with the mortgage and the deed of trust had ceased to be of any force.

Regarding a purported sale to Spring on December 11, 1912, by L. W. Clark under and pursuant to the Galli trust deed of the north half of section 19, it was held that the trustee had no authority to make it.

Among the conclusions of law was one to the effect that Spring's mortgage was prior to that of plaintiff on the northeast quarter of section 19.

Appellant insists that since the record title was in O. J. Kjellman when the Galli and Wilson notes were transferred to him by William A. Kjellman, and since the deed from the Trauzettels merely recited that the property was "subject to" the Dodds mortgage, he had no notice of William A. Kjellman's assumption of personal liability, and was therefore a purchaser in good faith of the Galli and Wilson notes and liens in the hands, not of the mortgagee, but of a third party.

It is true that William A. Kjellman divested himself of title by a deed to O. J. Kjellman on January 5, 1911. The appellant insists that the purchase by William A. Kjellman of the Galli and Wilson encumbrances after he had parted with the title to the land did not work a merger. He admits that as between Mr. Kjellman and the Trauzettels an estoppel may apply, but insists that he had no notice (and could have none) of the personal assumption of the mortgage debt by William A. Kjellman in and by the terms of the unrecorded escrow agreement. But the mere fact that the deed to Kjellman from the Trauzettels did not recite his personal liability would not relieve him from an assumption of such burden nor prevent equities against him from being asserted against one who purchased notes after maturity and took assignments of the mortgage and the trust deed supporting said notes. The promise by the mortgagor's grantee personally to be answerable for the payment of the mortgage may appear and bind such grantee because of a clause in the deed or by a separate written instrument which need not be executed with the formalities necessary to a deed and which, if preceding the execution of the deed of conveyance, is not so merged in the deed that the omission of the assumption clause from the latter instrument will release the vendee from his prior covenant. Indeed, the agreement may rest wholly in parol, and

in such case is not within the statute of frauds. (27 Cyc. 1344"d"; Jones on Mortgages, sec. 748; Hopkins v. Warner, 109 Cal. 133, [41 Pac. 868].) When appellant received assignments of the Galli and Wilson interests the notes were more than a year past due. He knew that his transferrer had once owned the property subject to the mortgages, yet, as he testified, he made no inquiry of the mortgagor respecting any personal assumption of the debt by Mr. Kjellman. If the purchaser of an equity of redemption has assumed payment of the debt or has otherwise made himself personally liable for it, the payment of the debt will extinguish the mortgage, and he cannot take an assignment of it to himself. (27 Cyc. 1331.) Section 1473 of the Civil Code provides that: "Full performance of an obligation, by the party whose duty it is to perform it, or by any other person on his behalf, and with his assent, if accepted by the creditor, extinguishes it."

In the early case of Gordon v. Wansey, 21 Cal. 77, the facts were as follows: Certain negotiable promissory notes were assigned before maturity to one of the makers and by him. after maturity to the plaintiff. It was held that the transaction amounted to payment and that the notes became functus officio and were not revived by the assignment to the plaintiff. In Yule v. Bishop, 133 Cal. 574, [62 Pac. 68, 65 Pac. 1094], the same principle is announced. The full performance of an obligation by anyone for the principal with his assent, if accepted by the creditor, extinguishes the obligation. (See, also, Crystal v. Hutton, 1 Cal. App. 251-256, [81 Pac. 1115]; Bray v. Cohn, 7 Cal. App. 124, [93 Pac. 893].)

The appellant therefore took the note long past due subject to all existing defenses. (Elgin v. Hill, 27 Cal. 373-375; James v. Yaeger, 86 Cal. 184-188, [24 Pac. 1005]; Adams v. Hopkins, 144 Cal. 19-34, [77 Pac. 712].)

No further assignments of error require discussion.
The judgment is affirmed.

Henshaw, J., and Lorigan, J., concurred.

[S. F. No. 7691. In Bank.-February 15, 1917.]

In the Matter of the Estate of IDA MATILDA MANCHESTER, Deceased; HENRY R. WOLTMAN, Proponent and Respondent; WALTER MANCHESTER, Contestant and Appellant.

OLOGRAPHIC WILL-INSUFFICIENT SIGNATURE OF TESTATOR.-A document testamentary in character and wholly in the handwriting of the maker, in which the name of the person making it appears only in the beginning thereof, and by way of recital to designate that person as the maker, and which concludes with the words, "Whereunto I hereby set my hand this," etc., is not "signed," within the meaning of that word as used in section 1277 of the Civil Code, requiring an olographic will to be signed by the hand of the testator.

OF

ID. INTENTION ΤΟ AUTHENTICATE DOCUMENT - - IDENTIFICATION MAKER. The word "signed," as used in that section, means the signature of the testator in his own handwriting written somewhere in or upon the document, with the intention by so writing it to authenticate the document. The name at another place than the end of the document, and not for the purpose of authenticating it and indicating its completion, but merely to identify the person who is making the will, cannot be deemed to be a name "signed" to the document.

ID. INDORSEMENT ON ENVELOPE CONTAINING WILL. The defect in signing is not cured by the words "My Will," indorsed on the envelope in which the document was placed and signed by the maker. ID. STATUTORY MODE OF EXECUTION MUST BE OBSERVED.-The maker's belief that a document is a valid will, properly executed, does not make it so. The power to dispose of one's property by will and the mode by which it may be exercised are matters under legislative control, and the mode prescribed by the statute must be followed, or there is no will.

ID.-PLACE OF SIGNATURE TO WILL-INTENT TO EXECUTE.-Wherever the signature to a will may be placed, the fact that it was intended as an executing signature must satisfactorily appear on the face of the document itself. If it is at the end of the document, universal custom forces the conclusion that it was appended as an execution, if nothing to the contrary appears. If placed elsewhere, it is for the court to say, from an inspection of the whole document, its language as well as its form, and the relative position of its parts, whether or not there is a positive and satisfactory inference from the document itself that the signature was so placed with the intent

CLXXIV Cal.-27

that it should there serve as a token of execution. If such inference thus appears, the execution may be considered as proven by such signature.

APPEAL from an order of the Superior Court of Alameda County admitting a will to probate. William H. Waste, Judge.

The facts are stated in the opinion of the court.

L. P. Forestell, for Appellant.

Wm. A. Powell, Earll H. Webb, and George W. Chamberlain, for Respondent.

SHAW, J.-The court below, upon the petition of Woltman, duly made an order admitting a certain document to probate as the last will of the decedent. From this order Walter Manchester, a brother and heir of the decedent, appeals.

The document referred to was wholly in the handwriting of the decedent. The only objection presented upon this appeal is that it was not signed by the decedent.

The document began as follows:

"January 14th, 1914.

"I, Matilda Manchester, leave and bequeath all my estate & effects, after payment of legal, funeral & certain foreign shipment expenses (as directed) to the following legatees, viz.":

Then followed a statement of devises and bequests to divers persons. It ended as follows:

"Whereunto I hereby set my hand this fourteenth day of January, 1914."

The name of the decedent does not appear in or on the paper anywhere, except in the opening clause as above shown. This document was folded by the decedent and placed in an envelope, which was then sealed and indorsed by the decedent, in her own handwriting, with the words, "My Will, Ida Matilda Manchester." In that condition it was, by her direction, placed in her safe deposit box, where it was found after her death. These are all the facts bearing upon the question of its execution as a will.

"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." (Civ. Code, sec. 1277.)

The will in question fits this description in all respects except the signing thereof. It was not "signed" according to the meaning of that word in ordinary usage. To sign, as applied to a document, is defined as follows: "To affix a signature thereto; to ratify by hand or seal; to subscribe in one's own handwriting." (Webster's Dictionary.) Unquestionably, as used in the above-quoted section, it means the signature of the testator in his own handwriting written somewhere in or upon the document, with the intention by so writing it to authenticate the document. The name written at another place than the end of the document, and not for the purpose of authenticating it and indicating its completion, but merely to identify the person who is making the will, cannot be deemed to be a name "signed" to the document, unless that word is given a meaning entirely different from that which it is generally understood to have. (7 Words & Phrases, p. 6508.) The Civil Code itself provides that words "are construed according to the context and the approved usage of the language." (Civ. Code, sec. 13.) If this be done, a document in which the name of the person making it appears only in the beginning thereof, and by way of recital to designate that person as the maker, in the manner above shown, cannot be said to have been signed by the maker. (Estate of Walker, 110 Cal. 393, [52 Am. St. Rep. 104, 30 L. R. A. 460, 42 Pac. 815].) We have here the additional indication of lack of that completion essential to a will in the closing words, "whereunto I hereby set my hand this," etc. These are apt words to precede a signature in attestation of a will or deed, and they tend to show that the decedent intended to sign immediately below, but failed to carry out that intention.

The defect is not cured by the words "My Will" indorsed on the envelope and signed by the decedent. The manifest purpose of that indorsement was to state that the paper within the sealed envelope was the will of Ida Matilda Manchester. It shows that the decedent believed that the inclosed document was her will, and indicates that she believed that it was lawfully executed and valid. But her belief that it was a valid will, properly executed, does not make it so. The power