The opinion
TRAYNOR, J.
I dissent.
In my opinion the decedent did not comply with the requirement of section 53 of the Probate Code that a holographic will must be “signed by the hand of the testator himself.” Although this section does not require the signature to be affixed at the end of the instrument offered for probate (compare § 50(1)), it does require the name of the decedent, wherever placed, to be written with the intention of executing the instrument as a will. (Estate of Manchester, 174 Cal. 417, 421 [ 163 P. 358 , Ann.Cas. 1918B 227, L.R.A. 1917D 629 ] ; see cases collected in 19 A.L.R.2d 926 .)
Regardless of where the name may appear in the instrument, there is always the possibility, of course, that it was intended as a signature. The mere existence of that possibility, however, is not enough to permit a reasonable inference that it was so intended. When the name is used to identify the decedent as the author of the alleged will as in Estate of Kinney, 16 Cal.2d 50 [ 104 P.2d 782 ] (“I Anna Leona Graves Kinney, do bequeath all my possessions to my four sisters”), or to identify the instrument as decedent’s will as in Estate of Brooks, 214 Cal. 138 [ 4 P.2d 148 ] (“This is my will—Elizabeth Ryan Brooks”), and in addition the instrument appears to be a complete testamentary document, it may reasonably be inferred that the name was placed where *577 it was with the intention of executing the instrument. In such cases the name is linked to the alleged testamentary act and the probabilities that it was intended as a signature are strong. In the present case, on the contrary, decedent’s name appears only in the description of her property. It is not part of the description of the instrument itself or of the purpose for which it was written. The holding that under such circumstances the mere fact that the alleged will appears to be a complete testamentary instrument is evidence that it was signed, confuses the question whether it was intended as a will with the question whether the name appearing thereon was intended as a signature. As this court pointed out in Marks v. Walter G. McCarty Corp., 33 Cal.2d 814, 820 [ 205 P.2d 1025 ], quoting Chief Judge Cardozo in Mesibov, Glinert & Levy v. Cohen Bros. Mfg. Co., 245 N.Y. 305, 311-312 [ 157 N.E. 148 ], “ ‘We may, indeed, infer from the delivery of the writing that the defendant intended to assume the obligation of a contract, whether the document was signed or unsigned. It might have intended as much if there had been no writing whatever. It may even have supposed that a writing was unnecessary. Something more must be found before the statutory requirements can be held to be obeyed. The defendant must have intended not merely to contract, but to sign. We see no mark of such purpose. ’ ” No inference was drawn in the Marks case that defendant’s name was intended as a signature from the fact that it appeared at the head of a complete instrument. Similarly, in this case the words “Bonds belonging solely to Helene B. Bloch” provide no evidence that decedent placed her name in the body of the instrument with the intent that it operate as an executing signature, and, accordingly, it is immaterial that the instrument may otherwise appear to be a complete testamentary act.
“ [T]he right to make testamentary disposition of property is not an inherent right or a right of citizenship, nor is it even a right granted by the constitution. It rests wholly upon the legislative will, and is derived entirely from the statutes. In conferring that right the legislature has seen fit to prescribe certain exactions and requirements looking to the execution and authentication of the instrument, and a compliance with these requirements becomes necessary to its exercise.” (In re Walker, 110 Cal. 387, 390 [ 42 P. 815 , 52 Am.St.Rep. 104 , 30 L.R.A. 460 ].) It is the duty of a *578 court to deny probate to any instrument that does not meet the requirements set by the Legislature, regardless of sympathy for the wishes of a decedent that may be thwarted by adherence to the statute of wills. (Estate of Seaman, 146 Cal. 455, 463, 466 [ 80 P. 700 , 106 Am.St.Rep. 53 , 2 Ann. Cas. 726]; Estate of Moore, 92 Cal.App.2d 120, 122 [ 206 P.2d 413 ].)
I would reverse the order admitting the instrument to probate.
Edmonds, J., concurred.