Theppetitioner, who is the widow of the deceased, testifies that this instrument is in his handwriting and the necessity of subscribing witnesses is thus dispensed with. purports, as will be seen, to be "copy," but since it was made by the testator himself, it may be treated as a duplicate, Now, a will in duplicate is, none the less, a valid instrument. As is observed by the leading English text writer on the subject "Sometimes as a testator for greater security executes his will in duplicate, retaining one part and committing the other to the custody of another person (usually an executor or trustee)"
That is what happened in the case at Bar. This instrument, it will be seen was executed in San Francisco and the duplicate copy now offered seems to have been forwarded to the estater's wife, then in England, who states that it has been in. her possession since the beginning of December, 1919, the other duplicate copy being retained by the testator. It appears that the latter cannot now be found: but that fact affords no obstacle to the probate of the other duplicate. As was observed by an eminent New York Judge:—"Where an agreement is reduced to writing in duplicate, each being exactly like the other, then there can be no reason te-require a party, in proving such an instrument, to produce both, It is very common to execute leases and other instruments in duplicates, each party having one and where they are precisely alike either party can come into court and produce the duplicate which he has and prove it:
and he need not prove or cause the production of the other. So if the same party has duplicate instruments executed for his own benefit and safety, each duplicate expresses the entire agreement of the parties and either might be applicable of wills.
Where the duplicates are exactly alike each expresses and contains the will of the testator: and either may be proved and admitted to probate without the other. There can be no conceivable reason for proving both or for having both admitted to probate: and no authority in this country or England has been found which holds that in such a case it is necessary that both should be proved or admitted to probate."
The loss of the other duplicate copy having been proved, the instrument before us must be treated as the actual one and it appears from the evidence to have been executed when deceased was of sound mind and disposing memory and was intended by him as his last will and testament. We must find it entitled to probate as such.
The instrument, it will be seen, names no executors but that also is
Text read from the printed page and cleaned; old type leaves the occasional error.