liberality has been shown by the decisions in upholding abbreviated dates and complete but incorrect dates.

The cases of Estate of Thorn10 and Estate of Francis11 present the question as to whether printed surplusage which is a part of the instrument should be fatal to the holographic will. In the former case the testator wrote out the entire document but inserted, with a rubber stamp,12 the word "Cragthorn" in two blank spaces left in the dispositive clause. The dispositive clause without the aid of the two stamped words gave a full and clear description of the property to be devised. In Estate of Francis, the first two figures of the year "1919" were printed. The will would have been valid if the two written figures alone had been used. In both cases the Supreme Court refused to probate the writings as holographic wills. The court took the position that since the testator had made the printed matter a part of the will, the will was not entirely written in the hand of the testator and therefore did not comply with the requirements of Section 1277 of the Civil Code. It is to be noted that the printed words and figures in the documents were unnecessary and immaterial in determining the disposition and date of the respective writings.

18

In Estate of Thorn," the court disposes of the decision in Estate of Soher1 in a far from satisfactory manner. In the latter case the testator affixed to a will wholly written in his own hand an attestation clause which one witness then signed. It was held that the attestation clause was not part of the will, and the remainder of the writing was probated as a holographic will. The test laid down in Estate of Thorn16 and Estate of Francis1 seems to be that if the testator has adopted immaterial printed matter as a part of his will the writing is not holographic. The act of the testator in making printed matter a part of his will is the controlling consideration. On the other hand, the court in Estate of Soher18 was not influenced by the fact that the testator had adopted writings not in his hand as a part of his will. Following the test that printed matter which is made a part of the will by the testator is a part of the will, it is

8 Estate of Lakemeyer (1901) 135 Cal. 28, 66 Pac. 961, 87 Am. St. Rep. 96; Estate of Chevallier (1911) 159 Cal. 161, 113 Pac. 130.

9 Estate of Clisby (1904) 145 Cal. 407, 78 Pac. 964; Estate of Fay (1904) 145 Cal. 82, 78 Pac. 340, 104 Am. St. Rep. 17.

10 (Aug. 12, 1920) 183 Cal. 512, 192 Pac. 19.

11 (August 16, 1923) 66 Cal. Dec. 176, 217 Pac. 746.

12 The court held that stamped words were the same as typewritten words in the holographic will and fell within the rule of Estate of Dreyfus, supra, n. 5.

13 Supra, n. 8.

14 Supra, n. 10.

15 (1889) 78 Cal. 477, 21 Pac. 8. Accord, Succession of Roth (1879)

31 La. Ann. 315; Brown v. Beaver (1856) 48 N. C. 505, 67 Am. Dec. 255.

16 Supra, n. 10.

17 Supra, n. 11.

18 Supra, n. 15.

hard to see why an attestation clause made a part of a will by a testator is not also a part of the will. Or if the court can disregard an attestation clause made a part of the will by the testator, why can it not also disregard other printed surplusage made a part of the will by the testator?1o

Aside from the apparent inconsistency in the decisions, the cases of Estate of Thorn20 and Estate of Francis1 are opposed to the rule followed in other jurisdictions. The general view is that writings or printed matter not in the hand of the testator, which are mere surplusage and not material to the meaning of the will, are not fatal to the holographic will." In the Thorn case, the court mentioned the decision of McMichael v. Bankston" but refused to follow the view of that case. The court said that the principle of the Louisiana court could not be followed in view of the mandatory requirements of our statute. The fact that both Section 1581 of the Louisiana Code and Section 1277 of the California Civil Code were almost literal translations of Article 970 of the Code of Napoleon was overlooked. The court in Estate of Thorn,25 regarding the stamped words as mere surplusage, could have and should have allowed the probate of the writing. Such a step would not have departed from the purpose of Section 1277 of the Civil Code. The purpose of the legislature in requiring a holographic will to be written in the hand of the testator was to prevent the

19 A technical distinction may be made between cases where an attestation clause not in the hand of the testator is affixed by him to the will and cases where a portion of the date, dispositive clause, or signature is not in the testator's handwriting. The attestation clause is not a legal requisite of the holographic will, while the date, dispositive clause, and signature are legal requisites. Following this distinction, it is easier for the court to say that the attestation clause, not being a legal requisite, is not a part of the holographic will. It is submitted that the courts should also hold that printed surplusage in the date, dispositive clause, or signature is also not a legal requisite and therefore not a part of the will.

20 Supra, n. 10.

21 Supra, n. 11.

22 Cases collected in 20 Ann. Cas. 373; McMichael v. Bankston (1872) 24 La. Ann. 451, where the words "to" and "acres" written by one other than the testator in the dispositive clause were held not to invalidate the will; Baker v. Brown (1904) 83 Miss. 793, 36 So. 539, citing the Louisiana decision with approval; In re Noyes' Estate (1909) 40 Mont. 190, 105 Pac. 1017, 20 Ann. Cas. 366, where the test of omitting the printed figures from the date was applied with no avail as three figures in the date were printed. In that event, it is clear that the printed figures are not surplusage since the one written figure would not give an abbreviated date but an incomplete date. In cases such as Succession of Robertson (1897) 49 La. Ann. 868, 21 So. 586, 62 Am. St. Rep. 672, and those cited, supra, n. 7, a like result would be reached.

23 Supra, n. 22.

24 "Le testament olographe ne sera point valable, s'il n'est ecrit en entier, date, at signe de la main du testateur; il n'est assujetti a aucune autre forme.” 25 Supra, n. 10.

possibility of forgery.20 Printed surplusage in the will does not in any way affect that possibility.

Although the decision in the Thorn case is severe, a dictum in the Estate of Francis" carries the doctrine to a more strict conclusion. The court said that even assuming the will was fully dated in the hand of the testator, the fact that another date appeared on the will, in which the figures giving the century were printed, would invalidate the will. In a case such as the dictum presupposes, the complete date, the dispositive clause, and the signature would be written in the hand of the testator. The fact that another printed date appears on the will should be no more controlling than a printed border, caption, or letter head on the paper upon which the will is written.2

28

In view of the results in the principal cases, which require absolute precision instead of a substantial compliance with the statute, it is hardly necessary to suggest the need for a change in the law of holographic wills. Such decisions in the books call forth just criticism from those who believe the law is a maze of arbitrary technicalities.20 If the court is as helpless as it appears to be in view of the wording of Section 1277 of the Civil Code, it is time for a legislative change which will at least not allow printed surplusage to overthrow the sanctity of the last will and testament.

J.C.J.

WILLS: REVOCATION BY OPERATION OF LAW: SUFFIENCY OF MENTION TO PREVENT MARRIAGE FROM WORKING REVOCATION OF PRIOR WILL-The testator made a will, disposing of the whole of his property, in which he named as executrix the woman whom three months later he married. The will contained no other reference to her. HELD: She was neither "provided for in the will, or in such way mentioned therein as to show an intention not to make such provision;" consequently the subsequent marriage worked a revocation of the will by the operation of Section 12991 of the California Civil Code. Estate of Ryan.2

The opinion of the court fails to reveal the exact ground upon which the widow of the testator, now contesting the will, was held

26 Estate of Dreyfus, supra, n. 5.

27 Supra, n. 11.

28 Baker v. Brown, supra, n. 22.

29 Charles Macklin once said, "The law is a sort of hocus-pocus science, that smiles in yer face while it picks yer pocket, and the glorious uncertainty of it is of mair use to the professors than the justice of it." Cohen, Commercial Arbitration and the Law, p. 39.

1 Cal. Civ. Code, § 1299. "Effect of marriage of a man on his will. If, after making a will, the testator marries, and the wife survives the testator, the will is revoked, unless provision has been made for her by marriage contract, or unless she is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation must be received."

2 (June 19, 1923) 65 Cal. Dec. 564, 216 Pac. 366.

not to have been "in such way mentioned therein as to show an intention not to make . . . provision" for her. Her name did appear within the four corners of the will-she was "mentioned". Was the mention insufficient because not made in such a way as to show the required intention-"an intention not to make ... provision" for her? The will taken as a whole mentioned her and disclosed no intention to make provision for her. But is "no intention to make provision" equivalent to "an intention not to make provision"? The court uses language in part of its opinion which justifies the conclusion that a mention disclosing "no intention to make provision" is not enough to prevent the subsequent marriage from working a revocation of the will. If this be the true import of the decision, then when a will contains no provision for the woman the testator subsequently marries, it may be successfully contested by his widow unless it contain a clause specifically disinheriting her. Another ground to support this conclusion is that the wording of the code section might be construed to require that the mention itself disclose the intention not to provide, i.e., that it is not enough that such intention can be collected from the will taken as a whole.

On the other hand the court, in holding extrinsic evidence that the testator had been engaged to the contestant for seven years to have been properly excluded by the trial court, says: ". . . it would have been improper to go outside the language of the will itself to ascertain whether or not the will was executed by the testator with his approaching marriage in mind and with reference to it." Again, in reference to the clause appointing the contestant executrix: "We cannot say it appears from this clause of the will that the decedent intended not to provide for her even though she should become his wife." Does this language imply that the mention, though it did disclose an intention not to provide, was insufficient nevertheless because, unaided by the inadmissible extrinsic evidence, it did not reveal an expectation on the part of the testator subsequently to make the woman his wife? The history of the rule that a subsequent marriage revokes a prior will as well as the judicial declarations of the policy behind the rule would seem to afford some justification for such an interpretation of the code section.

If the true ground of the decision in the instant case be that the mention does not disclose "an intention not to make . . . provision", the case is not inconsistent with Estate of Kurtz. If, however, the instant case is a holding that a mention, in order that it may prevent revocation of the will, must be a mention of the woman in her character as prospective wife of the testator, the two cases do con

a 65 Cal. Dec. 564, 566.

See comment in 11 California Law Review, 210, on Estate of Kurtz (1922) 64 Cal. Dec. 509, 210 Pac. 959.

Supra, n. 4.

flict. For the provision which was held sufficient to prevent revocation in the Kurtz case did not reveal an expectation on the part of the testator to make the contestant his wife; the extrinsic evidence of an engagement subsisting when the will was executed, though admitted for the purpose of rendering certain an ambiguous description of a class provided for in the will, could not have been used, according to the instant case, for the purpose of satisfying the requirement now under discussion. Evidence ruled out for one purpose but admitted for another can be used only for the latter. Perhaps, however, the Ryan case and the Kurtz case are reconcilable, even if the former does announce such a requirement, on the ground that though a "mention" must be of the testator's future wife in her character as such, a "provision" need not be. This seems to be the construction placed upon the Washington statute (identical in terms with Section 1299 of the California Civil Code) in Re Adler's Estate."

D.B.M.

WORKMEN'S COMPENSATION ACT: INJURY TO EMPLOYEES LEAVING NO DEPENDENTS: UNCONSTITUTIONALITY OF PROVISION FOR PAYMENT BY EMPLOYER TO STATE-The California legislature in 1919 passed a Vocational Re-education and Rehabilitation Act1 which provided that whenever an employee, who suffered a compensable injury which resulted in death, left no dependents, the employer or his insurance carrier should be required to pay into a special state fund the sum of $350. Money thus accumulated was by the act to be spent by the Industrial Accident Commission in providing for the rehabilitation of men injured in industry. Sections 5 and 6 gave the Commission jurisdiction over all controversies arising under the act.

In the case of Yosemite Lumber Co. et al. v. Industrial Accident Commission, the Supreme Court held that under these sections the Industrial Accident Commission had no jurisdiction because the act created a liability different from that permitted under Section 21, Article 20 of the California constitution, which was construed not to authorize the legislature to create liabilities by employers to other than their own employees and dependents of their employees. The court, however, also said that the act was a tax measure and invalid as such. The Industrial Accident Commission, on the theory that the decision should be confined to the jurisdiction of the Commission, brought a second suit in the Superior Court.

• Macdougald v. Maguire (1868) 35 Cal. 274, 95 Am. Dec. 98; 23 C. J. 56; 1 Wigmore on Evidence, § 13.

7 (1909) 52 Wash. 539, 549, 100 Pac. 1135.

1 Cal. Stats. 1919, p. 273.

2 (1920) 187 Cal. 774, 204 Pac. 226.

8 Cal. Const., Art. 20, § 21, as amended in 1918.