time in expectation of immediate death from an injury received the same day.11 41 Sec. 626. Mutual will. A conjoint or mutual will is valid, but it may be revoked by any of the testators in like manner with any other will.42 39 Snyder, 8,892; Act of March 27, 1909. 40 Snyder, 8,893; Wilson, 6,803; California, 1,275 (Kerr), similar; Estate of Bulner, 59 Cal. 131. 41 Snyder, 8,894; Wilson, 6,804. 42 Snyder, 8,895; Wilson, 6,805. Sec. 627. A conditional will may be denied probate. A will, the validity of which is made by its own terms conditional, may be denied probate, according to the event, with reference to the condition.43 Sec. 628. Execution of wills-Olographic wills. 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. Every will, other than a nuncupative will, must be in writing; and every will, other than an olographic 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 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. 3. The testator must, at the time of subscribing or acknowledging 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 his name as a witness at the end of the will at the testator's request and in his presence." 44 It is not necessary that the attestation clause of the witnesses be attached to the will, in order to make the will valid. In its absence it can be shown by competent evidence that the will was attested as required by law. If the will was signed by the witnesses, the absence of the attestation clause simply changes the mode of proof that the will was witnessed as required by law.45 43 Snyder, 8,896; Wilson, 6,806. 44 Snyder, 8,897; Wilson, 6,807; California, 1,276 and 1,277 (Kerr), identical. 45 Ward v. Board, 12 Okla. 267, 70 Pac. 278. The statute does not require that an olographic will be subscribed by the testator at the end thereof. It is sufficient that it be signed by him, and this signing may be in the beginning or any part of the document. Stratton v. Sec. 629. Nuncupative will need not be in writing. A nuncupative will is not required to be in writing, nor be declared or attested with any formalities. 46 Sec. 630. Witnessing a will. A witness to a written will must write, with his name, his place of residence; and the person who subscribed the testator's name, by his direction, must write his own name as a witness to the will. But a violation of this provision does not affect the validity of the will." Sec. 631. Codicil-Effect of. The execution of a codicil referring to a previous will has the effect to republish the will as modified by the codicil.48 Sec. 632. The law of what place governs as to a will. A will of real or personal property, or both, or a revocation thereof, made out of this State by a person not having his domicile in this State, is as valid when executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, as if it were made in this State, and according to the provisions of this chapter." Sec. 633. The law must be followed as to the execution of a will. No will, or revocation is valid, unless executed either according to the provisions of this chapter, or according to the Morgan, 112 Cal. 513, 44 Pac. 1,028. A will with only one attesting witness cannot be admitted to probate. Estate of McCabe, 68 Cal. 519, 9 Pac. 554. Where a testator signs his will in the presence of the subscribing witnesses, whereupon the witnesses sign at his request, and the subscribing witness then asks the testator if the paper was his will, to which he replied, "yes," in the presence of the witnesses, the publication was sufficient. Estate law of the place in which it was made, or in which the testator was at the time domiciled.50 Sec. 634. Change of domicile. Whenever a will, or a revocation thereof, is duly executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, the same is regulated as to the validity of its execution, by the law of such place, notwithstanding that the testator subsequently changed his domicile to a place by the law of which such will would be void.51 Sec 635. Where a will may be deposited. Every county judge must deposit in his office any will delivered to him for that purpose, and give a written receipt to the depositor; and must enclose such will in a sealed wrapper, so that it cannot be read, and indorse thereon the name of the testator, his residence and the date of deposit; and such wrapper must not be opened until its delivery under the provisions of the next section.52 Sec. 636. How such will may be delivered. A will deposited under the provisions of the last foregoing section must be delivered only: 1. To the testator in person. 2. Upon his written order duly proved by the oath of a subscribing witness. 3. After his death, to the person, if any, named in the indorsement on the wrapper of the will; or, 4. If there is no such indorsement, and if the will was not deposited with the county judge having jurisdiction of its probate, then to the county judge who has jurisdiction.53 50 Snyder, 8,902; Wilson, 6,812. 51 Snyder, 8,903; Wilson, 6,813. 52 Snyder, 8,904; Wilson, 6,814. 53 Snyder, 8,905; Wilson, 6,815. |