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REPORTS
OF
DECISIONS IN PROBATE
BT
JAMES V. COFFEY,
JUDGE OP THE SUPERIOR COURT,
IN AND FOR THE
CITY AND COUNTY OF SAN FRANCISCO, STATE OF
CALIFORNIA.
REPORTED AND ^ANNOTATED BY
PETER Y. ROSS AND JEREMIAH V. COFFEY,
Of the San Francisco Bar.
VOLUME ONE.
SAN FRANCISCO:
BANCROFT-WHITNEY COMPANY,
Law Publishees and Law Booksellers.
1908.
s
c%
Copyriglit, 1908.
BY
JEREMIAH VINCENT COFFEY.
San Francisco:
The Filmes Brothers Electrotype Company,
Typographers and Stereotypers.
PREFACE.
Probate law, under the ancient English practice, was a(i-
ministered in three different tribunals, some matters being
cognizable by the common-law courts, some by the ecclesiasti-
cal courts, and still others by the chancery courts. This obvi-
ously awkward system never obtained in all its fullness in
America, for the ecclesiastical courts did not secure a foot-
hold on our soil. But courts of equity, in the early history
of American jurisprudence, assumed to exercise probate pow-
ers to a very considerable extent, and in many states of the
Union they still appear to retain some vestige of this author-
ity. The general tendency, however, has been to concentrate
all probate powers in a single, common-law tribunal, saving
to equity only a revisory function to grant relief from orders
and decrees in probate in case of fraud, mistake, or other
ground of equitable intervention ; and this system, whereby
one court has exclusive original jurisdiction in all matters
touching the administration of estates of deceased and in-
competent persons, and also the guardianship of minors and
incompetents, now generally prevails in the western com-
monwealths.
The California constitution of 1849 clothed the county
judge in each county with probate powers, and from time to
time thereafter the legislature enacted statutes regulating the
practice in probate. By an amendment to the constitution
in 1862, and an enactment of the legislature the year follow-
ing, a separate probate court was created in San Francisco,
which superseded the jurisdiction of the county judge in pro-
bate proceedings in that city and county. With this single
exception the county judges throughout the state continued
to exercise probate functions until the constitution of 1879
went into operation.
(iii)
778631
iv Preface.
By the constitution of 1879, the probate and county courts
were abolished, and jurisdiction of all probate matters was
vested in the superior courts throughout the state. This con-
stitution went into effect on the first day of January, 1880.
In San Francisco it provided for twelve judges and twelve
departments of the superior court; and the original appor-
tionment of judicial business among these departments
was as follows: To departments one to eight were assigned
ordinary civil causes; to department nine, probate matters;
to department ten, insolvency and special proceedings ; and
to departments eleven ajid twelve, criminal cases. This ap-
portionment has been modified more or less from time to
time; but not so far as to encroach upon department nine as
a probate forum. While a considerable amount of probate
business, especially in recent years, has been assigned to
other departments, practically no business other than pro-
bate has ever been assigned to department nine. Therefore
this department has now for nearly thirty years been dis-
tinctly the probate court in the city and county of San Fran-
cisco.
In the formative period of this department it was argued,
and with no little plausibility, that a judge of the superior
court sitting in probate could wield the powers of a court
of general jurisdiction ; that he could, for example, try dis-
puted titles to property, and administer general equitable
remedies. But it has long since become settled doctrine that
the probate jurisdiction of the superior court is a jurisdic-
tion separate and distinct from its jurisdiction in ordinary
civil actions. Hence, in an action of ejectment by an admin-
istrator, the superior court has no power to set aside the land
in controvers}'- as a probate homestead; this can be done only
by the superior court while sitting as a court of probate. On
the other hand, when acting as a probate court, the superior
court ordinarily cannot determine disputes involving the title
to real estate. True, a superior judge, while sitting in pro-
bate, may properly inquire into the real ownership of prop-
erty under some circumstances, as when it is necessary to
determine whether it shall be inventoried as part of an estate
in process of administration; but the inquiry is not pursued
Preface. - v
for the purpose finally to determine title. And he may ex-
ercise equity powers incidentally necessary to a complete ad-
ministration of the estate, but he does not, when so doing,
exercise the general jurisdiction of a court of chancery.
Hence the superior court, on its probate side, is, in a sense, a
court of limited jurisdiction, somewhat the same as was the
probate court which it has superseded. But of matters prop-
erly cognizable in the probate forum it has exclusive orig-
inal jurisdiction. It shares none of this jurisdiction with any
other tribunal as does the probate court of some states, and
even as formerly did the probate court of California ; but ad-
ministers, in the first instance, all matters touching the ad-
ministration of the estates of deceased persons, and all mat-
ters pertaining to the guardianship of the estates and persons
of minors and incompetents. Moreover, the procedure on the
probate side of the superior court, except so far as expressly
declared otherwise by statute, is essentially the same as that of
the superior court in trying ordinary civil actions; and the
orders and decrees of the superior court, while sitting in pro-
bate, are entitled to the same favorable intendments and pre-
sumptions commonly accorded the orders and decrees of courts
of general jurisdiction. It is therefore apparent that the pro-
bate court in California is not a court of limited jurisdiction,
in the proper sense of that term, notwithstanding it is often so
styled. Neither is it a statutory tribunal. It derives its au-
thority from the constitution. The proceedings in probate,
however, are purely statutory; and the rule of the statutes,
in so far as they furnish any, must be followed before re-
sorting for guidance to the principles of the common law.
After the probate court of San Francisco came into exist-
ence in 1863, as indicated in preceding paragraphs, Hon.
Maurice C. Blake became the first probate judge, acting as
such from January 1, 1864, to December 31, 1867. Hon.
Selden S. Wright succeeded him, holding the office until De-
cember 31, 1871. From January 1, 1872, until December 31,
1879, Hon. Milton II. Myrick presided over the court.
When the superior court was created by the constitution
of 1879, the Hon. John F. Finn was the first judge to pre-
side in department nine, the probate department. This he
vi . Preface.
did from January 1, 1880, to September 1, 1883, when he ex-
changed departments with the Hon. James V. Coffey (then
presiding in department three), and the latter has presided
continuously in department nine to the present time. Judge
Coffey has therefore presided over the probate department
of the superior court in San Francisco for over a quarter of
a century.
Naturally Judge Coffey's decisions have been eagerly
sought by members of the bar, and consequently many of them
have, in one form or another, been published from time to time.
But nothing like a complete publication of his works has been
attempted until now, when his opinions are sufficient in num-
ber to fill not less than five volumes, they will be given to the
world in full.
It has been thought that the practical utility of these re-
ports would be increased by a system of annotation. There-
fore the editor has appended notes, some of them of quite an
extended character, to many of the decisions. It will of
course be understood that Judge Coffey is in no wise responsi-
ble for any statement in these annotations, and that they have
not the authority of judicial pronouncement.
P. V. ROSS.
San Francisco, December, 1908.
TABLE OF CASES.
Page
Armstrong, Estate of 157
Blythe, Estate of 110,115
Chittenden, Estate of 1
Curtis, Estate of 533
Danneker, Guardianship of 4
Doe, Estate of 54
Donahue, Estate of 186
Fay, Estate of 428
Fisher, Estate of 97
Fitzpatrick, Estate of 117
Fleishman, Estate of 18
Gibson, Estate of 9
Green, Estate of 444
Hansen, Guardianship of 182
Hayes, Estate of 551
Held, Estate of 206
Hill, Estate of 380t
Ingram, Estate of 222
Ingram, Matter of 137
Jennings, Estate of 155
Lane, Estate of 88
Love, Estate of 537
Lund, Estate of 152
Lynch, Estate of 140
Maxwell, Estate of 126, 135, 145
McGarrity, Guardianship of 200
McGovern, Estate of 150
McDougal, Estate of 109, 456
McLaughlin, Estate of 80, 257
Murphy, Estate of 12
Murphy, Guardianship of 107
Neustadt, Estate of 95
(vii)
viii Table of Cases.
Page
Partridge, Estate of 208
Pickett, Estate of 93
Eicaud, Estate of 212, 220
Eiddle, Estate of 215
Kothschild, Estate of 167
Scott, Estate of 271, 368
Sealy, Estate of 90
Shillaber, Estate of 101, 120
Skar, Estate of 405
Smith, Estate and Guardianship of o . . . 169
Solomon, Estate of . 85
Tate, Estate of 217
Tiffany, Estate of 478
Traylor, Estate of 164, 252
Treweek, Estate of , 132
Wallace, Estate of 118
Whalen, Estate of 202
White, Estate and Guardianship of 128
Zimmer, Estate and Guardianship of 142
TABLE OF CASES CITED.
Page
Abila V. Burnett, 33 Cal. 659 2
Amber v. Weischaar, 74 111. 110 19
American Bible Co. v. Price, 3 West. Eep. 69 497
American Seaman's Friend Soc. v. Hopper, 33 N. Y. 619 497, 520
Anthony v. Dunlap, 8 Cal. 26 108
Attorney General v. Harley, 5 Russ. 173 254
Bailey v. Bailey, 97 N. Y. 467 67, 70
Ballentine, Estate of, 45 Cal. 696, 699 128, 218, 453, 552
Bank of Ukiah y. Eice, 143 Cal. 270 420, 422
Barf ord. Ex parte, 8 Cox C. C. 405 177
Bates V. Bates, 97 Mass. 395 455
Behrens, Estate of, 130 Cal. 416 429
Billings, Estate of, 64 Cal. 427 429
Black, Estate of, Myr. 24-31 229, 238, 402, 404
Boland, Estate of, 43 Cal. 643 95, 454, 553, 554
Boldry v. Parris, 2 Cush. 433 244
Bond V. Sewell, 3 Burr. 1773 22
Bowman, In re, 69 Cal. 244 453
Broderick v. Broderick, 1 P. Wms. 239, 4 Vin. Abr. 534 21
Brooks V. Duffell, 23 Ga. 441 22
Burmester v. Orth, 5 Redf . 259 186
Burton, Estate of, 63 Cal. 36 552
Busse, Estate of, 35 Cal. 310 453
Carpenter, Estate of, 94 Cal. 407 326
Case V. Dennison, 9 R. I. 88 535
Casey, Ex parte, 71 Cal. 269 537
Chapsky v. Wood, 26 Kan. 651 174
Children's Aid Soc. v. Loveridge, 70 N. Y. 387 237, 404
Clapp V. Fullerton, 34 N. Y. 190 228, 334, 366
Clark V. Ellis, 9 Or. 147 366
Clark V. Ward, 1 Bro. P. C. 137 21
Clif t V. Moses, 116 N. Y. 157 424
Cohn, Estate of, 55 Cal. 193 134
Coit V. Patchen, 77 N. Y. 537 366
Cole V. Superior Court, 63 Cal. 86 154
Cole, Will of, 49 Wis. 181 283, 327, 334
Collier v. Munn, 41 N. Y. 143 548
(ix)
Table of Cases Cited.
Page
Colman's Case, 3 Curt. 118 . . : 21
Comstock V. Hadylone etc. Soc, 8 Conn. 254 235
Cotter, Estate of, 54 Cal. 217 93, 94
Cozine v. Horn, 1 Bradf . 143 186
Crittenden, Estate of, Myr. 51 402
Crooke v. County of Kings, 97 N. Y. 427 67, 69
Cunliffe v. Branchker, L. E. 3 Ch. D. 399 66
Curry v. Powers, 70 N. Y. 217 535
Daniel v. Daniel, 39 Pa. 191 366
Daniel v. Smith, 64 Cal. 346 535, 536
Dary v. Smith, 3 Salk. 395 19
Davis, Estate of, 65 Cal. 309 16
Davis, Estate of, 69 Cal. 458 552
Davis, In re, 69 Cal. 460 453
Dean v. Negley, 41 Pa. 314, 316 507, 519
Dean v. Superior Court, 63 Cal. 473 137, 262
Delaney, Estate of, 37 Cal. 176 451
Dew V. Clark, 3 Add. 79 361
Disbrow 's Estate, 58 Mich. 96 238
Dixon, Estate of, 143 Cal. 511 423
Dodge V. Pond, 23 N. Y. 69 412, 415, 419
Dole V. Lincoln, 31 Me. 428 535
Downing v. Marshall, 23 N. Y. 377 67, 68, 70
Dunphy, Estate of, 147 Cal. 95 74
Eastman, Estate of, 60 Cal. 310 10
Edelen v. Hardy, 7 Har. & J. 61 24
Edelston v. Spake, Holt. 222, Mod. ^59, Comb. 156 21
Ellis' Case, 2 Curt. 395 21
Fair, Estate of, 132 Cal. 546 408
Fealey v. Eealey, 104 Cal. 360 554
Fiero v. Fiero, 5 Thomp. & C. 151 535
Foster v. Mott, 3 Bradf. 409 186
Fuentes v. Gaines, 25 La. Ann. 85 432
Gardiner v. Gardiner, 34 N. Y. 155 238
Garraud, Estate of, 36 Cal. 278 116
Garvey v. McCue, 3 Eedf. 315 117
Gasq, Estate of, 42 Cal. 288 116
Gass V. Gass, 3 Humph. 278 22
Gay V. Gillilan, 92 Mo. 250 508
Gold 's Case, 1 Kirby (Conn.), 100 212
Gooch V. Gooch, 33 Me. 535 256
Graham v. Graham, 10 Ired. 219 23
Greenwood v. Cline, 7 Or. 28 353
Table of Cases Cited. xi
Page
Gregg V. Bostwick, 33 Gal. 221 451
Gurnee v. Malonej, 38 Cal. 87 2,116, 154
Hamor v. Moore, 8 Ohio St. 242 535
Hardwick, Estate of, 59 Cal. 292 552
Hatch V. Atkinson, 56 Me. 327 535
Heffner v. Heffner, 48 La. Ann. 1088 430,431
Higgins V. Higgins, 46 Cal. 265 454
Hill V. Barge, 12 Ala. 695 20
Hinckley, Estate of, 58 Cal. 516 83
Hogan V. Grosvenor, 10 Met. 56 19
Holley V. Chamberlain, 1 Eedf . 333 186
Hollis, Ex parte, 59 Cal. 406 537
Hoppe V. Hoppe, 104 Cal. 94 554
Home V. Home, 9 Ind. 99 366
Horsf ord 's Case, L. R. 3 Prob. 211 22
Hudson, Estate of, 63 Cal. 454 .' 137, 262
Hutchinson v. McNally, 85 Cal. 619 553
Jackson v. Phillips, 14 Allen, 539 11
Janes v. Throckmorton, 57 Cal. 368 418
Jones V. Tuck, 3 Jones, 202 23
Julke V. Adam, 1 Redf. 456 403
Keyes v. Cyrus, 100 Cal. 325 553
Killick's Case, 3 Sw. & Tr. 578 22
King V. King, 13 R. I. 510 424
Kinne v. Kinne, 9 Conn. 104 367
Lacoste, Estate of, Myr. 68 134
Lahiff 's Estate, In re, 86 Cal. 151 553
Lakemeyer, Estate of, 135 Cal. 28 429
Lamb v. Girtman, 26 Ga. 629 20, 23
Lambert's Lessee v. Paine, 3 Cranch, 131 422
Le Breton v. Cook, 107 Cal. 416 422
Lee V. Lee, 4 McCord (S. C), 183 283,367
Lef evre v. Lef evrc, 59 N. Y. 434 11
Linden, Guardianship of, Myr. 221 186
Lord, Estate of, 2 West Coast Rep. 131 128, 219
Lord V. Lord, 65 Cal. 84 128, 219
Machell v. Temple, 2 Show. 288 21
Macready v. Wilcox, 33 Conn. 321 186
Maloney v. Hefner (Cal.), 15 Pac. 763 450, 451
Martin, Estate of, 58 Cal. 530 429
Mawson v. Mawson, 50 Cal. 539 128, 218, 554, 555
Maxwell, Estate of, 1 Coffey's Prob. 132 218
xii Table of Cases Cited.
Page
Maynard v. Vinton, 59 Mich. 139 238
McCauley, Estate of, 50 Cal. 546 128, 218
McCrea v. Haraszthy, 51 Cal. 149 82
McDowles, Matter of, 8 Johns. 328 178
McElf resh v. Guard, 32 Ind. 412 20
McGrath v. Keynolds, 116 Mass. 566 535
McKinnie v. Shaffer, 74 Cal. 614 554
Metealf v. Framingham Parish, 128 Mass. 370 146
Meyer v. Kinzer, 12 Cal. 252 198
Miller, In re, 4 Eedf. 304 99
Miner, Estate of, 46 Cal. 564, 572 2,104,125
Missionary Soc. v. Chapman, 128 Mass. 265 11
Moore, Estate of, 57 Cal. 443 128, 454, 553, 554
Moore, Estate of, 96 Cal. 522 553
Morgan. Estate of, 53 Cal. 243 94
New York Institution etc. v. How, 10 N. Y. 88 11
Neil V. Neil, 1 Leigh, 6 23
Noah, Estate of, 73 Cal. 583 516
Nock V. Nock, 10 Gratt. 106 20
Norton v. Bazett, (Dea & S.) 5 Am. Law Keg. 52 21
O'Neil V. Murray, 4 Eedf. 318 403
Onions v. Tyrer, 1 P. Wms. 343 21
Orndorff v. Hummer, 12 B. Mon. 619 23
Page, Estate of, 57 Cal. 241 2, 154
Payne v. Treadwell, 16 Cal. 243 198
Peck V. Carey, 27 N. Y. 9 403
Pforr, Estate of, 144 Cal. 121 412, 415
Phelan v. Smith, 100 Cal. 170 552, 553
Pool V. Gott, 14 Monthly Law Eep. (4 N. S.) 269 175, 181
Power V. Cassidy, 79 N. Y. 610 11, 414, 424, 426
Prevost V. Gratz, 6 Wheat. 481 163
Pritchett, Estate of, 51 Cal. 568 141
Pryer v. Clapp, 1 Dem. (N. Y.) 390 263
Eand, Estate of, 61 Cal. 468 429
Eedfield, Estate of, 116 Cal. 637 298, 326
Eeed v. Eoberts, 26 Ga. 294 22
Eex V. Smith, 2 Strange, 982 178
Eeynolds v. Eeynolds, 1 Spear, 253 23
Keynolds v. Root, 62 Barb. 250 238,501
Eicaud, Estate of, Myr. 158 198
Eobertson, Succession of, 49 La. Ann. 868 430
Eobinson v. King, 6 Ga. 539 22
Eough V. Simmons, 65 Cal. 227 198
Eussell V. Falls, 3 Har. & McH. 457 24
Table of Cases Cited. xiii
Page
Saunder 's Appeal, 54 Conn. 108 238
Scarrit, In re, 76 Mo. 593 179
Schadt V. Heppe, 45 Cal. 433 552
Schmidt, Estate of, 94 Cal. 334 , 554
Sheehy v. Miles, 93 Cal. 288 554
Shires v. Glasscock, 2 Salk. 688 19
Simons, Estate of, 43 Cal. 548 2, 99, 116
Smith, Estate of, 53 Cal. 208 134
Smith V. Smith, 12 Cal. 224 198
St. Luke's Home v. Association etc., 52 N. Y. 191 11
State V. Libbey, 44 N. H. 321 178
Stevens v. Vancleava, 4 Wash. C. C. 262 367
Stuart V. Allen, 16 Cal. 504 116
Sulzberger v. Sulzberger, 50 Cal. 385 453,554
Taylor, Estate of, Myr. 160 134
Taylor v. Henry, 48 Md. 550 535
Thorndike v. Eice (Mass.), 14 Law. Eep., N. S., 19 177
Tittel, Estate of, Myr. 12, 16 229, 238, 402
Todd V, Winchelsea, 2 Car. & P.— 19
Tribe v. Tribe, 13 Jur. 793, 1 Rob. 775 21
Trumbull v. Gibbons, 22 N. J. L. 117 364
Twine's Case, 3 Coke Rep. 82 353
Vernon v. Vernon, 53 N. Y. 361 146
Violette v. Therrian, 1 Pug. & Bus. (N. B.) 389 22
Walkerly, Estate of, 108 Cal. 627 420, 421
Wallace v. Harris, 32 Mich. 393 507
Waterman v. Whitney, 11 N. Y, 165 238
Watson V. Pipes, 32 Miss. 468 20
White, Will of, 121 N. Y. 412 290
Wilson, In re, 117 Cal. 269 431
Wittfield V. Forster, 124 Cal. 418 72
Wright V. Lewis, 5 Rich. 212 20
Wright V. Monifold, 1 M. & S. 294 21
Wurts V. Page, 19 K J. Eq. 375 413, 416
CITATIONS.
CALIFORNIA.
Constitution. — Art. VI, sec. 5
137
CODE OF CI^rCL PROCEDUEE.
SECTION PAGE
338 137
453 261
473 127
1209 134
1303 82
1307 281
1327 262
1328 262
1365 88, 89, 109, 110, 169
1369
1371
1374
1377
1379
1383
1386
1389
1411
1413
1415
207
216
216
168
169
168
168
.216
92
207
104
1426 109, 110
1443 211
1464 460
1465 128, 219, 452, 454,
551, 552, 554, 555
1468 128, 553
SECTION PAGE
1474 552
1490 196
1491 196
1581 98
1616 16, 98, 99
1618 16, 106
1632 549
1658 195, 197
1659 197
1660 197
1661 197
1662 195, 198
1664 195
1666 134
1704 81
1705 82
1718 100, 116
1721 134
1748 143, 177
1749 143
1751 175, 185
1763 387
1764 387
1766 387
1962 134
CIVIL CODE.
SECTION
40 ..
138 ..
197 ..
246 ..,
253 . .
PAGE
386
107
175
,143, 144, 174, 177, 185
144
SECTION
258 . .
689 . . .
690 . . ,
693 . . ,
694 . .
PAGE
. 138
. 78
. 78
. 78
. 78
(XV)
XVI
Citations.
CIVIL CODE— Continued.
SECTION PAGE
695 "7, 78
741 77
742 77
767 76
857 66, 70, 73, 74, 409, 410
864 411
871 72
1147 534
1149 534, 535
1262 452
1270 84, 228, 388
1272 403
1276 18, 24, 401
1277 429, 432
SECTION PAGE
1278 401
1318 , 253
1321 147, 375
1323 147
1324 147, 253
1325 147, 149
1338 412
1384 554, 555
1402 554, 555
1468 554, 555
1575 233, 403, 404
2221 73
2224 137
SECTION
1030 . . .
2210 ...
POLITICAL CODE.
SECTION
2222 ...
PAGE
. 152
. 139
PAGE
. 139
COFFEY'S
PROBATE DECISIONS.
Estate of N. W. CHITTENDEN, Deceased.
[No. 4,783; decided February 24, 1887.]
Executors — Right to Counsel Fees. — The trust imposed upon an ex-
ecutor makes the probate of the will a part of his duty, for which he
may employ attorneys and charge their fees against the estate.
Executors. — The Fees of Attorneys Employed by an Executor in
probating the will, being a charge against the testator's estate, can be
fixed only by the probate court.
Executors — Right to Counsel Fees In Procuring Letters. — Counsel
fees incurred by an executor in applying for letters are a proper
charge against the estate, notwithstanding he renounces his trust be-
fore letters are issued.
Executors. — There is a Distinction Between Executors and Admin-
istrators. An executor is appointed by the will to carry out its pro-
visions and the wishes of the testator, who burdens the executor with
the trusts created by the will and charges his estate with the ex-
penses necessary to carry out his views as expressed in his will; but
an administrator has no trust imposed upon him by the decedent, and
he looks solely to the statute for his duties, authority, and compensa-
tion.
Application for an allowance to petitioners for services
performed as attorneys for an executor, in filing a petition
for the probate of the will, and proceedings in connection
therewith and with the probate of the instrument. The ex-
ecutor did not qualify for his trust, but renounced his right
to letters upon or before the hearing of the petition ; and this
was a direct application to the court by the attorne.ys so em-
ployed by him. The administrator with the will annexed de-
Prob. Dec, Vol. I — 1
2 Coffey's Probate Decisions, Vol. 1.
murred to the application, and the following decision was
given on the demurrer.
M. S. Eisner, for the demurrer.
John M. Burnett, for the application.
COFFEY, J. This is an application on behalf of William
and George Leviston for counsel fees for services rendered
in probating the will of the testator.
The demurrer should be overruled. This case is to be
distinguished from the Estate of Simmons (43 Cal. 548),
decided in April, 1872, Avhich applies only to an application
for letters of administration, and refers to a class of cases
where one is seeking for his own gain to exercise a privilege.
There is a distinction between executors and administra-
tors. The executor is appointed by the will to carry out its
provisions, under the supervision of the court, and the trust
is conferred on him by that instrument. It is the duty of
an executor to protect the beneficiaries named in the will,
and this he can do in no other way than by offering it for
probate. If he do not renounce the trust he is bound to prove
the will, and is not called upon to do it at his own expense.
To do so properly he is necessarily obliged to employ coun-
sel, and a counsel fee in that behalf is a proper charge against
the estate.
The probate of the will by the executor is the performance
of a duty and the fulfillment of a trust, and the payment of
attorney's fees just as necessary as that of clerk's fees.
This being a charge against the estate, the judge sitting in
this department alone has power to fix the fees: Gurnee v.
Maloney, 38 Cal. 87, 99 Am. Dec. 352; Estate of Page, 57
Cal. 241.
The executor is entitled to attorney's fees on probate of
will or on contest of same: Abila v. Burnett, 33 Cal. 659;
Estate of IVliner, 46 Cal. 564.
The executor only carries out the wish and will of the
testator, who has the absolute power to make a will and to
dispose of his property as he may choose. The testator, by
Estate op Chittenden. 3
the exercise of that power, burdens the executor with the
trusts created, and impliedly charges his own estate with
all the costs and expenses necessary to carry out his views as
exposed in his last will and testament. To hold otherwise
would practically nullify the statute of wills, and prevent
the testator from disposing of his property as he may elect,
or from appointing a disinterested trustee to carry out his
views.
Certain legatees and devisees might wish the will enforced,
but conflicting interests and contentions might render the
assumption of. the trust too burdensome.
No one will ever assume the arduous labors and responsibili-
ties of the office of executor, when he himself must pay from
his own means for having his muniment of title assured, when
nothing of benefit can accrue to him, even in case of success.
The privilege of administration is different; there the in-
testate creates no trust to be enforced, and burdens his es-
tate with no conditions; he expresses no wish in favor of
particular objects, but the party who assumes the privilege
is any one of a large number, and is directly interested, out-
side of his commissions, in taking charge of the estate; the
estate is to be divided, and he is a party receiving a share.
Further, his duties are not as onerous; he has no document
limiting his powers and authority; he has no trust imposed
upon him by the will of the intestate; he looks solely to the
statute. The duties of an executor are regulated not only
by the law but by the will also ; he, as executor, has no in-
terest, beyond his commissions, to stimulate his exertions; as
executor, he can claim none of the estate, it belongs to others.
The compensation of an executor is the same as that of an
administrator, l)ut the expenses of the former are necessarily
more, and his labors may be harder. He cannot probate
the will himself, he nuist employ counsel. No such charge
is imposed upon the administrator. There seems, therefore,
to be a clear distinction between the two cases.
Demurrer overruled; ten days to answer.
4 Coffey's Probate Decisions, Vol. 1.
The Rule that an Estate cannot be charged with the fees of an
attorney for procuring letters of administration, which is announced
in Estate of Simmons, 43 Cal. 543, has been followed in Bowman v.
Bowman, 27 Npv. 413, 76 Pac. 634; Wilbur v. Wilbur, 17 Wash. 683,
50 Pac. 589. One appointed as administrator, and successfully con-
testing an appeal from the order appointing him, was denied an al-
lowance for attorney fees and costs in Estate of Barton, 55 Cal. 87.
Guardianship of LAURA DANNEKER, a Minor.
[No. 4,344; decided March 29, 1887.]
Guardianship — Custody and Welfare of Child. — In appointing a
guardian and awarding the custody of a child, the court is bound to
do what in its judgment appears to be for the best interest of the
child in respect to its temporal, its mental and moral welfare.
Guardianship. — The Affection of a Child for the Person seeking its
custody as guardian is always given consideration by the court.
Guardianship — Social and Private Life of Guardian. — It is the duty
of the court to inquire into the social relations and private life of a
person seeking to be appointed guardian of a child, so far as they may
affect the child's welfare.
Evidence — Inference from Failure to Produce. — The failure of a
party to produce evidence within his power to produce is a circum-
stance to be taken against him.
Record. — Matters Prejudicial to the Character of any person will
be excluded from the record when not essential to a proper decision.
Henry Vrooman and W. H. Jordan, for the motion.
A. H. Loughborough, contra.
COFFEY, J. This is a motion for a new trial in the mat-
ter of Laura Danneker, a minor, wherein, upon the petition
of one Teresa Magee, letters were granted to her as guardian
of the person of the said minor. Upon the hearing of that
petition Jacob Michaelson appeared and opposed the issue
of such letters, but the court, upon the conclusion of the
testimony, granted the prayer of the petitioner, Teresa Ma-
gee. The court is now asked to grant the motion of the
respondent to set aside the decision, the findings and the
judgment therein, and for a new trial. This motion has
Guardianship op Danneker. 5
been prosecuted with great earnestness and evident convic-
tion on the part of counsel that the court erred in its or-
iginal conclusion, and counsel, Mr. Jordan, in presenting
his argument, said that such was the gravity of the case to
the respondent and to the ward, and so deep the interest felt
in its final determination, that he invoked the exercise of
some patience on the part of the court in reviewing the evi-
dence in extenso produced at the trial, and in presenting
fairly and logically the reasons which, in his judgment, actu-
ated the respondent in making the motion. The counsel argu-
ing the motion for new trial were not the counsel engaged
at the time of the hearing of the application, and on that ac-
count, as well as out of consideration for their request, I
gave them more than the usual time to prepare their state-
ment on motion for new trial and argument; and, notwith-
standing the pressure of other matters before the court, have
bestowed great care upon the re-examination of the evidence
and the written argument of the counsel. In this connection,
I may say that this is the uniform habit of this court in all
cases of this class. The court endeavors to try these cases
with strict reference to the interest of the child. In award-
ing the custody of a minor, or in appointing a guardian, the
court is bound to do what, in its judgment, appears to be
for the best interest of the child in respect to its temporal,
its mental and moral welfare.
The counsel, at the argument, dwelt with great emphasis
upon expressions found in the oral opinion of the court, which
he construed favorably to the respondent, and which he says
may be presumed to reflect the impressions made upon the
mind of the court by the evidence touching the character
and fitness of the respondent. Such remarks were insi^ired
by the reluctance of the court to fasten upon the record mat-
ter prejudicial to the character of any person, when such
matter seems to be not essential to the conclusion. The
court does not wish, unnecessarily, to affix a stigma to the
character of any person, and would rather suffer injustice
itself than perpetrate it, and it was with this view that the
court, at the original hearing (when the counsel now appear-
ing for respondent was not present, and had not the op-
6 Coffey's Probate Decisions, Vol. 1.
portunity of observing all that occurred in court), made a
statement which it will now repeat, which statement was pred-
icated upon some injurious publications with regard to the
case Avhich were in their nature sensational and outside of
the record, and calculated to obstruct the current of justice.
The court then said in a kindly manner, as it supposed, that
with reference to the respondent the court was not willing
that he should be prejudiced by any statement not in the rec-
ord.
Some statements obtained admission to the newspapers
pending the trial of the case, which the court regretted to
see, and remarked: "I have no control over newspapers in
any way, and, consequently, I cannot control their publica-
tions. I do not wish anybody that comes into this court-
room to be prejudiced by circumstances or testimony of any
kind that is not relevant to the issue. One of the statements
that appeared in one of the papers was that Mr. Michaelson
is a gambler. There is not any evidence to support that.
It was the statement that was alleged to have been made
by the son of the lady who kept the school in Oakland, which
was denied by her." The same care which the court ex-
ercised in purifying the record from any unnecessary reflec-
tion upon the character of the respondent, it tried to main-
tain in other respects in commenting upon the evidence that
was before the court; and, believing it had sufficient ground
upon which to found its judgment without reflecting upon
the personal character of the respondent, it excluded from
view, as far as possible, allusion to anything that may have
been testified to or suggested by the evidence derogatory to
his reputation with respect to his relations to the opposite
sex, or as to the character of some of that sex Avith whom this
child may have been, or was liable to be, brought into contact.
As the result of my re-examination of the evidence and
consideration of the argument of the counsel, and of the
imputed errors of the court committed during the trial and
in the decision, I am constrained to say that I discover no
reason why I should change my original conclusion. I may
repeat, that, while I have had a great deal of sympathy for
the respondent in this case on account of the affection which
Guardianship of Danneker. 7
the child has shown for him, and the emotion exhibited by
the respondent, which state of the mind of the child is al-
ways considered by the court in deciding these cases, I can-
not see wherein he has established any right to the legal cus-
tody of the minor, and that I think that that custody should
be in the hands of those from whom it was taken at the
time ]\Irs. Trendal received it. In my opinion, the evidence
shows that the minor, Laura Danneker, was at the time of
the application a resident of the city and county of San
Francisco ; that it was and is expedient, and was and is for
the interest of the said minor, that a guardian of her per-
son be appointed; that the petitioner, Teresa Magee, was
and is a suitable and competent person to be appointed such
guardian. The residence of the child was the residence it
had at the time it was given to the Sisters, and at the time
it was placed in charge of Mrs. Trendal. The obligation
which Mrs. Trendal contracted when she received the child
from the Sisters was violated when she gave that child to the
respondent. Of that fact I can have no doubt. In order to
understand this case fully, the whole of the evidence must be
considered, and I am of opinion that, taken altogether, the
evidence justifies the conclusion of the court.
One point I desire to allude to as considerately as pos-
sible, and that is the social relations of respondent during the
time that the child was in his custody. The child was re-
ceived by him without the knowledge, consent or connivance
of the Sisters, and in violation of the agreement between them
and Mrs. Trendal. At the time the respondent received the
child he was not a married man, and his social relations, as
the evidence discloses, were not such as are ordained by the
sanction of the law. Pending the trial, however, he became
a married man. To repeat the language of my former opin-
ion : "Have the changed relations of the respondent altered
the law or the duty of the court?" It is no business of the
court, so far as he is personally concerned, to deal with his
relations to society prior to that time; but it is part of the
duty of the court to consider his social relations as they may
have aifected the child's welfare, and while upon him, as he
stands isolated from liis child, the court is not called upon
8 Coffey's Probate Decisions, Vol. 1.
to pronounce judgment, it has a right, in awarding the cus-
tody of a child, to inquire into his private life. The child
was at the time of the application nine years of age. She
was brought into contact, into association, with persons whose
habits of life, as developed by the evidence, were such as if
not to contaminate her mind or morals, at least to not ele-
vate them, and she certainly should not have been brought
into such company. There was another circumstance here,
one which necessarily impressed the court very strongly.
That is the fact that Mrs. Wasserman, after process was
served upon her, and after the testimony had shown that
she had sustained some friendly relations with respondent,
had absconded. She was a witness for the applicant, Teresa
Magee, and summoned here in her behalf. So far as the
court could see she left here after she was served with sub-
poena, and after she had some consultation with respondent.
He saw her. It did not transpire what conversation he had
with her, but he did see her. The law says that whenever
it is in the power of a party to produce evidence, that is a
circumstance which shall be taken against him whose fault
it is that the evidence is not forthcoming. I could not ig-
nore this fact, since the evidence which she might have given
M^as of importance in this case. It was argued earnestly,
and impressed me strongly at the time, that the fact that
for so long a period the child was allowed to remain in the
custody of the respondent, should be taken against the ap-
plicant, Teresa Magee. It was claimed that the Sisters lacked
diligence in reclaiming the child. This was explained by
the testimony on behalf of the applicant, that the Sisters
did not discover where the child was, and that when they
did make the discovery they took these proceedings and in
good faith prosecuted them to a conclusion.
I have no time to analyze all the evidence, but I am satis-
fied that from the whole record the conclusion of the court
in granting the application of Teresa Magee was correct,
and that the motion for a new trial should be denied. If I
have erred in this conclusion, as is argued by the counsel
for the respondent, I trust he will have ample opportunity
of making that error manifest in the appellate tribunal.
Estate op Gibson. 9
In Appointing a Guardian, the court is guided primarily by what
appears to be for the best interests of the child, and may award its
custody to a person other than the parent if its well-being demands
such a course. The wishes of the child, when of sufficient age to
form an intelligent preference, although not conclusive on the court,
will always be given due consideration; and it is not necessary, in
order for the child to enjoy this privilege, that it should have reached
the age of fourteen: 2 Eoss on Probate Law and Practice, 950-952,
citing In re Lundberg, 143 Cal. 402, 77 Pac. 156; Estate of Dellow, 1
Cal. App. 529, 82 Pac. 558; Andrino v. Yates, 12 Idaho, 618, 87 Pac.
787; Eussner v. McMillan, 37 Wash. 416, 79 Pac. 988; Willet v.
Warren, 34 Wash. 647, 76 Pac. 273; Stapleton v. Poynter, 111 Ky.
264, 98 Am. St. Eep. 411, 62 S. W. 730, 53 L. E. A. 784.
Estate of ALMIRA GIBSON, Deceased.
[No. 3,211; decided November 2, 1885.]
Charitable Bequest — Necessity of Naming Corporation. — A char-
itable institution which is made a residuary legatee need not be
designated in the will by its corporate name.
Charitable Bequest — Evidence to Identify Beneficiary. — If either
from the will itself or from extrinsic evidence the object of a char-
itable bequest can be ascertained, the court will not invalidate the
gift or defeat the donor's intention.
Charitable Bequest — Ascertainment of Beneficiary. — A residuary be-
quest to "The Old Ladies' Home, at present near Eincon Hill, at St.
Mary's Hospital," is held to have been intended for the "Sisters of
Mercy," a corporation embracing, as part of its charitable design, the
"Old Ladies' Home."
Executor — Compensation Fixed by Will. — When an estate is solvent,,
the compensation of the executor, fixed by the will in lieu of stat-
utory commissions, should be paid as "expenses of administration."
Charitable Bequests, so Far as They Exceed One-third the dis--
tributable estate, are void.
John M. Burnett, for the applicant.
W. S. Goodfellow, for the opposing heirs.
Selden S. Wright, for absent heirs.
COFFEY, J. The provision of the will under discussion
here is in these terms :
10 Coffey's Probate Decisions, Vol. 1.
"Twelfth. — I give and devise the remainder of all my es-
tate, after the above legacies have been paid, to the Old
Ladies' Home, at present near Rincon Hill, at St. Mary's
Hospital. ' '
The "Sisters of Mercy" claims this bequest, alleging that
it is an incorporation incorporated March 7, 1868, under
the laws of California, and that it has since continued to
exist under the laws then in force, having its principal place
of business in San Francisco; that among its objects is the
care of sick, unprotected and needy persons, and that to
carry out said object the corporation, prior to January 1,
1878, organized and instituted the Old Ladies' Home, men-
tioned and described in the provision herein quoted from
the will of Almira Gibson; that the said Old Ladies' Home
is and has been conducted by the Sisters of Mercy, corpora-
tion, as part of its work, and as one of the means to carry out
its object, and that it is carried on and conducted in the
building belonging to said corporation; and that the bequest
in said will to the "Old Ladies' Home" was intended to go
to the corporation for the benefit of said part of its work,
namely, the Old Ladies' Home. To this claim the heirs at
law respond that the legatee has no legal capacity to take,
and that they are entitled to the residue of the estate. The
heirs contend that the bequest is direct, not in trust nor
for the use of anybody, but it is a direct bequest to an institu-
tion, the "Old Ladies' Home," having no capacity to take,
nor being a corporation or society, but simply an institution
under the charge of the Sisters of Mercy, the petitioners,
who are not named in the will.
The will is olographic, and is a careful composition, leav-
ing little or no need of interpretation or construction apart
from the provision under review. It remains to be seen
whether that provision inadequately describes the object of
testator's bounty, or is so expressed as to bar the petitioner
corporation from claiming it as the proper channel of be-
stowing the benefaction on "The Old Ladies' Home." The
bequest is in accord with and to carry out the objects of
the corporation petitioning here, which had the capacity to
take under the law: Estate of Eastman, 60 Cal. 310. So long
Estate of Gibson. 11
as the testator sufficiently indicates the institution or in-
dividual intended, that intention should be executed : Jack-
son V. Phillips, 14 Allen, 539. A charitable institution need
not be named by its corporate name : Power v. Cassidy, 79 N.
Y. 610, 35 Am. Rep. 550; St. Luke's Home v. Association
etc., 52 N. Y. 191, 11 Am. Rep. 897; 2 Redfield on Wills
*515, *516.
The intent and purpose of the donor should be accom-
plished. Of the intention of the testator to make the claim-
ant the object of her bounty, and to contribute of her sub-
stance to the charity administered by said "Sisters of Mercy"
corporation, there can be no doubt upon the evidence. If
either from the will itself or from extrinsic evidence the
object of her bounty can be ascertained, the court will not
invalidate the provision or defeat the intention of the tes-
tatrix. The institution here was described Avith entire ac-
curacy, and the evidence is conclusive that the testatrix knew
that the only conduit of her charity was the corporation
claimant. In the N. Y. Inst, for the Blind v. How's Exrs.,
Denio, J., expressed himself substantially to this effect, re-
marking also that he did not think it necessary to go over
the cases to show how considerable an error might be over-
looked or reconciled: "There is much solemn triflino; in the
old books upon this question": 10 N. Y. 88. I think the case
of Lefevre v. Lefevre, 59 N. Y. 434, sustains this view, and
I do not consider the Missionary Soc. v. Chapman, 128 Mass.
265, as authority against the petitioner, since it is shown
here that the "Old Ladies' Home" is an existing institution
forming part of the work of the "Sisters of Mercy" corpora-
tion, and one of the means of carrying out its charitable de-
signs, conducted in the building designated in the will, which
is part of the premises belonging to petitioner, and that the
testatrix intended her bequest to go to said corporation for
the benefit of said part of its work, namely, the "Old Ladies'
Home."
The conclusion reached as to this point is that the petition
of the "Sisters of ]\Iercy" corporation be granted.
2. As to executors' compensation. When the estate is
solvent, as in this (ase, the compensation fixed by the will,
12 Coffey's Probate Decisions, Vol. 1.
in lieu of statutory commissions, should be paid as ' ' expenses
of administration."
3. So far as the charitable bequests exceed one-third of
the distributable estate, they must be adjudged void ; the be-
quests in items "Fourth" and ''Twelfth" are in favor of
charitable institutions.
Subject to the views hereinabove expressed the petition for
distribution is granted.
The Principal Case was Affirmed by the supreme court of California
in 75 Cal. 329, 17 Pac. 438. For a discussion of the certainty and
unity required in the creation of charitable trusts, see the note in
64 Am. St. Eep. 756-772. It is well-understood that a degree of vague-
ness is allowable in charitable bequests: Snider v. Snider, 70 S. C.
555, 106 Am. St. Eep. 754, 50 S. E. 504; Kemmerer v. Kemmerer, 233
111. 627, 121 Am. St. Rep. 600, 84 N. E. 256. A consideration of what
are charitable uses or trusts will be found in the note in 63 Am. St.
Eep. 248.
Estate of DANIEL T. MURPHY, Deceased.
[No. 4,313; decided October 23, 1886.]
Account of Executor — Objections to Expense of Lease. — Upon the
settlement of the account of an executor containing items of ex-
penditures in executing a lease under authority of the will, which
items the heirs contest on the ground of the invalidity of the leased
the court will not consider the lease invalid.
Executor — Renunciation of Compensation. — The fact that an ex-
ecutor at one time entertained and expressed an intention to renounce
his commissions does not bar his right to claim them if he has made
no renunciation in writing nor made any agreement prior to ap-
pointment to waive compensation.
Executor — Liability for Interest on Funds. — An executor who with-
draws funds from the capital account of a firm of which the testator
was a member, and permits them to lie idle in a bank, is chargeable
with interest thereon.
Account of Executor — Expense of Repairs. — Where an executor, as
an inducement to the heirs to join with him in the execution of a
lease, represents to them that the expense of alterations and fitting up
for the tenant will not exceed a certain sum, he cannot be allowed
for expenditures beyond that sum.
Estate of Murphy. 13
Account of Executor. — Expenditures that do not Add to the Rental
Value of ijremises to be leased, and injudiciously made, should be
disallowed.
Fixtures. — The Question as to What are or are not "Fixtures" de-
pends for its determination upon the circumstances of the construction
and intended use of the articles.
Daniel T. Murphy died on June 3, 1885, in the city of New
York, of which place he was a resident at the time of his
death, leaving an estate in San Francisco, California. He
left a will, bearing date May 15, 1883, and two codicils, dated
respectively May 18, 1885, and May 23, 1885.
On the eighth day of June, 1885, the will and codicils were
filed, together with a petition for their probate, and for the
appointment of John T. Doyle and Adam Grant, two of the
nominees of the testator, as executors. The applications were
granted on June 19, 1885, and the executors named duly
qualified.
On November 6, 1885, John T. Doyle tendered his res-
ignation as one of the executors, and, after the settlement of
his account, he was discharged; Adam Grant continuing as
sole executor.
During his lifetime Mr. IMurphy began the erection of a
building of great value on the corner of McAllister, Jones
and Market streets in San Francisco, the lower floors of
which it w^s intended should be occupied by the firm of
Murphy, Grant & Co., a wholesale house of which he was a
member, as a retail store. Shortly before Mr. Murphy's
death, however, one of the members of the firm mentioned
died, and Mr. IMurphy being seriously ill in May, 1885, and
this building being then still unfinished, and the purpose of
the firm to occupy it having been abandoned, the decedent ex-
ecuted the codicil of May 18, 1885, in which he gave his ex-
ecutors the power to complete the building, and to modify the
original plans, if necessary, and also to lease it for the term
of five years.
Mr. Grant, as sole remaining executor, leased the lower
portion of the building, first the western, and then also the
eastern part, to the firm of J. J. O'Brien & Co., for five
years, and covenanted for the fitting up of the premises to
14 Coffey's Probate Decisions, Vol. 1.
suit the purposes of the business of the tenants. Upon the
representations of the executors as to the advantages to be
derived from the lease, the devisees of the property joined
in it for a further period of five years. The executor also
represented to the heirs that the expense of altering the
premises for the use of J. J. O'Brien & Co. would not ex-
ceed $12,000 (instead of that it amounted to over $20,000)
and that the expense of fitting up a "parlor" would not ex-
ceed more than $4,000.
Previous to the execution of this lease negotiations were
pending with other persons for the leasing of the premises
upon terms which some of the heirs thought more advan-
tageous, but acting upon the representations, among others,
of the executor (who was a member of decedent's firm, which
firm was in the same line of business at wholesale as that of
J. J. O'Brien & Co. at retail), that the firm, in which the
estate had an interest, would profit thereby, the lessors closed
the transaction with Mr. O'Brien.
The executor, thereafter finding that his position as such
conflicted with his interest as a surviving partner in the firm
of Murphy, Grant & Co., filed his account and tendered his
resignation.
During the negotiations for the O'Brien lease Mr. Grant
intimated to the heirs that he would charge no commissions
as executor.
The heirs contested the items of his account relating to
the fitting up of the leased premises, claiming that the lease
was invalid, on the grounds that better terms could have
been obtained from other parties, and that the executor was
bound to the highest degree of care, diligence and prudence;
also, that the expenses of fitting up the premises for the
occupation of J. J. O'Brien & Co. were too high, and the
improvements made for their benefit unusual on the part of
a landlord, and not "fixtures"; that the expenses were much
greater than the executor had represented to the heirs that
they would be, and that he misrepresented certain facts to
them ; further, that as a member of the firm of Murphy, Grant
& Co., the executor was interested in giving Mr. O'Brien the
Estate op Murphy. 15
preference, and that as remaining executor he had no power
to execute the first five years lease alone.
It was also claimed that he had waived his commissions as
executor, which he asked to be allowed him in his account,
which waiver was one of the inducements to the heirs for en-
tering into the lease.
It also appeared that the executor had withdrawn the sum
of $100,000 from the capital account of ]\Iurphy, Grant &
Co., and out of the same had paid a debt of the estate of
some fifty-odd thousand dollars owing to Donohue, Kelly &
Co., and had deposited the balance with these bankers, where
it was lying idle, and the heirs sought to charge him with
interest on this balance.
Jarboe, Harrison & Goodfellow, for executor.
McAllister & Bergin, for contesting heirs.
COFFEY, J. On the 26th of March. 1886, Adam Grant,
desiring to retire from his office as executor, filed his re-
port and account; on the 10th of April, 1886, Anna L.
Murphy, widow, and Helen and Fannie Murphy, daughters
of decedent, filed exceptions to said account, and on the
17th of April, 1886, they filed a supplemental and additional
objection. Isabella Murphy, another daughter of decedent,
on the said last-mentioned dates, filed in her own behalf
separate exceptions and supplemental exceptions to said ac-
count. The matter came up for hearing on the 17th of April,
1886, and occupied, from time to time, until August 28,
1886, when, after argument, it was submitted for the con-
sideration and decision of the court. The testimony is com-
prised in a volume of six hundred and six typewritten pages,
which the court has considered.
I cannot undertake to do more than to state the results of
my reflection upon the evidence and arguments.
The objections and exceptions to the account as a whole
are overruled and denied.
Whatever ma^' have been the inducements which caused
the contestants to execute the ten years lease, this court can-
not here treat that instrument as invalid.
16 Coffey's Probate Decisions, Vol. 1.
While the executor admits that at one time he entertained
and expressed the intention to renounce his commissions or
to make no claim therefor, he insists that he changed his
mind, and now demands as his due the statutory allowance.
I do not perceive any way in which, under the circum-
stances of this case, the court can deny to the executor what
the statute allows him. I find no case sustaining counsel's
view— the Estate of Davis, 65 Cal. 309, 4 Pac. 22, 3 W. C. R.
61, was a case where the renunciation was made in considera-
tion of the appointment — a promise made before the appoint-
ment that the appointee would not charge. Schouler says:
"If one has been appointed on a distinct understanding with
those interested to serve as executor or administrator with-
out recompense .... he must abide by his engagement":
Schouler on Executors, sec. 545.
That is not this case. Adam Grant made no stipulation
or agreement prior to his appointment, nor has he renounced
in writing (section 1616, Code Civ. Proc.) his claim to com-
pensation; but he insists that, notwithstanding his declared
intention at one time, he has now a strictly legal right to
commissions. The statute says (section 1618, Code Civ. Proc.)
he must be allowed commissions upon the amount of the es-
tate accounted for by him.
The court finds that the executor has not waived or re-
nounced his commissions, and that he is entitled to them —
the amount to be ascertained hereafter.
The executor is chargeable with interest on the balance of
the money withdrawn from the capital account of Murphy,
Grant & Co., which has been lying idle on deposit in the
bank of Donohoe, Kelly & Co. This balance is the difference
between the amount necessary to discharge the Donohoe debt
.and the amount drawn out of the capital account.
It is clear to the court that all expenditures in fitting up
the store for the occupancy of O'Brien & Co. in excess of
twelve thousand dollars, and all outlay in and about the
' ' parlor ' ' beyond the sum of four thousand dollars, should be
disallowed.
The lowering of the skylight was not indispensable to the
-enjoyment of the premises by the tenants of the first floor,
Estate of Murphy. 17
as sufficient light might have been had by placing a glass
roof over that part of the store now covered by the skylight,
so the architect, Percy, testifies. I do not think, from my own
observation when in company with the counsel for the re-
spective parties, that the lowering of the skylight was ju-
dicious. It certainly has not added to the rental value of the
second floor. It should be disallowed.
With reference to the mirrors and stools, while ordinarily
they might not be regarded as "fixtures," I think that under
the evidence in this case they must be so considered. For the
purposes of the l)usiness to which the premises are devoted,
the stools are about as necessary as the counters, and the tes-
timony is that the space occupied by the mirrors had to be
filled, and the cost would have been no less if paneling had
been inserted.
All items not mentioned in this memorandum are allowed.
An Executor or Administrator, like any other trustee, may waive
or renounce his right to compensation for performing the duties of
his trust: Noble v. Whitten, 38 Wash. 262, 80 Pac. 451; Estate of
Field, 33 Wash. 63, 73 Pac. 768; and a promise by him to the person
primarily entitled to the administration of the estate, before his ap-
pointment, that he will not charge for his services, is equivalent to
a renunciation of his claim: Estate of Davis, 65 Cal. 309, 4 Pac. 22.
A waiver of commissions in a petition for letters of administration
does not deprive the administratrix of the right to commissions, where
the waiver was without objection, and by leave of court withdrawn
before she was appointed: Estate of Carver, 123 Cal. 102, 55 Pac. 770.
Executors, having Improperly Withdrawn Money from the estate
to pay a bookkeeper, were held liable for interest thereon at the legal
rate until it was repaid to the estate, in Estate of Scott, 1 Cal. App.
740, 83 Pac. 85. For a further consideration of the liability of ex-
ecutors and administrators for interest on funds belonging to the
estate, see Ross on Probate Law and Practice, 702-704.
Prob. Dec, Vol. I — 2
18 Coffey ^s Probate Decisions, Vol. 1.
Estate op LENA FLEISHMAN.
[No. 11,697; decided January 13, 1892.]
Will — Attestation in Presence of Testator. — There must be two
attesting witnesses to a will, 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. In the presence of the testator means that he must not
only be present corporally, but mentally as well, capable of under-
standing the acts which are taking place before him.
A Will is not Attested in the Presenec of the Testatrix when the
witnesses subscribe their names in an apartment adjoining the room
in which she is lying ill, where it is impossible for her to see them,
she having previously signed her name while reclining on her bed,
not being able to rise therefrom.
Lena Fleishman died on November 16, 1891, leaving a hus-
band and two brothers. On December 5, 1891, a petition
was filed by the husband for the probate of a will dated
November 15, 1891. On December 23, 1891, the brothers
filed written grounds of opposition to the probate of the will.
The grounds of contest appear from the opinion of the court.
Sullivan & Sullivan, for contestants.
Craig & Meredith, for proponent.
COFFEY, J. The question here is whether the instru-
ment propounded for probate as the will of Lena Fleish-
man, deceased, was signed by the persons whose names are
appended thereto as subscribing witnesses in the presence of
the testatrix.
Section 1276 of the Civil Code of California provides, in
the matter of an attested will, subdivision 4, that 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.
In presence of the testator means that the testator must
not only be present corporally, but mentally as well, capable
of understanding the acts which are taking place before
him.
In this case the instrument was signed by the subscrib-
ing witnesses in an apartment adjoining the room in which
Estate of Fleishman. 19
the testatrix was lying ill upon her bed. Between the bed,
and opposite where her head lay, there was a partition wall,
an absolutely opaque substance, dividing the two apart-
ments, and on the other side of that wall, at a table near
the window, without the sight or hearing of the testatrix,
the two witnesses subscribed their names, the testatrix hav-
ing previously signed her name while reclining on her bed,
not being able to rise therefrom. It was impossible for her
to see what was transpiring on the other side of the wall by
iiatural vision.
These are the facts in evidence. Subjoined is a review
of the cases cited by proponent in support of the propo-
sition that there was a valid execution of the paper prof-
fered.
In Hogan v. Grosvenor, 10 Met. 56, 43 Am. Dec. 411, the
attesting witnesses signed in the presence of the testator.
In Ambre v. Weishaar, 74 111. 110, "the testatrix could
have seen the witnesses in the dining-room at the table, while
they were signing the will."
Kedfield on Wills declares the rule as follows: "The rule
requires that the witnesses should be actually within the
range of the organs of sight of the devisor, and where the
devisor cannot by any possibility see the act, that is out of
his presence": Redfield on Wills, 247 (star * page).
In Shires v. Glasscock, 2 Salk. 688, the court decided "that
it is enough if the testator might see — it is not necessary
that he should actually see — them (the attesting witnesses)."
In Dary v. Smith, 3 Salk. 395, the court sustained the
will, saying, "it was a sufficient subscribing within the mean-
ing of the statute, because it was possible that the testator
might see them (the attesting witnesses) subscribe their
names. ' '
In Todd V. Winchelsea, 2 Car. & P. there was a question
as to whether the will was attested in the room where the
will was executed, or whether in a part of the ad.ioining
room where the testator "might have seen" the witnesses
attest the will. The court in that case, instructing the jury,
said: "You will therefore have to say whether the will was
attested in the bedroom; if so, there is no doubt. But, if
20 Coffey's Probate Decisions, Vol. 1.
you think it was attested in the other room, whether it was
attested in such part of that room that the testator might
have seen the witnesses attest it. In either of those eases
plaintiffs are entitled to a verdict; but if you think other-
wise, I am of the opinion that, in point of law, you ought
to. find a verdict for the defendants."
In Hill V. Barge, 12 Ala. 695, 696, we find: ''The design
of the statute in requiring the attestation to be made in the
presence of the testator was to prevent the substitution of a
surreptitious will. In the presence of the testator, there-
fore, is within his view. He must be able to see the wit-
nesses attest the will, or, to speak with more precision, their
relative position to him, at the time they are subscribing
their names as witnesses, must be such that he may see them
if he thinks proper."
In Nock V. Nock, 10 Gratt. 106, the witness signed at a
bureau in an adjoining room, sixteen or seventeen feet from
the bed where the testator was lying with his head raised
up, and from which he could, through an open door, plainly
see the witnesses, excepting their forearms and hands, while
writing.
In Lamb v. Girtman, 26 Ga. 629, it was held that the lower
court erred because it refused to charge that, if the testator
might have seen the attestation, it is sufficient.
In Wright v. Lewis, 5 Rich. 212, 216, 55 Am. Dec. 714, the
testator stepped into and remained in the adjoining room,
from which he might have seen the witnesses subscribe their
names.
In Watson v. Pipes, 32 Miss. 468, the court say. "It is
settled by all the authorities that it is not absolutely essential
that the testator should actually see, but if the witnesses
be shown to have been within the scope of the testator's view
from his actual position, it will be sufficient."
In McElfresh v. Guard, 32 Ind. 412, the trial court in-
structed the jury that "the law requires attestation in the
presence of the testator to prevent obtaining another will
in place of the true one. It is therefore enough that the
testator might see," etc. The instruction was sustained.
Estate of Fleishman, 21
Contestants refer to the following cases as instances of
what has been deemed not a sufficient signing in the tes-
tator's presence:
In Edelston v. Spake,, Holt, 222, 223, :\rod. 259, Comb.
156, the witnesses subscribed their names in a hall adjoin-
ing the room where the testator lay, but in such a place that
he could not see them.
In Machell v. Temple, 2 Show. 288, the witnesses with-
drew out of sight into another room, at the request of the
testator, because the noise in his sick room disturbed him.
In Broderick v. Broderick, 1 P. Wms. 239, 4 Vin. Abr,
534, the witnesses, for the ease of the testator, went down-
stairs into another room, to attest his will. See, also. Onions
V. Tyrer, Id. 343.
In Clark v. Ward, 1 Bro. P. C. 137, the witnesses sub-
scribed at a window, in a passageway, where they could see
but part of the bed, and the testator, lying thereon, could
not see them.
In Tribe v. Tribe, 13 Jur. 793, 1 Rob. 775, the testatrix
lay in bed with the curtains drawn, and her back turned
toward the witnesses, who were signing at a table in the same
room.
In Wright v. ]\Ianifold, 1 M. & S. 294, the testator could
not, from his room, have seen into the room where the wit-
nesses signed, without putting his head out into a passage-
way which connected the two rooms, although, as the wit-
nesses were retiring from his room, he called upon his at-
tendant to assist him in rising.
In Ellis' Case, 2 Curt. 395, the witnesses were in an ad-
joining room, where they could neither see the testator nor
be seen by him, although they were so near that they could
hear him breathe.
In Colman's Case, 3 Curt. 118, folding doors between the
two rooms were open, being tied back, but the table on which
the witnesses wrote was so situated that the testator could
not possibly have seen it.
In Norton v. Bazett, Dea & S. (5 Am. Law Reg. 52), the
witnesses were clerks of the testator, and called by him from
an outer office into his own, where he was sitting with his
22 Coffey's Probate Decisions, Vol. 1.
back toward the door. The will was written on two sepa-
rate sheets, the second (see Bond v. Sewell, 3 Burr. 1773;
Gass V. Gass, 3 Humph. 278; Horsford's Case, L. R. 3 Prob.
211) of which he signed, and they (his table being full of
papers) took it into their room for attestation. When they
returned he was standing up, but otherwise relatively in the
same position as before, and from which it was impossible
for him to have seen them while signing.
In Killiek's Case, 3 Sw. & Tr. 578, the deceased could, by
changing her position in bed, have seen the witnesses sign
her will in another room, but the proof was that she did not
do so.
In Violette v. Therriau, 1 Pug. & Bus. (N. B.) 389, the
testator had been paralyzed and was, when his will was exe-
cuted, unable to rise from his bed without assistance. A
small table stood at the foot of his bed, and was concealed
therefrom by the footboard of the bed rising above it, so
that, although he could see the persons of the witnesses,
their arms and hands and the paper on which they wrote
on the table were invisible.
In Robinson v. King, 6 Ga. 539, the testator signed his
will in bed, and was not able to get up without assistance.
The witnesses wrote their names thereto on a piazza ad-
joining his room, about ten feet from him. There was a
door communicating with the room, but their relative posi-
tions were such that they could not see each other.
In Brooks v. Duffell, 23 Ga. 441, a will was executed by
the testator in bed, toward evening, and, for the sake of
seeing better, the witnesses stepped to a door, which, when
open swung against the side of his bed, so that, without
changing his position, it would have been impossible to see
them, and he was too weak to notice anything that was go-
ing on.
In Reed v. Roberts, 26 Ga. 294, 71 Am. Dec. 210, the
testator, in extremis, was lying in a bed with four high posts,
having a counterpane stretched across those at the head to
protect him from the air. After he had signed, the will
was taken behind the head of the bed, to a chest against
the wall some seven or eight feet distant and attested. The
Estate of Fleishman. 23
proof showed that he was too feeble to change his position
without help.
In Graham v. Graham, 10 Ired. 219, the witnesses went
into another room to sign at a chest standing against the
partition, two or three feet from the open door. The bed
in which the testator lay stood also against, the partition,
with its head nearly opposite to the chest, so that the testator
could, by turning his head, see the backs of the witnesses
as they sat at the chest writing, l)ut he could not see their
faces, arms or hands, nor the paper on which they were
writing.
In Lamb v. Girtman, infra, the testator signed his will
at a small table in a hallway, and then, being in feeble health,
withdrew to his room, adjoining, accompanied by a witness,
who returned to the others, and then they all signed. The
testator, when afterward noticed by them, was lying in the
ordinary attitude on his bed, and in that position could not
have seen the witnesses when signing.
In Reynolds v. Reynolds, 1 Spears, 253, 40 Am. Dec. 599,
the testator, after being raised to sign his will, sank back
in his bed, and the witnesses went to a table in a hall and
signe'd their names. The testator could not see them as he
lay, and, although he had strength to rise sufficiently to see
them, yet he did not rise.
In Jones v. Tuck, 3 Jones, 202, the testator could not see
the witnesses while signing his will in another room, with-
out raising himself up on his elbow, but this the witnesses
thought him capable of doing, because they saw" him turn
several times in his bed.
In Orndorff v. Hummer, 12 B. Mon. 619, the table on which
the witnesses wrote stood just behind the head of the lounge
on which the testator lay, and four or five feet therefrom.
He could not, from his position, have seen the witnesses at
all, and it seemed doubtful whether he could, without assist-
ance, have changed hi.s posture.
In Neil v. Neil, 1 Leigh, 6, the testator, when two of the
witnesses signed at a table by his bed, lay with his back to
them, and his sight was poor, and the light in the room dim;
he could not rise alone.
24 Coffey's Probate Decisions, Vol. 1.
In Boldry v. Parris, 2 Cush. 433, the testatrix and one
witness signed in her room, and then that witness took the
will into an adjoining room, where it was signed by the other
two witnesses, out of the testatrix's sight altogether.
In Edelen v. Hardy, 7 Har. & J. 61, 16 Am. Dec. 292,
the testator, after signing, requested the witnesses to retire
and they went into an adjoining room, separated from the
other by a plank partition; there was no direct communica-
tion between the rooms, nor could testator have possibly seen
them : See Russell v. Falls, 3 Har. & McH. 457, 1 Am. Dec.
380. See, also, Redfield on Wills, sec. 245, et seq ; Jarman on
Wills, 5th ed. (Bigelow), star * p. 87, et seq., and notes;
also section 1276, Civil Code.
In conclusion, the court may refer to the record in the
matter of the estate of J. B. Firnkas, deceased, No. 2774,
of this court, decided August 19, 1884.
In that case the attesting witnesses signed the alleged will
of the deceased, not in the actual presence of the testator,
but in an adjoining room where they could not be seen by
him at the time they signed their names as witnesses to the
will.
This court held that the instrument was not attested in
the manner required by law, and denied probate thereof.
The facts in the Firnkas will case and in the case at bar
are curiously coincidental, and the judgment here should
correspond.
Judgment for contestants.
ATTESTATION AND WITNESSING OF WILLS.
Object and Purpose of Attestation. — In Appeal of Canada, 47 Conn.
450, the court declares that the primary reason for the presence of a
witness to a will is not that he has known the testator long or inti-
mately; not that he is required to use or have any skill in detecting
the presence of insanity or other forms of mental disease or weakness;
not that he is to have any opportunity for discovering the fraudu-
lent scheme which may have culminated in the act of the testator.
If the presence of one or three witnesses provides any degree of se-
curity against the procurement of a will from a competent testator
by fraud, or against the procurement of one from a testator without
mental capacity, it is an incidental benefit; it was not in the mind of
the law. That only intended that the witness should be able, with
Estate op Fleishman. 25*
a great degree of certainty at all times, possibly at great length of
time after his attestation, to testify that the testator put his name-
upon the identical piece of paper upon which he placed his own.
Similarly, in Pollock v. Glassel, 2 Gratt. 439, the court holds that the
object of witnessing a will is "not to obtain from the witnesses a
certificate of the essential facts of the transaction, but to provide the-
means of proving them by persons entitled to confidence and selected
for the purpose. The subscription of their names by the witnesses
denotes that they were present at, and prepared to prove, the due ex-
ecution of the instrument so attested, and nothing more"; See, also,
Huff V. Huff, 41 Ga. 696. Some authorities, however, take a broader
view of the purposes of attestation and witnessing. Thus, in Ee
Pope's Will, 139 N. C. 484, 111 Am. St. Rep. 813, 52 S. E. 23.5, the
court holds: "One principal purpose in requiring the attestation of
wills is to surround the testator with witnesses who are charged with
the present duty of noting his condition and mental capacity. An-
other is to insure the identity of the instrument and to prevent the
fraudulent substitution of another document at the time of its execu-
tion. ' ' To the same effect are Odenwaelder v. Schorr, 8 Mo. App.
458; Cornelius v. Cornelius, 52 N. C. 593. This latter view is also
sustained by other decisions set forth in the discussion of the partic-
ular requisites of attestation and witnessing below.
Attestation vs. Subscription. — In some earlier decisions, attestation
is distinguished from subscription. It is said: "To attest the publica-
tion of a paper as a last will, and to subscribe to that paper the names
of the witnesses, are very different things, and are required for ob-
viously distinct and different ends. Attestation is the act of the
senses, subscription is the act of the hand; the one is mental, and the
other mechanical; and to attest a will is to know that it was published
as such, and to certify the facts required to constitute an actual and
legal publication; but to subscribe a paper published as a will is only
to write on the same paper the name of the witness for the sole pur-
pose of identification"; Swift v. Wiley, 1 B. Mon. 114; Upchurch v.
LTpchurch, 16 B. Mon. 102; In re Downie's Will, 42 Wis. 66. In later
decisions, however, this distinction is abandoned. In Skinner v.
American Bible Soc, 92 Wis. 209, 65 N. W. 1037, the court says: "It
would be difficult, no doubt, to satisfactorily define that element in
the attestation of a will which is not also present in the mere sub-
scription to a will. No physical act is required in the one which is
not also required in the other, and it is not clear what mental act or
fact appropriate to the one is absent from the other": To the same-
effect, Luper v. Werts, 19 Or. 122, 23 Pac. 850. Similarly, in Drury v.
Connell, 177 111. 43, 52 N. E. 368, Sloan v. Sloan, 184 111.579, 56 N. E.
952, and Calkins v. Calkins, 216 111. 458, 108 Am. St. Rep. 233, 75
N. E. 182, 1 L. E. A., N. S., 393, the court holds that a requirement of
statutory law that a will shall be "attested" renders essential the
"subscriptions" thereof by the attesting witness, that act being in-
26 Coffey's Probate Decisions, Vol. 1.
volved in attestation. And lest the idea of attestation be confused
with the mere physical act of subscription, the court in Skinner v.
Lewis, 40 Or. 571, 62 Pac. 523, 67 Pac. 951, holds: "The attestation
.... is not a matter of mere formality in affixing one's name to
the will as a witness. There must be an active mentality connected
with it. "
Necessity Witnesses. — It is prerequisite to the validity of a will
that it be attested and witnessed in conformity with statute: Orth v.
Orth, 145 Ind. 184, 57 Am. St. Rep. 185, 42 N. E. 277, 32 L. R. A.
298; Clark v. Miller, 65 Kan. 726, 68 Pac. 1071; Reynolds v. Reynolds,
1 Spear, 253, 40 Am. Dec. 599; Davis v. Davis, 6 Lea, 543; Simmons
V. Leonard, 91 Tenn. 183, 30 Am. St. Rep. 875, 18 S. W. 280; Blanch-
ard's Heirs v. Blanchard 's Heirs, 32 Vt. 62; Pollock v. Glassel, 2 Gratt.
439; Rosser v. Franklin, 6 Gratt. 1, 52 Am. Dec. 97; McMechen v.
McMechen, 17 W. Va. 683, 41 Am. Rep. 682. This rule also applies in
cases of interlineations, corrections, and alterations to wills: Eschbach
V. Collins, 61 Md. 478, 48 Am. Rep. 123; Gardiner v. Gardiner, 65 N.
H. 230, 19 Atl. 651, 8 L. R. A. 383; Jackson v. Holloway, 7 Johns. 304.
See, also, In re Penniman, 20 Minn. 245 (Gil. 220), 18 Am. Rep. 368,
holding that after alterations and interlineations have been made in
a will, it must not only be resubscribed by the witnesses, but also
again signed by the testator. The provision often found in the stat-
utes of wills, that the witness to a will must be "credible" means
that they must be "competent," the words "credible" and "com-
petent" being synonymous when used in this connection: Sloan v.
Sloan, 184 III. 579, 56 N. E. 952; Standley v. Moss, 114 111. App. 612;
Rueker v. Lambdin, 12 Srnedes & M. 230; Fowler v. Stagner, 55 Tex.
393. The requirements of attestation and witnessing generally apply
to wills of personalty as well as of realty (Hooks v. Stamper, 18 Ga.
471; Lewis v. Maris, 1 Dall. 278; Town of Pawtucket v. Ballou, 15
R. I. 58, 2 Am. St. Rep. 868, 23 Atl. 43; Reynolds v. Reynolds, 1
Spear, 253, 40 Am. Dec. 599; Rosser v. Franklin, 6 Gratt. 1, 52
Am. Dec. 97; Blanchard 's Heirs v. Blanchard 's Heirs, 32 "Vt. 62),
though formerly they were not prescribed in cases of personalty:
Davis V. Davis, 6 Lea, 543; Moore v. Moore's Exr., 8 Gratt. 307
(before the statute of 1835). In the absence of statutory require-
ment, a will is valid without witnessing or attestation: In re High,
2 Doug. 515. Moreover, the requirements of attestation and wit-
nessing, as set forth in this article, do not apply to nuncupative
wills, nor in jurisdictions where they are recognized to olographic
wills.
Number of Witnesses. — Under the law prevailing in most jurisdic-
tions, two competent witnesses to a will are sufficient: In re Walker
110 Cal. 387, 52 Am. St. Rep. 104, 42 Pac. 815, 30 L. R. A. 460;
Clark V. Miller, 65 Kan. 726, 68 Pac. 1071; Griffith's Exr. v. Griffith,
5 B. Mon. 511; Odenwaelder v. Schorr, 8 Mo. App. 458; Williams v.
Miles, 68 Neb. 463, 110 Am. St. Rep. 431, 94 N. W. 705, 96 N. W,
Estate of Fleishman. 27
151; In re Look's Will, 5 N. Y. Supp. 50; In re Williams' Will, 2
Conn. Sur. 579, 15 N. Y. Supp. 828, judgment affirmed, 64 Hun, 636,
19 N. Y. Supp. 613; In re Nevin's Will, 4 Misc. Rep. 22, 24 N. Y.
Supp. 838; Luper v. Werts, 19 Or. ,122, 23 Pac. 850; In re Irvine's
Estate, 206 Pa. 1, 55 Atl. 795; Davis v. Davis, 6 Lea, 543; Simmons
V. Leonard, 91 Tenn. 183, 30 Am. St. Eep. 875, 18 S. W. 280; Pol-
lock V. Glassel, 2 Gratt. 439; Rosser v. Franklin, 6 Gratt. 1, 52 Am.
Dec. 97; Skinner v. American Bible Soc, 92 Wis. 209, 65 N. W.
1037. Likewise under the custom prevailing in California before the
formation of the state government, two witnesses were sufficient:
Adams v. Norris, 64 U. S. 353, 16 L. Ed. 539, 1 Fed. Cas. No. 51;
McAll. 253. In other jurisdictions, however, the old English rule
requiring three or four competent witnesses still prevails: Fortner
V. Wiggins, 121 Ga. 26, 48 S. E. 694; Stirling v. Stirling, 64
Md. 138, 21 Atl. 273; Fleming v. Morrison, 187 Mass. 120, 105 Am.
St. Rep. 386, 72 N. E. 499; Gardiner v. Gardiner, 65 N. H. 230, 19
Atl. 651, 8 L. R. A, 383; Reynolds v. Reynolds, 1 Spear, 253, 40 Am.
Dec. 599; Dean v. Heirs of Dean, 27 Vt. 746; Blanchard's Heirs
V. Blanchard's Heirs, 32 Vt. 62. In Reynolds v. Reynolds, 1 Spear,
253; 40 Am. Dec. 599, the reason for requiring three or four wit-
nesses is said to be to protect men against fraudulent wills, for con-
federates in fraud usually conspire in pairs and can seldom trust
with safety any third person.
A will executed with only one witness is invalid (Potts v. Felton,
70 Ind. 166), and where three witnesses are requisite, a will executed
with only two is void as a muniment of title; a judgment admitting
it to probate is a nullity, and cannot be validated by lapse of time:
Fortner v. Wiggins, 121 Ga. 26, 48 S. E. 694.
Sufficiency of Substantial Conformity with Law. — Only a substan-
tial compliance with the requirements of the law in the attestation and
witnessing of wills is requisite, and formalities are not required which
the legislature has not plainly prescribed: Montgomery v. Perkin, 2
Met. (Ky.) 448, 74 Am. Dec, 419; Savage v. Bulger, 76 S. W. 361,
25 Ky. Law Rep. 763; Lewis v. Lewis, 11 N. Y. 220, 13 Barb. 17;
Hoystradt v. Kingman, 22 N. Y. 372; Gilbert v. Knox, 52 N. Y. 125;
Lane v. Lane, 95 N. Y. 494; In re Jones' Will, 85 N. Y. Supp. 294;
In re Williams' Will, 2 Conn. Sur. 579, 15 N. Y. Supp. 828, 64 Hun,
636, 19 N. Y. Supp. 613; In re Voorhis' Will, 125 N. Y. 765, 26 N.
E. 935, 54 Hun, 637, 7 N. Y. Supp. 596; In re Moore's Will, 109
App. Div. 762, 96 N. Y. Supp. 729. "It is not necessary that any
particular form be followed, or that any rigid rule of construction
of the statute be imposed. Any other interpretation would be to
confine the execution of testamentary documents within a narrow
compass, and would in many instances defeat the expressed inten-
tions of a person": In re Menge's Will, 13 Misc. Eep. 553, 35 N.
Y. Supp. 493. Yet, in construing the statutes of wills, it is the
intention of the legislature that must be kept in mind, and not that
28 Coffey's Probate Decisions, Vol. 1.
of the testator: In re Blair's Will, 84 Hun, 581, 32 N. Y. Supp. 845;
In re Fish's Will, 88 Hun, 56, 34 N. Y. Supp. 536. And in Savage
V. Bowen, 103 Va. 540, 49 S. E. 668, it is said that courts should
strictly follow the requirements of the law in the execution of wills,
but should not supplement those requirements with others.
Subscription or Acknowledgment by Testator.— It is provided by
the various statutes of wills in effect in the several states that a
will must be signed or subscribed (as differently provided) by the
testator with his name or mark, or, as permitted in some states, may
be signed or subscribed at the direction of the testator by another
in his stead.
Necessity of Its Being Before or to Witnesses. — In order to validate
a will, either this act of signing or subscribing must be done in the
presence of the witnesses to the will, or in lieu thereof the testator
must acknowledge the instrument or signature to the witnesses: Yoe
V. McCord, 74 111. 33; Webster v. Yorty, 194 111. 408, 62 N. E. 907;
Eeed v. Watson, 27 Ind. 443; In re Convey 's Will, 52 Iowa, 197, 2
N. W. 1084; Denton v. Franklin, 9 B. Mon. 28; Etchison v. Etchison,
53 Md. 348; Stirling v. Stirling, 64 Md. 138, 21 Atl. 273; Dewey v.
Dewey, 1 Met. (Mass.) 349, 35 Am. Dec. 367; Hogan v. Grosvenor,
10 Met. (Mass.) 54, 43 Am. Dec. 414; Nickerson v. Buck, 12 Cush.
332; Ela v. Edwards, 16 Gray, 91; Mundy v. Mundy, 15 N. J. Eq.
290 (so holding under the law of 1851, but under the statute of wills
of 1741 an acknowledgment was not sufficient) ; Chaffee v. Baptist
Missionary Convention, 10 Paige, 85, 40 Am. Dec. 225; Baskin v.
Baskin, 36 N. Y. 416; In re Look's Will, 5 N. Y. Supp. 50; In re
Look, 54 Hun, 635, 7 N. Y. Supp. 298, judgment affirmed, 125 N. Y.
762, 27 N. E. 408; In re Williams' Will, 2 Conn. Sur. 579, 15 N. Y.
Supp. 828, judgment affirmed, 64 Hun, 636, 19 N. Y. Supp. 613; In re
Carll's Will, 38 Misc. Rep. 471, 77 N. Y. Supp. 1036; Eelbeck's Dev-
isees V. Granberry, 3 N. C. 232; Eaudebaugh v. Shelley, 6 Ohio St.
307; In re Irvine's Estate, 206 Pa. 1, 55 Atl. 795 (such is the law
in case of wills disposing of property to charitable or religious uses) ;
Roberts v. Welch, 46 Vt. 164; In re Claflin's Will, 73 Vt. 129, 87
Am. St. Rep. 693, 50 Atl. 815; Rosser v. Franklin, 6 Gratt. 1, 52 Am.
Dec. 97. Where a testator makes his mark to his will in the presence
of the witnesses, no acknowledgment is necessary (Savage v. Bulger,
25 Ky. Law Rep. 763, 76 S. W. 361), and where the testator makes
such acknowledgment to the witnesses, they need not see him sign
it (Yoe V. McCord, 74 111. 33; Webster v. Yorty, 194 111. 408, 62 N.
E. 907; Etchison v. Etchison, 53 Md. 348; Stirling v. Stirling, 64
Md. 138, 21 Atl. 273; Nickerson v. Buck, 12 Cush. 332; Cravens v.
Faulconer, 28 Mo. 19; Sisters of Charity v. Kelly, 67 N. Y. 409,
reversing 7 Hun, 290; Simmons v. Leonard, 91 Tenn. 183, 30 Am.
St. Rep. 875, 18 S. W. 280; Roberts v. Welch, 46 Vt. 164; Skinner v.
American Bible Soc, 92 Wis. 209, 65 N. W. 1037), although he signed
his mark only: In re Kane's Will, 20 N. Y. Supp. 123.
Estate of Fleishman. 29
The acknowledgment need not be made to both nor to all wit-
nesses at the same time: Chase v. Kittredge, 11 Allen, 49, 87 Am.
Dec. 687; In re Diefenthaler's Will, 39 Misc. Eep. 765, 80 N. Y.
Supp. 1121. Moreover, where the witnesses are in the presence of
the testator while he signs the will, it is immaterial that the wit-
nesses do not actually see him sign: Etchison v. Etchison, 53 Md.
348; In re Bedell's Will, 2 Conn. Sur. 328, 12 N. Y. Supp. 96; Sim-
mons V. Leonard, 91 Tenn. 183, 30 Am. St. Eep. 875, 18 S. W. 280.
But if the witnesses are not present at the time of the signing of
the testator's will, and there is no subsequent acknowledgment suf-
ficient to fulfill the requirements of the law, the will is not executed
at all: Sisters of Charity v. Kelly, 67 N. Y. 409; Luper v. Werts,
19 Or. 122, 23 Pac. 850; Eichardson v. Orth, 40 Or. 252, 66 Pac. 925,
69 Pac. 455; Eoberts v. Welch, 46 Vt. 164.
Object of Requirement. — The object of the foregoing requirement
in the execution of will is to identify and authenticate the instru-
ment as one actually subscribed by the testator: Baskin v. Baskin,
36 X. Y. 416.
Sufficiency of Acknowledgment. — There is a diversity of decision
as to the sufficiency of an acknowledgment to the witnesses, depend-
ing upon the terms of the statutes of wills in the respective juris-
dictions, some of them providing that the testator must acknowl-
edge the will to be his act and deed, and others providing that he
must acknowledge his signature to the will to be his act and deed. In
Hobart v. Hobart, 154 111. 610, 45 Am. St. Eep. 151, 39 N. E. 581, affirm-
ing 53 111. App. 133, the court points out and comments on this distinc-
tion, saying in substance: In England and in New York, and perhaps
some other of the states, the statute requires that there must be an ac-
knowledgment of the signature. Decisions based on this provision of
law hold in substance that there is not a sufficient acknowledgment of
the signature by the testator when he produces a will and requests
the witnesses to sign it, unless his signature is visibly apparent on
the face of the paper, and is seen, or can be seen, by the witnesses,
especially if he does not explain the instrument to them. These de-
cisions are not, however, applicable where the statute merely re-
quires that the testator acknowledge the will or codicil to be his act
and deed, and does not specially and in terms require the signature to
be acknowledged. A man may acknowledge an entire written in-
strument to be his act and deed without necessarily calling the at-
tention of those before whom he produces it to any particular part of
the instrument. But if he is required to make acknowledgment of a
specified part of it, it may be requisite that attention should be di-
rected to that part.
Thus where the law is that the will must be acknowledged, it is
not necessary that the witnesses see_ the signature of the testator
to the will, or that the testator acknowledge his signature, or that
the witnesses know that the instrument is a will, but where the
30 Coffey's Probate Decisions, Vol. 1.
testator acknowledges to the witnesses the execution of the instru-
ment by himself the requirement of the law is satisfied: Gould v.
Chicago Theological Seminary, 189 111. 282, 59 N. E. 536; In re Barry's
Will, 219 111. 391, 76 N. E. 577; Simmons v. Leonard, 91 Tenn. 183,
30 Am. St. Eep. 875, 18 S. W. 280; Rosser v. Franklin, 6 Gratt. 1,
52 Am. Dec. 97. Thus a declaration by the testator to the wit-
nesses that the instrument is his last will (Dewey v. Dewey, 1 Met.
(Mass.) 349, 35 Am. Dec. 367; Nickerson v. Buck, 12 Gush. 332), or
that it is his act and deed (In re Barry's Will, 219 111. 391, 76 N.
E. 577; Rosser v. Franklin, 6 Gratt. 1, 52 Am. Dec. 97), or a request
by the testator to the witnesses to attest his last will, he producing
it for their signature (Tudor v. Tudor, 17 B. Mon. 383; Dewey v.
Dewey, 1 Met. (Mass.) 349, 35 Am. Dec. 367; Nickerson v. Buck,
12 Gush. 332; Simmons v. Leonard, 91 Tenn. 183, 30 Am. St. Rep.
875, 18 S. W. 280), is sufficient. Moreover, the declaration or re-
quest need not be spoke'n by the testator himself, but may be made
by another in his presence, he himself remaining silent, where it
appears from the surrounding circumstances that the other was act-
ing for the testator at his instance: Denton v. Franklin, 9 B. Mon.
28. See, also, to same effect, In re Kane's Will, 20 N. Y. Supp. 123.
Furthermore, this acknowledgment need not be made in language
at all, but any act, sign, or gesture of the testator which indicates
an acknowledgment of the will with unmistakable certainty, will
suffice: Gould v. Chicago Theological Seminary, 189 111. 282, 59 N.
E. 536; In re Barry's Will, 219 Dl. 391, 76 N. E. 577; Ela v. Ed-
wards, 16 Gray, 91; Ludlow v. Ludlow, 36 N. J. Eq. 597. Thus
where the testator, having heard read the attesting clause of his
will reciting that he had executed the instrument as his will, handed
the subscribing witnesses the pen and saw them sign it, but uttered
not a word, he acknowledged it as satisfactorily as though he had
said, "I, , do acknowledge this instrument to be my last
will and testament": Allison v. Allison, 46 111. 61, 92 Am. Dec.
237.
Where, however, the law is that the signature to the will must
be acknowledged, it is requisite that the testator's signature affixed
to the will be shown to the witnesses and identified and recognized
by the testator, and in some apt and proper manner acknowledged
by him to be his signature: Lewis v. Lewis, 11 N. Y. 220, affirming
13 Barb. 17; Baskin v. Baskin, 36 N. Y. 416; In re Mackey's Will,
110 N. Y. 611, 6 Am. St. Rep. 409, 18 N. E. 433, 1 L. R. A. 491; In re
Eakin's Estate, 13 Misc. Rep. 557, 35 N. Y. Supp. 489; Raudebaugh
v. Shelley, 6 Ohio St. 307. Thus where at the time a witness sub-
scribed a will she had just entered the house where the testator
was, and as she entered said to the testator, "Are you making your
will?" to which he responded, "Yes," and added that he wanted
her to put her name to the paper he had in his hand at the place
he pointed out, which she did, there is no sufficient acknowledgment
Estate of Fleishman. 31
of his signature to the will: In re Simmons' Will, 56 Hun, 642, 9
N. Y. Supp. 352, affirmed without opinion, 124 N. Y. 663, 27 N. E.
413. The exhibition, however, of a will and of the testator's sig-
aature attached thereto, made by the testator to a witness, and his
,ieclaration to the witness that it was his last will and testament
and his request to the witness to attest the same, constitute together
a sufficient acknowledgment by the testator of the signature to the
will: Baskin v. Baskin, 36 N. Y. 416, 48 Barb. 200 (Parker and
Grover, J J., dissenting); Willis v. Mott, 36 N. Y. 486; Sisters of
Charity v. Kelly, 67 N. Y. 409; In re Phillips, 98 N. Y. 267; In re
Lang's Will, 9 Misc. Rep. 521, 30 N. Y. Supp. 388; In re Aker's
Will, 74 App. Div. 461, 77 N. Y. Supp. 643.
Request to Witnesses to Sign. — In some states there must be a re-
quest from the testator to the witnesses to sign his will: Mundy v.
Mundy, 15 N. J. Eq. 290; In re Williams' Will, 2 Conn. Sur. 579, 15
N. Y. Supp. 828, 64 Hun, 636, 19 N. Y. Supp. 613; Vogel v. Lehritter,
139 N. Y. 223, 34 N. E. 914. "The object of the statute is that an
officious signing by the witnesses, without any privity with the tes-
tator, should not be recognized as sufficient": Peck v. Gary, 27 N.
Y. 9, 84 Am. Dec. 220, affirming 38 Barb. 77. The manner and form
in which the request must be made, and the evidence by which it
must be proved, are not, however, prescribed, and no precise form
of words addressed to each of the witnesses at the very time of
attestation is required; but any communication importing such re-
quest, addressed to one of the witnesses in the presence of the other,
and which, by a just construction of all the circumstances, is in-
tended for both, is sufficient. So where one of the subscribing wit-
nesses, in the presence of the other, asked the testator if he wished
him to sign or witness the paper as his will, and the testator answered
in the affirmative, and both thereupon subscribed the will, the publi-
cation is sufficient: Coffin v. Coffin, 23 N. Y. 9, 80 Am. Dec. 235.
See, also. In re Kane 's Will, 20 N. Y. Supp. 123. Likewise where,
before the witnesses signed a will, the draftsman said to the testator,
"Here are M. and H.; do you wish them to act as witnesses to this,
your will?" to which he replied, "Yes, I do," and then subscribed
himself, after which the witnesses did, the request is sufficient: In re
Menge's Will, 13 Misc. Rep. 553, 35 N. Y. Supp. 493. Moreover,
where the words of request are made in the presence of the testator,
they may proceed from another than the testator, and will be re-
garded as those of the testator, although the testator said not one
word and did not indicate his acquiescence by act or motion, pro-
vided that the circumstances show that he adopted them and that
the party speaking them was acting for him with his assent: Bundy
V. McKnight, 48 Ind. 502; In re Hull's W^ill, 117 Iowa, 738, 89 N.
W. 979; In re Murphy's Will, 15 Misc. Rep. 208, 37 N. Y. Supp.
223; Cheatham v. Hatcher, 30 Gratt. 56, 32 Am. Rep. 650. So wliorc
the person who had drawn up a will for a testator and was attending
'32 Coffey's Probate Decisions, Vol. 1.
to his execution for him, they both being in a bank, called up three
persons who were in their hearing to witness the will, which they
did, the subscribing by them was done at the testator's request:
Peck V. Gary, 27 N. Y. 9, 84 Am. Dec. 220, 38 Barb. 77. Likewise,
where counsel who drew a will for a testator and acted as witness
with the consent of the testator requested his stenographer to attest
as a witness, such request being made in an adjoining room out of
the hearing of the testator, after which the witness entered the
room where the testator was and signed her name in the testator's
presence, nothing further being said to her and no objection being
made by the testator, the request to the witness is sufficient: Ames
V. Ames, 40 Or. 495, 67 Pac. 737.
In other states, the statutes of wills there prevailing do not re-
quire that a testator should ask the witnesses to his will to attest it;
his assent, either express or implied, is sufficient; yet the act must
:be done with his knowledge, and not in a clandestine or fraudulent
manner: Higgins v. Carlton, 28 Md. 115, 92 Am. Dec. 666; Etchison
V. Etchison, 53 Md. 348; In re Meurer's Will, 44 Wis. 392, 28 Am.
liep. 591.
In yet other states, it is immaterial whether or not the witnesses
to a will attested it at the request of the testator: Sandley v. Moss,
114 111. App. 612; Dyer v. Dyer, 87 Ind. 13; In re Allen, 25 Minn.
.39; Savage v. Bowen, 103 Va. 540, 49 S. E. 668. See, also, Huff v.
Huff, 41 Ga. 696, where the court held that the law implies a re-
•quest from the testator to the witnesses to attest hia will from their
iconsummation of the act, that no special request by the testator is
.necessary to constitute the attesting witnesses competent, that if he
■does not object his assent is equivalent to a request and satisfies the
requirements of the law, and that an instruction that if the jury
believed from the evidence that one of the witnesses was suggested
to the testator as a witness to his will, and the testator assented to
such suggestion, such assent was, in law, a request, or equivalent to
-a request, is not erroneous.
Publication, or Declaration of Character of Instrument. — In some
states it is prerequisite to the execution of a will that there be some
•declaration by the testator to the witnesses that the instrument at-
tested by them is his last will and testament: Cravens v. Faulconer,
28 Mo. 19; Mundy v. Mundy, 15 N. J. Eq. 290; Ludlow v. Ludlow,
36 N. J. Eq. 597; Clark v. Clark, 64 N. J. Eq. 361, 52 Atl. 225;
Bemsen v. Brinckerhoff, 26 Wend. 325, 37 Am. Dec. 251, affirming
Erinckerhoff v. Eemsen, 8 Paige, 488; Seymour v. Van Wyck, 6 N. Y.
120; Lewis v. Lewis, 11 N. Y. 220, 13 Barb. 17; Coffin v. Coffin,
■23 N. Y. 9, 80 Am. Dec. 235; Baskin v. Baskin, 36 N. Y. 416; Gilbert
V. Knox, 52 N. Y. 125; In re Look's Will, 5 N. Y. Supp. 50; In re
Look, 54 Hun, 635, 7 N. Y. Supp. 298, judgment affirmed, 125 N. Y.
762, 27 N. E. 408; In re Dale's Will, 56 Hun, 169, 9 N. Y. Supp.
.■396, affirmed without opinion, 134 N. Y. 614, 32 N. E. 649; In re
Williams' Will, 2 Conn. Sur. 579, 15 N. Y. Supp. 828, 64 Hun, 636,
Estate of Fleishman. 33
19 N. Y. Supp. 613; Vogel v. Lehritter, 135 N. Y. 223, 34 N. E. 914;
In re Carll's Will, 38 Misc. Eep. 471, 77 N. Y. Supp. 1036; In re
Moore's Will, 109 App. Div. 762, 96 N. Y. Supp. 729 (requisite iu
case of olographic wills). Such declaration is what is known in
technical language as a publication of a will (Eemsen v. Brincker-
hoff, 26 Wend. 325, 37 Am. Dec. 251), and without it the will is
invalid: Peck v. Gary, 27 N. Y. 9, 84 Am. Dec. 220, affirming 38
Barb. 77. Publication "is important, first, in denoting that the
testator knows the nature of the instrument he is executing, and to
check any deception upon him. In the second place, and also in
Older that there may be no imposition perpetrated, it is important
that the subscribing witnesses understand that they are attesting the
signature to the will of the person at whose request they severally
subscribe their names. They realize, if the document is a will, that
they are expected to remember what occurred at its execution and
be ready to vouch for its validity in court. The declaration of the
testator that the instrument is his will is not solely, therefore, for
the purpose of showing that he knew that he was executing his
will": In re Moore's Will, 109 App. Div. 762, 96 N. Y. Supp. 729.
See, also, Baskin v. Baskin, 36 N. Y. 416; Gilbert v. Knox, 52 N. Y.
125.
A substantial compliance with the requirement of publication is
not only requisite but sufficient: In re Beckett, 103 N. Y. 167, 8 N.
E. 506; In re Dale's Will, 56 Hun, 169, 9 N. Y. Supp. 396, affirmed
without opinion, 134 N. Y. 614, 32 N. E. 649. "It is a substantial
compliance with the statute, if in some way or mode the testator
indicates that the instrument that the witnesses are requested to
subscribe as such is intended or understood by him to be his executed
will The legislature only meant that there should be some
communication to the witnesses indicating that the testator intended
to give effect to the paper as his will, and that any communication
of this idea or to this effect will meet the object of the statute;
that it is enough if in some way or mode the testator indicates
that the instrument the witnesses are requested to subscribe as such
is intended or understood by him to be his will. The word 'declare'
is said to signify 'to make known, to assert to others, to show
forth'; and this in any manner, cither by words or acts, writing or
in signs; in fine, that to declare to a witness that the instrument
subscribed was the testator's will must mean to make it distinctly
known to him by some assertion or by clear assent in words or
signs": In re Kane's Will, 20 N. Y. Supp. 123. See, also, Cravens
V. Faulconer, 28 Mo. 19; Reinsen v. Brinckerhoff, 26 Wend. 325, 37
Am. Dee. 251; In re Murphy's Will, 15 Misc. Rep. 208, 37 N. Y.
Supp. 223; In re Cavil's Will, 38 Misc. Rep. 471, 77 N. Y. Supp.
103(5; In re Moore's Will, 109 App. Div. 762, 96 N. Y. Supp. 729. In
Rp Beckett, 103 N. Y. 167, 8 N. E. 506, the court further says:
-"Where the testator cannot speak at all, or only with difficulty, he
Prob. Dec, Vol. I — 3
34 Coffey ^s Probate Decisions, Vol. 1.
may communicate his knowledge by signs or by words to some listen-
ers unintelligible. He must communicate it, however; but if he does
that in a manner capable of conveying to the minds of the witnesses
his own present consciousness that the paper being executed is a will,
that must necessarily be sufficient." Likewise in Mundy v. Mundy,
15 N. J. Bq. 290, the court holds that the provision of the New
Jersey statute of wills of 1851 that the writing must be declared
by the testator to be his last will and testament requires no more
formality than the act of 1741 which provided that the will must
be published. So where one of the subscribing witnesses in the
presence of the other asked the testator if he wished him to sign
or witness the paper as his will, and the testator answered in the
affirmative, the publication was sufficient as to both witnesses: Coffin
V. Coffin, 23 N. Y. 9, 80 Am. Dec. 235. Or, where the draftsman of
a will asked the testatrix "if she wanted B and him to witness the
will," which then lay before them with the subscription of the testa-
trix upon it, and she answered in the affirmative, the publication is
sufficient: In re Menge's Will, 13 Misc. Eep. 553, 35 N. Y. Supp. 493.
To the same effect, In re Murphy's Will, 15 Misc. Eep. 208, 37 N.
Y. Supp. 223. And where it was understood by the witnesses to a
codicil when they were sent for that it was to witness a codicil, th<
statement of the testator upon their arrival, "It lays there on the
desk; I have signed it, and there are only two lines left; you sign
it on one, and Frank on the other," constitutes a sufficient publica-
tion: In re Carll's Will, 38 Misc. Eep. 471, 77 N. Y. Supp. 1036.
Likewise where the testator knew and the witnesses understood from
his acts and conduct, as he intended they should, that the instru-
ment then executed was his will, there is a sufficient publication:
Lane v. Lane, 95 N. Y. 494. Moreover, the fact that the testatrix's
act of declaration of an instrument as her will included a reference
to a previous conversation between her and the attesting witnesses,
which reference was of such a character that without it there would
be no publication of the will, does not render the publication in-
sufficient: In re Beckett, 103 N. Y. 167, 8 N. E. 506. On the other
hand where the messenger who called a witness told him that he
was wanted to subscribe a will, but while he was in the room sub-
scribing it nothing was said to him of the nature of the paper, there
is no sufficient declaration that the paper was a will: In re Nevin's.
Will, 4 Misc. Eep. 22, 24 N. Y. Supp. 838.
Again, it is not necessary that the testator should, by his own
words or acts, publish the will, for this in some cases might be
impossible through sickness or bodily infirmity, but it may be done
by another in his presence and hearing, acting for him with his
assent, he being able to dissent but not dissenting: Mundy v. Mundy,.
15 N. J. Eq. 290; Ludlow v. Ladlow, 36 N. J. Eq. 597; Gilbert v.
Knox, 52 N. Y. 125.
The act of publication is not complete until the witnesses under-
stand from the testator that the instrument they attest is a will: In
Estate of Fleishman. 35
re Moore's Will, 109 App. Div. 762, 96 N. Y. Supp. 729. And "it
will not suffice that the witnesses have elsewhere and from some
other sources learned that the document which they are called to
attest is a will, or that they suspect or infer from the circumstances
and occasion that such is the character of the paper. The fact must
in some manner, although no particular form of words is required, be
declared by the testator in their presence, that they may not only
know the fact, but that they may know it from him, and that he
understands it, and, at the time of its execution, which includes pub-
lication, designs to give effect to it as his will": Lewis v. Lewis,
11 N. Y. 220, 13 Barb. 17. To the same effect, see Gilbert v. Knox,
52 N. Y. 125.
While olographic wills are not recognized in New York as such,
yet where a will is wholly in the testatrix's own handwriting, "crit-
icism of the terms and manner of what is claimed to have been a
sufficient publication need not be so close or severe as where the
question whether the testatrix knew that she was executing a will
depends solely upon the fact of publication": In re Beckett, 103 N.
Y. 167, 8 N. E. 506. To the same effect, In re Aker's Will, 74 App.
Div. 461, 77 N. Y. Supp. 643; In re Moore's Will, 109 App. Div. 762,
96 N. Y. Supp. 729.
In other states no declaration to the witnesses or otherwise of the
nature of the document the witnesses are called upon to and actually
do witness is requisite, and the fact that its nature and character is
unknown to either or all of them docs not impair its validity: Ap-
peal of Canada, 47 Conn. 450, holding it error to instruct the jury that
it was necessary that the subscribing witness of a will should know
that the instrument which he subscribed was a will: Dickie v. Carter,
42 111. 376; In re Storey's Will, 20 111. App. 183; Kobinson v, Brewster,
140 111. 649, 33 Am. St. Eep. 265, 30 N. E. 683; Webster v. Yorty, 194
111. 408, 62 N. E. 907; In re Barry's Will, 219 111. 391, 76 N. E. 577;
Brown v. McAlister, 34 Ind. 375; Turner v. Cook, 36 Ind. 129; In re
Hulse's Will, 52 Iowa, 662, 3 N. W. 734, holding that a statutory re-
quirement that a will be "witnessed" does not require its publica-
tion; Eay V. Walton, 2 A. K. Marsh. 71; Flood v. Pragoff, 79 Ky. 607,
relating to a codicil; Osborn v. Cook, 11 Cush. 532, 59 Am. Dec. 155,
holding that while it was to some extent the usage of courts of pro-
bate to inquire of the witnesses to a will whether the testator had
declared the instrument to be his will, and while such declaration
frequently makes a part of the attestation clause of wills, it is unnec-
essary; Ela V. Edwards, 16 Gray, 91; Chase v. Kittredge, 11 Allen, 49,
87 Am. Dec. 687; Watson v. Pipes, 32 Miss. 451; Luper v. Werts, 19
Or. 122, 23 Pac. 850; Skinner v. Lewis, 40 Or. 571, 62 Pac. 523, 67
Pac. 951; Loy v. Kennedy, 1 Watts & S. 396; Appeal of Linton, 104
Pa. 228, in case of wills of married women; Dean v. Heirs of Dean, 27
Vt. 746; In re Claflin's Will, 75 Vt. 19, 52 Atl. 1053, 58 L. R. A. 261.
Compare, however. In re Claflin's Will, 73 Vt. 129, 87 Am. St. Rep.
36 Coffey's Probate Decisions, Vol. 1.
693, 50 Atl. 815; Beane v. Yerby, 12 Gratt. 239; Allen v. Griffin, 69
Wis. 529, 35 N. W. 21; overruling In re Downie's Will, 42 Wis. 66.
In a few decisions the superfluousness of a declaration of the char-
acter of the instrument is explained or excused on the ground that
the writing out and signing of the will on paper by the testator con-
stitutes a sufficient publication thereof: Eay v. Walton, 2 A. K.
Marsh. 71; Watson v. Pipes, 32 Miss. 451; Dean v. Heirs of Dean, 27
Vt. 746. And in Loy v. Kennedy, 1 Watts & S. 396, the court says:
"To require more [in the execution of a will] would frequently do
mischief, as a testator is frequently disposed to conceal the fact that
the instrument executed is a will. ' '
Where, however, after subscription of a will by a subscribing wit-
ness, the testator declares to the witness that it was ' ' a fake will,
made for a purpose," his attestation and subscription of the will is
invalid: Fleming v. Morrison, 187 Mass. 120, 105 Am. St. Eep. 386, 72
N. E. 499.
Necessity of Signing and Attestation by Witnesses. — In most states
it is necessary that the witnesses to a will subscribe and attest the
same: See the statutes of the various states. And in Iowa, under a
statute requiring a will to be in writing and "witnessed" by two
witnesses, the court has held it necessary to the validity of a will
that the witnesses should "subscribe" the will. For,_as there said by
the court, "to say that a writing is witnessed includes, as it seems
to us, almost necessarily, the idea that it is witnessed in writing, and
to exclude the conclusion that it is witnessed in any other manner.
.... This is sustained by the thought that the witnesses to a will
become such from the time they thus sign it. They testify from that
moment, and hence, though they should die before the testator or be-
fore the probate of the will, it is still good If without anything
more than mere memory to identify the instrument, disregarding the
consideration that the testator deliberately and formally made his
will, desiring and wishing particular persons to attest it in writing,
these most solemn of all writings may be established by the recol-
lection of witnesses months and years afterward, immeasurable would
be the temptations to frauds and perjuries": In re Boyens' Will, 23
Iowa, 354. In Pennsylvania, however, where the statute of wills re-
quires the signature of the testator to be proved by at least two com-
petent witnesses, neither subscribing nor attesting witnesses are neces-
sary to give validity to a will: Hight v. Wilson, 1 Dall. 94, 1 L. Ed.
51; In re Irvine's Estate, 206 Pa. 1, 55 Atl. 795. And under the
custom prevailing in California, before the formation of the state
government, to validate a will it was only necessary that the testator
and the witnesses should alike hear and understand the testament, and
that under such conditions its publication as the will of the testator
should be made. It might be drawn in another language from that
understood by the testator and witnesses, the notary drawing it under-
standing both, and the witnesses understanding the language of the
Estate op Fleishman. 37
testator: Adams v. Norris, 64 U. S. 353, 16 L. Ed. 539; affirming same
case under name of Adams v. De Cook, 1 Fed. Cas. No. 51, McAll. 253.
Mode of Subscription. — A witness to a will may sufficiently sub-
scribe a will by making his mark thereon: In re Pope's Will, 139
N. 'C. 484, 111 Am. St. Eep. 813, 52 S. E. 235; Ford v. Ford, 7 Humph.
92. Moreover, a witness' name may be written thereon by another
at his instance and direction, and in his presence: Upchurch v. Up-
church, 16 B. Mon. 102; In re Pope's Will, 139 N. C. 484, 111 Am. St.
Eep. 813, 52 S. E. 235; Simmons v. Leonard, 91 Tenn. 183, 30 Am. St.
Eep. 875, 18 S. W. 280. For such subscription by another "furnishes
as much assurance of identity as the making of a mark A
literal adherence to the words of the statute would operate harshly,
and exclude all persons unable to write their names, as witnesses to
wills, however, worthy of credence. A more liberal construction will
as effectually accomplish the ends of the statute, and not violate its
language": Upchurch v. Upchurch, 16 B. Mon. 102. In North Caro-
lina, it is held that the fact that the witness himself is able to write
does not impair the validity of such signature by another (In re
Pope's Will, 139 N. C. 484, 111 Am. St. Eep. 813, 52 S. E. 235); but
in Tennessee, it is held that where the witness' name is written by
another, the witness himself must countersign it with his mark or
other identifying sign, and further, that a competent witness cannot
effectively procure his signature to be made thereon by one incom-
petent to have himself been a witness to a will, for "to permit the
devisee to write the name of the subscribing witness would expose the
will to little less danger of wrongful alteration and substitution than
would exist if the devisee himself were allowed to become the wit-
ness; the same evil consequences would follow in the one case as in
The other. If he may sign the name of one subscribing witness, he
may sign the name of both, and in that way become a more potent
factor in the execution and probate of the will than if he were al-
lowed to become a subscribing witness himself. He may not lawfully
take the matter so largely into his own hands. A proper construction
of the statute excludes the devisee from the doing of any act, even
for the subscribing witness, which is essential to a valid subscrip-
tion": Simmons v. Leonard, 91 Tenn. 183, 30 Am. St. Eep. 875, 18
S. W. 280.
In Ee Walker, 110 Cal. 387, 52 Am. St. Eep. 104, 42 Pac. 815, 30
L. E. A. 460 (McFarland, Garoutte, and Van Fleet, JJ., dissenting),
the court held that a witness could sign only in one way, viz., by
affixing his name; and, accordingly, that where a witness, inadvert-
ently signed his name as "C. G. Walker," instead of "C. G. Warren,"
the will was invalidated.
Place on Will of Subscription. — In the absence of an express stat-
utory requirement that the witnesses attach their signatures at the
foot or end of the will, it is immaterial upon what part of a will
the attesting witnesses sign their names; all that is necessary is
38 Coffey's Probate Decisions, Vol. 1.
that the witnesses sign their names upon the paper upon which the
will is written. So the fact that two provisions of a will were writ-
ten after the attestation clause and signatures of the witnesses does
not impair its validity: Kolowski v. Fausz, 103 111. App. 528; Fowler
V. Stagner, 55 Tex. 393, where the clause appointing executors was
appended after the place left for the signatures of the subscribing
witnesses, and they signed after the writing of the whole and with
the intention of attesting the whole will, the part after their signa-
tures as well as that before. Likewise it is of no importance that
the witnesses sign their names in the attestation clause of the will,
and not after: Franks v. Chapman, 64 Tex. 159. And where, at
the conclusion of a will, after the testator's signature, was written
a statement by the testator's wife, in substance that she was satis-
fied with it, and agreed to its provisions, and a subscribing witness
to the will signed his name after the above addendum, instead of
after the will itself, that fact does not invalidate the will: Potts v.
Felton, 70 Ind. 166. Also where one of the witnesses to a will signed
a sworn certificate on the back thereof, stating in substance that on
the date of the will the testator signed, sealed and delivered it for
the consideration and purposes stated therein, as his own proper act
and deed, the attestation of such witness is sufficient: Murray v.
Murphy, 39 Miss. 214.
In states, however, where it is requisite that the witnesses sign the
will at the foot or end thereof, or that they "subscribe" it, a more
rigid rule is applicable. Where a will occupied the first and part of
the second page of a four-page sheet of paper, and, after being signed,
was folded with the fourth page outside and sealed, and was later
presented by the testator to three persons to be by them witnessed as
his will, there is no sufiieient subscribing of the will by the witnesses:
Soward v. Soward, 1 Duvall, 126. For ''between the paper as sub-
scribed by Soward [the testator], and the names of the witnesses,
there is an intervening space of nearly two blank pages. So far from
subscribing their names to the will, it may be said, with much more
propriety and accuracy of speech, that they merely indorsed the paper
enclosing and enveloping the will, without any accompanying writ-
ing or memorandum to indicate the purpose of the indorsement or
showing any connection whatever between the indorsement and the
will. If the paper had been inclosed in a sealed envelope, and the
witnesses had written their names on the envelope, it would have
been quite as near an approximation to the requirements of the stat-
ute. There would also have been just as little room to doubt the
identity of the paper in the one case as in the other. And whilst it
is true that one of the chief objects of requiring the subscription of
the names of the witnesses is to insure identity, it is equally true that
another object is to prevent fraudulent additions to or alterations of
the instrument to be subscribed. But the mode in which these objects
are to be attained is definitely and certainly prescribed by the law,
and it admits the substitution of no other mode."
Estate of Fleishman. 39
Moreover, where, after a testator's will was written, he caused
another paragraph to be written at the end, which clause was of a
testamentary character; and he signed both at the end of the orig-
inal will, and after the new paragraph, but the witnesses signed only
at, the end of the original will, they failed, to subscribe the will, and
the will is invalid: In re Blair's Will, 84 Hun, 581, 32 N. Y. Supp.
845. And where a will was written on the first and third pages of a
double sheet of paper, and at the foot of the first page were the words
' ' continued on the next page, ' ' followed by an attestation clause and
the signatures of the testator and three subscribing witnesses, and it
further appeared from the terms of the will that the matter on the
third page was surplusage, yet the will, not being signed by the
witnesses at the end of the whole writing, is invalid. The testator
intended the clauses on the third page to be part of his will, and it
was not completed to his satisfaction until they were added. What
shall form part of the instrument which the testator intends as his
will must be determined by him: In re Albert's Will, 38 Misc. Kep.
61, 76 N. Y. Supp. 965.
Time of Subscription and Attestation. — It is not necessary, in most
states, that both or all the witnesses to a will should subscribe it at
the same time, but a will attested by a sufficient number of witnesses,
who at different times subscribe their names as witnesses, is well
executed: Johnson v. Johnson, 106 Ind. 475, 55 Am. Eep. 762, 7 N. E.
201; Grubbs v. Marshall (Ky.), 13 S. W. 447; Dewey v. Dewey, 1 Met.
349, 35 Am. Dee. 367; Cravens v. Faulconer, 28 Mo. 19; Eelbeck's
Devisees v. Granberry, 3 N. C. 232. In Virginia, however, the wit-
nesses to a will must attest at the same time, for otherwise ' ' the
testator might be capable of making a will at the time of one of the
attestations, and incapable at the time of the other, and only one
attesting witness could prove the important fact of mental capacity
at either time": Parramore v. Taylor, 11 Gratt. 220.
Presence of Testator — Necessity and Purpose. — It is prerequisite
to the validity of a will that both or all the witnesses thereto sub-
scribe and attest the same in the presence of the testator: Standley
V. Moss, 114 HI. App. 612; Calkins v. Calkins, 216 111. 458, 108 Am.
St. Eep. 233, 75 N. E. 182, 1 L. E. A., N. S., 293; Cravens v. Faul-
coner, 28 Mo. 19; In re Beggans' Will, 68 N. J. Eq. 572, 59 Atl. 874;
Eelbeck's Devisees v. Granberry, 3 N. C. 232; In re Pope's Will,
139 N. C. 484, 111 Am. St. Eep. 813, 52 S. E. 235; Town of Pawtucket
v. Ballon. 15 E. I. 58, 2 Am. St. Eep. 868, 23 Atl. 43. An instruction
that a will to be valid must be attested in the ' ' personal and actual ' '
presence of the testator, is not objectionable, although the adjectives
are unnecessary, as, if attested in his presence, it cannot otherwise
than in his "personal and actual" presence: Greene v. Greene, 145
111. 264, 33 N. E. 941.
"The object of the statute in requiring that a will should be 'at-
tested by the witnesses in the presence of the testator,' so far as the
40 Coffey's Probate Decisions, Vol. 1.
form of the attestation is concerned, was to identify the instrument
as that signed and published by the testator, and to prevent fraud
and imposition in establishing spurious wills, and, at the same time,
to show the person by whom the facts necessary to establish the will
could be proved, when it should be produced for probate": Fatheree
V. Lawrence, 33 Misc. Kep. 585. To the same effect, see Eobinson
V. King, 6 Ga. 639; Calkins v. Calkins, 216 111. 458, 108 Am. St. Eep.
233, 75 N. E. 182, 1 L. E. A., N. S., 393; Arndorff v. Hummer, 12
B. Mon. 619; Watson v. Pipes, 32 Miss. 451; Crovens v. Faulconer,
28 Mo. 19; Mandeville v. Parker, 31 N. J. Eq. 242. A further object
it said to be that the testator may know that the instrument has been
witnessed by the persons whom he has chosen for that purpose:
Orndorff v. Hummer, 12 B. Mon. 619.
Presence Mentally. — From the standpoint of a testator as a
rational being, the performance of the act of subscription and attesta-
tion in his presence necessarily involves his full consciousness at the
time of such performance of the nature and quality of the act: Watson
V. Pipes, 32 Miss. 451; Nock v. Nock's Exrs., 10 Gratt. 106. For
"when the condition of the testator is such that immediately after
the acknowledgment and before the subscription of the will, from sleep
or other cause, he becomes insensible to what is passing around him,
and unconscious of the act of subscribing, which he has a right to
supervise, and thus in fact is unable to determine whether he will or
will not supervise it, the subscription thus made is not in the sense
or within the objects of the statute made in his presence
Although, as far as mere space were concerned, the subscription was
in his presence, we are satisfied that the same reasons which require
that he should have been physically capable by his own exertion or
by the aid of others to see what was going on if he chose to do su,
operate even more powerfully to require that he should have been
conscious of it, and that he should have had the will or mental power
to determine whether he would or would not see it. If this be not
requisite, the subscription by the witnesses would be sufficient, though
made after the death of the testator, or after he had relapsed into
perfect delirium, or had become wholly insensible to external objects
from the near approach of death. And if this were sufficient, the
objects of the statute would be as fully accomplished if the will
were subscribed a year from the testator's death, or at any distance
from his presence during his life": Orndorff v. Hummer, 12 B. Mon.
619. So where at the time of subscription the testator was in bed
and did not speak to the witness while he was in the room, nor did
the witness see him, and while both before and after the subscription
the testator was able to converse and walk about, but it did not
appear that he was sensible or awake at the time thereof, the sub-
scription is insufficient: Griffith's Exr. v. Griffith, 5 B. Mon. 511.
Where the feebleness of mind and body of a testator at the time of
attestation of his will was so great that there was a total prostra-
Estate of Fleishman. 41
tion of bodily and mental powers, the will is void: Spoonemore v.
Cables, 66 Mo. 579. And where a testator declared an instrument
to be his will and requested the witnesses to sign, but before the
second witness had signed died, and he afterward subscribed, the will
is invalid: In re Fish's Will, 88 Hun, 56, 34 N. Y. Supp. 536. In Mc-
Mechen v. McMechen, 17 W. Va. 683, 41 Am. Eep. 682, the court in
substance says: If before the attestation of a will, and while it is
being done, the testator, by reason either of unconsciousness or phys-
ical inability, was unable to dissent from the attestation and to arrest-
or prevent the same by indicating his dissent or disapproval, if he
had desired to do so, the will is not valid. It is not necessary that
the testator shall actually assent to the attestation, but when the
attestation is made he must be in a mental and physicial condition
which will enable him to dissent from the attestation if he desires;
and if his condition is such that he could give such dissent or dis-
approval, if he chose to do so, but does not, his assent will be implied.
In Ambre v. Weishaar, 74 111. 109, it has further been held that an
attestation, even in the same room with the testator, if done in a
clandestine and fraudulent manner, will not be regarded as done in.
his presence.
Presence Physically. — From the standpoint of the testator as a
sentient creature, there must be such contiguity between the tes-
tator and the witnesses at the time of their attestation as in fact or
in the common experience of men will bring the act of the witnesses
in subscribing and attesting to the perception of the testator's
senses. In Healey v. Bartlett, 73 N. H. 110, 59 Atl. 617, the court
says: "When a testator is not prevented by physical infirmities
from seeing and hearing what goes on around him, it is the general,
if not the universal, rule, that his will is attested in his presence
if he understands and is conscious of what the witnesses are doing
when they write their names, and can, if he is so disposed, readily
change his position so that he can see and hear what they do and say.
.... In other words, if he had knowledge of their presence, and can,
if he is so disposed, readily see them write their names, the will is
attested in his presence, even if he does not see them do it, and could
not without some slight physical exertion. It is not necessary that
he should actually see the witnesses for them to be in his presence.
They are in his presence whenever they are so near him that he is
conscious of where they are, and of what they are doing, through any
of his senses, and are where he can readily see them if he is so dis-
posed. The test, therefore, to determine whether the will of a person
who has the use of all his faculties is attested in his presence, is to
inquire whether he understood what the witnesses were doing when
thoy affixed their names to his will, and could, if he had been so
disposed, readily have seen them do it."
In view of the tendency, observable in the foregoing and many
other decisions, to confuse presence with eyesight, the court, in May-
42 Coffey ^s Probate Decisions, Vol. 1.
nard v. Vinton, 59 Mich. 139, 60 Am. Eep. 276, 26 N. W. 401, says:
' ' Courts have held that where the testator is a blind person, still the
witnesses must subscribe in such position and proximity that, had
the testator been possessed of eyesight, he would have seen them;
thus making the test of sight the limit of personal presence. If this
is the correct criterion, then the rule, instead of being uniform, would
be subject to great fluctuations, according to the degree of eyesight
a person has. What would be in the presence of a far-sighted per-
son would be in the absence of a near-sighted one; and what would
be a valid execution of a will for one would be wholly worthless for
another with equal mental capacity; and a person wearing his eye-
glasses or spectacles would have a larger presence than when he laid
them aside. Under such a rule, the oculist would appear to be the
most important witness to establish or destroy the legal attestation
and execution of a will I confess I do not see why the word
'presence' should not be held to convey the idea attached to its or-
dinary signification in the ordinary use of language. It is not a
technical term or scientific word. Why should such a meaning be put
upon this word 'presence' that implies that every person who is called
upon to witness the execution of a will is presumed to be willing
and anxious to foist upon the testator a spurious document, and hence
required to write his name under the eye (if he has one) of the
testator. ' '
Other decisions, while recognizing that an attestation may be good
although the testator is blind or does not choose to look at the act of
attesting, yet hold that to be in the testator's presence the act of
attesting must be in the line of the testator's vision if he could or
cared to look. In Calkins v. Calkins, 216 111. 458, 108 Am. St. Eep.
233, 75 N. E. 182, 1 L. E. A., N. S., 393, the court says: "In the case
of a blind person, his will would be attested in his presence if the
act was brought within his personal knowledge through the medium
of other senses On the other hand, no mere contiguity of the
witnesses will constitute presence if the position of the testator is
such that he cannot possibly see them. An attestation is not in the
presence of the testator, although the witnesses are in the same
room and close to him, if some material obstacle prevents him from
knowing of his own knowledge or perceiving by his senses the act of
attestation. To the same effect, In re Tobin, 196 HI. 484, 63 N. E.
1021; Eiggs V. Eiggs, 135 Mass. 238, 46 Am. Eep. 464; Eeynolds v.
Eeynolds, 1 Spear, 253, 40 Am. Dec. 599. The necessity, in case of a
blind testator, that the act of attesting should be within the percep-
tion of his remaining senses does not appear to be appreciated in the
remarks in Healey v. Bartlett, 73 N. H. 110, 59 Atl. 617, in respect
to the wills of blind testators. In Eay v. Hill, 3 Strob. 297, 49 Am.
Dec. 647, the will of a blind man was sustained, the will having -been
within two feet of the testator at the time the witnesses subscribed
their names, and the court said: "In the ease of a blind man, the
Estate of Fleishman. 43
superintending control which in other cases is exercised by sight
must be transferred to the other senses; and if they are, or may,
at his discretion, be made sensible that the witnesses are subscribing
the same will that he had signed, I should think it ought to suflEice. "
Presence in Case of Clear Vision. — Where a testator is so situated
with respect to the witnesses to his will that by a mere movement of
Ms head, which he had the physical ability to make if he chose, they
would be in his unobstructed sight during the act of attestation, they
are sufficiently in his presence, though he fails to overlook their act of
attestation: Eobinson v. King, 6 Ga. 539; Ambre v. Weishaar, 74 111.
109; In re Storey's Will, 20 111. App. 183, 200; McElfresh v. Guard,
32 Ind. 408; Turner v. Cook, 36 Ind. 129; OrndorfP v. Hummer, 12 B.
Mon. 619; Edelen v. Hardley's Lessee, 7 Har. & J. 61, 16 Am. Dec.
292; Dewey v. Dewey, 1 Met. (Mass.) 349, 35 Am. Dec. 367; Hogan
v. Grosvenor, 10 Met. (Mass.) 54, 43 Am. Dec. 414; In re Allen, 25
Minn. 39; Watson v. Pipes, 32 Miss. 451; Walker v. Walker, 67 Miss.
529, 7 South. 491; Spoonemore v. Cables, 66 Mo. 579; Cornelius v.
Cornelius, 52 N. C. 593; Blanchard's Heirs v. Blanchard 's Heirs, 32
Vt. 62; Eay v. Hill, 3 Strob. 297, 49 Am. Dee. 647. This rule ap-
plies equally where the witnesses were not in the same room with
the testator: Orndorff v. Hummer, 12 B. Mon. 619; Bynum v. Bynum,
33 N. C. 632; In re Meurer's Will, 44 Wis. 392, 28 Am. Rep. 591. If
actual sight were necessary, it would vitiate a will if the testator did
but turn his back or look off, though literally present by being at the
spot where the thing was done: Bynum v. Bynum, 33 N. C. 632.
Presence in Case of Obstructed. Vision. — Where, however, the tes-
tator and witnesses are in the same apartment and fairly contiguous,
but some physical object obstructing the sight lies between them dur-
ing the act of subscribing, the witnesses are not in the testator's
presence, and the attestation is insufficient, although the testator was
physically capable of changing his position or removing the obstruc-
tion had he chose to do so: Robinson v. King, 6 Ga. 539; Brooks v.
Duflfell, 23 Ga. 441; Reed v. Roberts, 26 Ga. 294, 71 Am. Dec. 210;
Calkins v. Calkins, 216 111. 458, 108 Am. St. Rep. 233, 75 N. E. 182,
1 L. R. A., N. S., 293; Ray v. Hill, 3 Strob. 297, 49 Am. Dec. 647.
Yet in Michigan, where the sight was interrupted by the fact that
the first witness stood between the testator and the second witness
while the second was subscribing, the attestation was not thereby
invalidated: Maynard v. Vinton, 59 Mich. 139, 60 Am. Rep. 276, 26
N. W. 401. And the fact that, while subscribing, a witness is so
placed with respect to the testator that the witness' body cuts off
the testator's view of the will, the hand of the witness with which
he was subscribing, and the act of subscription, does not render the
attestation any the less in the presence of the testator: In re Tobin,
196 111. 484, 63 N. E. 1021; Nock v. Nock's Exrs., 10 Gratt. 106;
Baldwin v. Baldwin 's Exr., 81 Va. 405, 59 Am. Rep. 669.
44 Coffey's Probate Decisions, Vol. 1.
Presence in Case of Inability to Look in Direction. — In some de-
cisions it is held that where the testator's ability actually to see the
witnesses to his will subscribe the same is dependent upon his ability
to turn himself, and his ailment so operates as to prevent him from
making this movement, the will is not witnessed in his presence:
Aikin v. Weckerly, 19 Mich. 482; Watson v. Pipes, 32 Miss. 451;
Walker v. Walker, 67 Miss. 529, 7 South. 491; Neil v. Neil, 1 Leigh,
6, the court being equally divided. But in Riggs v. Riggs, 135 Mass.
238, 46 Am. Eep. 464, the court held that where a will was attested
nine feet from a testator's bed ia an adjoining room, and in the
unobstructed line of vision from his bed, but because of injuries
he was unable to turn his head or to look in any direction except up-
ward, it is attested in his presence, for sight is not the only test
of presence. "A man may take note of the presence of another
by the other senses, as hearing or touch. Certainly, if two blind
men are in the same room, talking together, they are in each other 's
presence. If two men are in the same room, conversing together, and
either or both bandage or close their eyes, they do not cease to be in
each other's presence."
Position in Same or Another Room — Presumption Therefrom. — In
order that the attestation may be in the presence of the witnesses, it
is not indispensable that the witnesses should, at the time of their
subscription, be in the same room or even in the same house as the
testator: Robinson v. King, 6 Ga. 539; Ambre v. Weishaar, 74 111.
109; McElfresh v. Guard, 32 Ind. 408; Watson v. Pipes, 32 Miss. 451.
Yet where the witnesses subscribe in a different room from that in
which the testator is and out of the line of his vision, they are not
in his presence: Robinson v. King, 6 Ga. 539, where the witnesses
went onto the piazza to subscribe; Edelen v. Hardley's Lessee, 7
Har. & J. 61, 16 Am. Dec. 292; Boldry v. Parris, 2 Gush. 433; Mande-
ville V. Parker, 31 N. J. Eq. 242, where the will was on a table, behind
the partition of the adjoining room, although the backs of the wit-
nesses sitting at the table and subscribing their names might have
been visible from the position of the testator; Graham v. Graham,.
32 N. C. 219, under same circumstances; Jones v. Tuck, 48 N. C. 202;
Reynolds v. Reynolds, 1 Spear, 253, 40 Am. Dec. 599, where a testator
in bed could have seen, by raising himself on his elbow, which he
had the strength to do, but did not. In Wright v. Lewis, 5 Rich. 1,
212, 55 Am. Dec. 714, where a testator, being in ordinary health,
walked on to a piazza to subscribe his will and sat down at a table
and did it, and then rose and let the witnesses sit there to sign,
meanwhile walking into the room off the piazza from parts of which
he could see the witnesses sign, and after the attestation was done
was found by the witnesses sitting in a place in the room from which
he could not have seen the witnesses when subscribing, the court held
the attestation sufficiently in the testator's presence, and distin-
guished the case from the others on the ground that in them the will
Estate of Fleishman. 45
was taken from the actual presence of the testator to be attested,
while here the will remained exactly where the testator signed it, and
he left the witnesses when he knew they were attesting it.
Moreover, in a number of decisions it is held that where the wit-
nesses are in the same room with the testator at the time of the act
of subscribing, they are prima facie in his presence, and the burden
if on a contestant of the will to rebut that presumption, while if
they are not all in the same room at that time, they are prima facie
out of the presence of the testator, and the burden is on the propo-
nent of the will to establish their mutual presence: Orndorff v. Hum-
mer, 12 B. Mon. 619; Watson v. Pipes, 32 Miss. 451; Mandeville v.
Parker, 31 N. J. Eq. 242; In re Beggan's Will, 68 N. J. Eq. 572, 59
Atl. 874; Bynum v. Bynum, 33 N. C. 632; Jones v. Turk, 48 N. C.
202.
Acknowledgment of Signature as Equivalent to Presence. — In some
states, where the witnesses to a will subscribed the same out of
the presence of the testator, their subsequent acknowledgment of
the signatures to the testator, although done as part of the same
transaction, the signatures being exhibited to the testator, does not
amount to subscription in the testator's presence and is insufficient
to validate the will: Calkins v. Calkins, 216 111. 458, 108 Am. St.
Kep. 223, 75 N. E. 182, 1 L. E. A.. N. S., 393; Chase v. Kittredge, 11
Allen, 49, 87 Am. Dec. 687; Town of Pawtucket v. Ballon, 15 E. I.
58, 2 Am. St. Eep. 868, 23 Atl. 43; In re Downie's Will, 42 Wis. 66.
In other states, however, the subscription and attestation is in such
case, under the circumstances mentioned, sufficiently done in the
testator's presence: Cook v. Winchester, 81 Mich. 581^ 46 N. W. 106,
8 L. E. A. 822; Moore v. Moore's Exr., 8 Graft. 307, the court being
equally divided; Sturdivant v. Birchett, 10 Gratt. 67 (Daniel and
Allen, JJ., dissenting).
Mutual Presence of Witnesses. — In most states, it is not requisite
that the witnesses to a will sign or attest the same in the pres-
ence of each other or of one another, but it is sufficient that they
do so separately: Moore v. Spier, 80 Ala. 129; Appeal of Gaylord,
43 Conn. 82; Flinn v. Owen, 58 111. Ill; In re Hull's Will, 177 Iowa,
738, 89 N. W. 979; Hogan v. Grosvcnor, 10 Met. (Mass.) 54, 43 Am.
Dec. 414; Ela v. Edwards, 16 Gray, 91; Cravens v. Faulconer, 28 Mo.
19; Hoysradt v. Kingman, 22 N. Y. 372; In re Potter's Will, 12 N.
y. Supp. 105; In re Diefenthaler 's Will, 39 Misc. Eep. 765, 80 N.
Y. Supp. 1121; Eaudebaugh v. Shelley, 6 Ohio St. 307; Logue v.
Stanton, 5 Sneed, 97; Simmons v. Leonard, 91 Tenn. 183, 30 Am. St.
Eep. 875, 18 S. W. 280; Parramore v. Taylor, 11 Gratt. 220; Beane
V. Yerby, 12 Gratt. 239; Green v. Crain, 12 Gratt. 252 (Allen, P., and
Daniel, J., dissenting, by reason of peculiar statutory language) ;
In re Smith's Will, 52 Wis. 543, 38 Am. Eep. 756, 8 N. W. 616, 9
N. W. 665. "A requisition that the witnesses shall subscribe in the
presence of each other would be a fruitful source of litigation, would
46 Coffey's Probate Decisions, Vol. 1.
dfcfeat many fair wills, and would, I think, be productive of no
corresponding good. It would very much clog the exercise of the
testamentary power, without throwing around it, so far as I can
perceive, a single additional safeguard. It would render it necessary
to inquire in every case whether the witnesses, when they sub-
scribed the will, were not only in the presence of the testator or in
the range of his vision, but also in the presence of each other or in
the range of each other's vision. It would be questionable whether
range of the vision would be sufficient in regard to the witnesses
inter se, and whether actual sight would not be necessary": Para-
more V. Taylor, 11 Gratt. 220.
In a few states, however, the witnesses must be together in each
other's or one another's presence at the time of their subscription
and attestation of the will, to validate the same: Ludlow v. Ludlow,
36 N. J. Eq. 597; Eoberts v. Welch, 46 Vt. 164. In these latter states,
where all the witnesses to a will were so situated that they might
have seen one another sign, it is not material whether they did in
fact or not: Blanchard's Heirs v. Blanchard's Heirs, 32 Vt. 62; In" re
Claflin's Will, 73 Vt. 129, 87 Am. St. Eep. 693, 50 Atl. 815. But to
constitute presence, it is not sufficient that the witnesses merely were
in the same room with the testator. The room might have been so
large; but the witnesses must have been together in the presence of
one another in such a way and in such a sense that they could see
one another sign; whether they actually looked and saw or not, they
must have been right where they could have seen one another sign:
In re Claflin's Will, 75 Vt. 19, 52 Atl. 1053, 58 L. E. A. 261.
Knowledge of Contents by Witnesses. — It is not essential to the
validity of a will that it should be read over to the witnesses thereto,
nor that they should know its contents: Dickie v. Carter, 42 111. 376;
Brown v. McAlister, 34 Ind. 375; In re Higdon's Will, 6 J. J. Marsh,
444, 22 Am. Dee. 84; Flood v. Pragofif, 79 Ky. 607; Hogan v. Gros-
venor, 10 Met. (Mass.) 64, 43 Am. Dec. 414; Osborn v. Cook, 11 Cush.
532, 59 Am. Dec. 155; Eaudebaugh v. Shelley, 6 Ohio St. 307; Luper
V. Werts, 19 Or. 122, 23 Pac. 850; Skinner v. Lewis, 40 Or. 571, 62
Pac. 523, 67 Pac. 951; Appeal of Linton, 104 Pa. 228, relating to a
will of a married woman; Simmons v. Leonard, 91 Tenn. 183, 30 Am.
St. Eep. 875, 18 S. W. 280.
In order to validate his attestation to a will, a witness thereto
need not know the testamentary capacity af the testator: Huff v.
Huff, 41 Ga. 696. It is error to instruct the jury that prior to the
signing of a will by the witnesses thereto, each of the witnesses must
know that the other was to be an attesting witness, and each must
know that the other had been requested to act in that capacity: Savage
V. Bowen, 103 Va. 540, 49 S. E. 668.
It is not requisite to the validity of a will that the witnesses
thereto attest to exactly the same act or declaration on the part of
Estate op Fleishman. 47
the testator, indicating his acknowledgment of the instrument: In re
Hull's Will, 117 Iowa, 738, 89 N. W. 979.
Attestation Clause. — "Where it is customary to place at the end of
a will, before the signatures of the witnesses thereto, an attestation
clause setting forth with more or less completeness the performance
of the statutory requisites to its due execution and witnessing, yet
the total absence of such clause, or of any word of attestation, does
not invalidate the will: Calkins v. Calkins, 216 111. 458, 108 Am. St.
Rep. 233, 75 N. E. 182, 1 L. R. A., N. S., 393; In re Barry's Will, 219
III. 391, 76 N. E. 577; Barricklow v. Stewart, 163 Ind. 438, 72 N. E.
128; In re Hull's Will, 117 Iowa, 738, 89 N. W. 979; Ela v. Edwards,
16 Gray, 91; Berberet v. Berberet, 131 Mo. 399, 52 Am. St. Rep. 634,
33 S. W. 61; Williams v. Miles, 68 Neb. 463, 110 Am. St. Rep. 431, 94
N. W. 705, 96 N. W. 151; In re Look, 54 Hun, 635, 7 N. W. Supp. 298;
affirmed without opinion, 125 N. Y. 762, 27 N. E. 408; In re Aker's
Will, 74 App. Div. 461, 77 N. Y. Supp. 643; In re Cornell's Will, 89
App. Div. 412, 85 N. Y. Supp. 920; Webb v. Dye, 18 W. Va. 376.
Where such a clause is used, the particular form of completeness there-
of is immaterial to the validity of the will: Keely v. Moore, 196 U.
S. 38, 25 Sup. Ct. 169, 49 L. Ed. 376, affirming 22 App. Dist. Col.
9; Robinson v. Brewster, 140 111. 649, 33 Am. St. Rep. 265, 30 N. E.
638; Barricklow v. Stewart, 163 Ind. 438, 72 N. E. 128; In re Hull's
Will, 117 Iowa, 738, 89 N. W. 979; Osborn v. Cook, 11 Cush. 532, 59
Am. Dec. 155; Chase v. Kittredge, 11 Allen, 49, 89 Am. Dec. 687;
Fatheree v. Lawrence, 33 Miss. 585, Chaffee v. Baptist Missionary
Convention, 10 Paige, 85, 40 Am. Dec. 225; Jackson v. Jackson, 39
N. Y. 163; Franks v. Chapman, 64 Tex. 159. The same rules hold
true with respect to an attestation clause to a codicil: In re Crane,
68 App. Div. 355, 74 N. Y. Supp. 88.
So where the attestation clause of a will consisted merely of the
word "witness" (Osborn v. Cook, 11 Cush. 532, 59 Am. Dec. 155;
Chase v. Kittredge, 11 Allen, 49, 87 App. Div. 687; In re Aker's Will,
74 App. Div. 461, 77 N. Y. Supp. 643), or "attest" (Robinson v.
Brewster, 140 111. 649, 33 Am. St. Rep. 265, 30 N. E. 683), or "test"
(Fatheree v. Lawrence, 33 Miss. 585), written before the names of
the witnesses, it is sufficient. Where at the end of a will, below
the testator's subscription were subscribed the phrases "Written by
S. S. Ashton," and "Witness Anna R. Ashton," and it appeared
that the first witness was the draftsman of the will and w-rote the
words "Written by S. S. Ashton for" on the will, intending to add
the testatrix's name in case she was unable to write her: own, but
the testatrix, being able to write it, scratched out the word "for"
and left the remainder as a subscription and attestation of the
will, it is sufficient: P()lh)ck v. Glassel, 2 Gratt. 439. An attestation
clause in the form of a formal certificate of acknowledgment of the
testator's signature, the witness being one authorized to take acknowl-
edgments, has also been sustained: In re Hull's Will, 117 Iowa, 738,
48 Coffey's Probate Decisions, Vol. 1.
89 N. W. 979; Franks v. Chapman, 64 Tex. 159. Likewise an at-
testation clause stating in substance that on the date of the will the
testator signed, sealed and delivered it for the consideration and
purposes stated therein as his own proper act and deed does not in-
validate the attestation, as such superfluous language cannot invali-
date the witness' signature thereto: Murray v. Murphy, 39 Miss. 214.
Furthermore, the use of one clause in one form signed by two wit-
nesses, and of another clause in another form signed by the third, does
not (three witnesses being necessary) render the attestation of the
will insufficient: Keeley v. Moore, 196 U. S. 38, 25 Sup. Ct. 169, 49
L. Ed. 376, affirming 22 App. Dist. Col. 9.
But in the early case of Withinton v. Withinton, 7 Mo. 589, where
a paper offered as a will was in form a deed to take effect at the
grantor's death, and had attached to it a certificate of a notary,
wherein the notary acknowledged his signature and his act, and that
he did it for the purposes in the writing set forth, which certificate
was signed by the notary, the court held that the notary 's signature
cannot, for the purpose of sustaining the writing as a will, be con-
: sidered the signature of an attesting witness, since the function of a
witness to a will is not only to prove that the instrument was ex-
ecuted, but that the testator was of sound and disposing mind, while
here the notary certified merely to the due execution and not to the
mental capacity of the grantor.
Order of Execution by Testator and by Witness. — While the gen-
eral and regular course in the attestation of a will is for the testa-
tor first to execute the will on his part and then call on the wit-
nesses to attest the execution by subscribing their names (O'Brien v.
Gallagher, 25 Conn. 229), yet in some states the fact that one or more
of the witnesses subscribe their names before the testator signs or
acknowledges the will does not, where the testator afterward, as part
of the same transaction and in the continued presence of the wit-
nesses, himself signs or acknowledges it, invalidate the will: O'Brien
v Gallagher, 25 Conn. 229; Swift v. Wiley, 1 B. Mon. 114; Sechrest
V. Edwards, 4 Met. (Ky.) 163; Cutler v. Cutler, 130 N. C. 1, 89 Am.
St. Rep. 854, 40 S. E. 689, 57 L. R. A. 209; Rosser v. Franklin, 6
Gratt. 1, 52 Am. Dec. 97; Parramore v. Taylor, 11 Gratt. 220; Beane
V Yerby, 12 Gratt. 239. Compare, however, Chisholm's Heirs v. Ben,
7 B. Mon. 408. In Swift v. Wiley, 1 B. Mon. 114, the court said:
' ' As all three of the subscribing witnesses were present at the final
publication of the will, attested the fact of signing and publishing
by the testator, and either then subscribed or acknowledged the sub-
scription of their respective names, on the same paper, so as to in-
sure the identification of the will as then published and attested,
every purpose of the statute has been fulfilled, and not even a let-
ter of it violated or disregarded. To resubscribe the names ....
would have been a superfluous and puerile act of mechanical repeti-
tion, not necessary for identification; because they had once sub-
Estate op Fleishman. 49
scribed the same paper in the presence and at the request of the
testator, and which fact was recognized by him, as well as by tliem-
sflves, after his own name had been subscribed, and when the docu-
ment, thus recognized and identified, was finally and conclusively
published as his will; nor can we perceive any other end of either
utility or security that could have been promoted by again subscrib-
ing names already sutficientlj^ subscribed."
Moreover, in Grigg v. Williams, 51 jST. C. 518, the court held that
where after one of the witnesses to a will had subscribed his name
the testator inserted the name of an additional executor as part of
the same transaction, the attestation by such witness was good.
In other states, however, where one or more of the necessary wit-
nesses to a will subscribes it before the testator subscribes or ac-
knowledges the same to the witnesses, the attestation of the will is
iusuflficient, although the testator afterward, as part of the same
transaction, signs or acknowledges the will: Duffie v. Corridon, 40 Ga.
122, where the testator signed the next day in the presence of the
witness who had signed the previous day; Brooks v. Woodson, 87
Ga. 379, 13 S. E. 712, 14 L. E. A. 160; Chase v. Kittredge, 11 Allen,
49, 87 Am. Dec. 687, where one of the witness signed in the absence
of and before the testator, and the witness afterward acknowledged
his signature to the testator after the testator had signed in his
presence; Lacey v. Dobbs, 63 N. J. Eq. 325, 92 Am. St. Eep. 667,
50 Atl. 497, 55 L. E. A. 580, overruling Mundy v. Mundy, 15 N. J.
Eq. 290, to the contrary; Baskin v. Baskin, 36 N. Y. 416; Jackson
V. Jackson, 39 N. Y. 153; Sisters of Charity v. Kelly, 67 N. Y. 409;
In re Williams' Will, 2 Conn. Sur. 579, 15 N. Y. Supp. 828, judg-
ment affirmed, 64 Hun, 636, 19 N. Y. Supp. 613; Simmons v. Leon-
ard, 91 Tenn. 183, 30 Am. St. Eep. 875, 18 S. W. 280. See, also,
In re Irvine's Estate, 206 Pa. 1, 55 Atl. 795, holding that the Pennsyl-
vania statute of 1855 governing the execution of a will disposing of
property to charitable or religious uses, presupposes the existence
of a writing signed by the testator at the time of attestation. In
support of this doctrine, the court in Brooks v. Woodson, 87 Ga. 379,
13 S. E. 712, 14 L. E. A. 160, declared that the signature of the
testator is the principal, if not the only, matter to which the at-
testation applies, and such being the case, the attestation is insuf-
ficient if made a moment before the signing by the testator, as well
as though made a day before. "To witness a future event is equally
impossible, whether it occur the next moment or the next week."
And in Jackson v. Jackson, 39 N. Y. 153, the courts says: "Their
signatures do not attest the signing by the testator, if they are
placed there before the will is signed by him. For some period, longer
or shorter, as the case may be, those signatures attest no execution —
they certify what is not true Execution and the attestation
thereof bear a plain relation to each other in point of time, in the
good sense and common apprehension of everyone, and the statute
prescribing the requisite formalities to a valid execution and authen-
Prob. Dec, Vol. I — 4
50 Coffey's Probate Decisions, Vol. 1.
tication plainly contemplates that the acts of the witnesses shall at-
test the signing and declaration of the testator as a fact accom-
plished. ' '
Similarly in Reed v. Watson, 27 Ind. 443, where a testator pro-
cured the signature of a witness to his will before he signed it, and
then took the will away with him and afterward attached his own
signature without the knowledge of such witness, the court held the
attestation insufficient.
In Re Phillips, 98 N. Y. 267, the court, however, held that the
statute of wills is complied with, if the declaration that the instru-
ment is a will and the acknowledgment of the testator 's signature
are simultaneous with the signature of the subscribing witness, espe-
cially if these acts are done before the witness has completed his
signature and all on the same occasion.
Order of Publication and Other Requisites. — It is sufficient in those
states where publication is essential to the validity of a will that
it be done as part of the transaction of witnessing the will, whether
before or after the signing or acknowledgment of the will by the
testator to the witnesses: In re Johnson's Estate, 57 Cal. 529, where
the publication was made immediately after a witness finished sub-
scribing; Jackson v. Jackson, 39 N. Y. 153, where publication was
made immediately before the subscription of the will by the testator;
In re Look's Will, 5 N. Y. Supp. 50; In re Look, 54 Hun, 635, 7 N.
Y. Supp. 298, judgment affirmed, 125 N. Y. 762, 27 N. E. 408, holding
that publication must be made at the time of subscription or ac-
knowledgment by the testator; In re Dale's Will, 56 Hun, 169, 9
N. Y. Supp. 396, affirmed without opinion, 134 N. Y. 614, 32 N. E.
649; In re Williams' Will, 2 Conn. Sur. 579, 15 N, Y. Supp. 828,
judgment affirmed, 64 Hun, 636, 19 N. Y. Supp. 613, where publica-
tion was made immediately before subscription by the testator; In
re Carll's Will, 38 Misc. Rep. 471, 77 N. Y. Supp. 1036. It is, how-
ever, insufficient to publish the will to one of the witnesses thereto
several weeks after the attestation by the witness: In re Dale's Will,
56 Hun, 169, 9 N. Y. Supp. 396, affirmed without opinion, 134 N. Y.
614, 32 N. E. 649.
Order of Request to Witnesses and Other Requisites. — The fact that
a testatrix requested the witnesses to her will to subscribe as such
before she subscribed it does not impair its validity, where they
did not actually subscribe until after the testatrix: In re Williams'
Will, 2 Conn. Sur. 579, 15 N. Y. Supp. 828, 64 Hun, 636, 19 N. Y.
Supp. 613.
Mode of Attestation. — ' ' The code provides no special formalities
about the witnesses to a will. It is sufficient if they attest and
subscribe the will in the presence of the testator": Huff v. Huff,
41 Ga. 696. The law looks to the substance of the transaction, and
requires only evidence that all the safeguards against improvidence
Estate of Fleishman. 51
and fraud, prescribed by statute, have been substantially observed:
Lewis V. Lewis, UN. Y. 220, 13 Barb. 17.
Mode of Request to Witnesses and Publication. — It is proper and
sufficient for a testator to publish his will and to request the witnesses
thereto to attest, in tne same sentence, or by the same acts, or in
response to one question by one of the witnesses. "These acts are
distinct in their nature or quality, but the performance may be joint
or connected": Coffin v. Coffin, 23 N. Y. 9, 80 Am. Dec. 235; In re
Kane's Will, 20 N. Y. Supp. 123; In re Menge's Will, 13 Misc. Eep.
553, 35 N. Y. Supp. 493; In re Murphy's Will, 15 Misc. Eep. 208, 37
N. Y. Supp. 223.
The Testimony of the Attesting Witnesses, — Where a will is regu-
lar on its face, its due execution may ordinarily be proved by the
uncontroverted testimony of one of the witnesses thereto: Griffith's
Exr. v. Griffith, 5 B. Mon. 511; Hight v. Wilson, 1 Call. 94, ] L. Ed.
51; Dean v. Heirs of Dean, 27 Vt. 746. In Illinois, however, it is
requisite that the testimony of all the witnesses shall be taken to
the point that the testator was of sound mind and memory at the
time of the execution of the will: Allison v. Allison, 46 111. 61, 92
Am. Dec. 237.
Right to Put in Evidence Outside Testimony of Witnesses. — Before
any evidence other than the testimony of the witnesses to a will
may be produced to prove its due execution, all the witnesses must
first be examined, or else their absence accounted for and their sig-
natures proved: Tudor v. Tudor, 17 B. Mon. 383, relating to a codicil;
In re Moore's Will, 109 App. Div. 762, N. Y. Supp. 729; Alexander
V. Beadle, 7 Colo. 126. No controlling force, however, is to be given
to the testimony of the witnesses, and it is liable to be rebutted by
other evidence, either direct or circumstantial; yet their direct par-
ticipation in the transaction gives great weight to their testimony:
Orser v. Orser, 24 N. Y. 51; Webb v. Dye, 18 W. Va. 376. Thus
where the testimony of one or even all of the witnesses to a will
is adverse to its valid execution, it may be sustained by other evi-
dence adequate to show its due execution: Griffith's Exr. v. Griffith,
5 B. Mon. 511; Jauncey v. Thorne, 2 Barb. Ch. 40; In re Carll's Will,
38 Misc. Eep. 471, 77 N. Y. Supp. 1036; In re Moore's Will, 109
App. Div. 762, 96 N. Y. Supp. 729; Skinner v. Lewis, 40 Or. 571,
62 Pac. 523, 67 Pac. 951; Hight v. Wilson, 1 Dall. 94, 1 L. Ed. 51;
Rose V. Allen, 1 Colo. 23; Alexander v. Beadle, 7 Colo. 126; Simmons
V, Leonard, 91 Tenn. 183, 30 Am. St. Eep. 875, 18 S. W. 280; Dean
v. Heirs of Dean, 27 Vt. 746; In re Claflin 's Will, 73 Vt. 129, 87
Am. St. Eep. 693, 50 Atl. 815; Webb v. Dye, 18 W. Va. 376; In re
Meurer's Will, 44 Wis. 392, 28 Am. Eep. 591. So where a witness
to a will testifies that his signature thereto is not genuine, and that
he knew nothing of its execution, proof of his handwriting is ad-
missible to controvert his testimony: Jones v. Arterburn, 11 Humph,
97. Thus a will may be proved by other witnesses than the sub-
52 Coffey's Probate Decisions, Vol. 1.
scribing witnesses, notwithstanding one of them gives testimony that
the testator was unconscious at the time of attestation: Cheatham
V. Hatcher, 30 Gratt. 56, 32 Am. Eep. 650. Likewise where the wit-
nesses to a will disagree as to the material facts in its execution,
that fact alone is not enough to defeat the will: In re Bedell's Will,
2 Conn. Sur. 328, 12 N. Y. Supp. 96; In re Meurer's Will, 44 Wis.
392, 28 Am. Eep. 591. And where the witnesses to a will were un-
able to write, and their hands having been guided by the draftsman
of the will while writing their respective signatures, were unable to
identify them, and expressed the opinion on hearing the will read
that certain of its provisions had been changed since it was read to
Ihem at the time of its execution, the testimony of the draftsman
i)f the will is properly admitted to sustain it: Montgomery v. Perkins,
2 Met. (Ky.) 448, 74 Am. Dec. 419. Furthermore, where the wit-
nesses to a will when called as witnesses cannot remember the facts
respecting the execution of the will, it may nevertheless be supported
by other evidence, including the presumptions of law proi^erly ap-
plicable: Hobart v. Hobart, 154 111. 610, 45 Am. St. Eep. 151, 39 N.
E. 581; In re Hull's Will, 117 Iowa, 738, 89 N. W. 979; Jauncey v.
Thorne, 2 Barb. Ch. 40, 59; Orser v. Orser, 24 N. Y. 51; Peck v.
Cary, 27 N. Y. 9, 84 Am. Dec. 220, 38 Barb. 77; Eugg v. Eugg, 83
N. Y. 592; In re Kane's Will, 20 N. Y. Supp. 123; Skinner v. Lewis,
40 Or. 571, 62 Pac. 523, 67 Pac. 951.
In Illinois, however, where a petition for probate of a will is first
heard in a probate court, the evidence in that court is properly con-
fined to that of the attesting witnesses, but if the probate is there
denied and the matter goes to the circuit court, on the hearing in
the circuit court the proponent of the will is not limited to nor
bound by the testimony of the witnesses to the will, but may right-
fully resort to any relevant and competent evidence to sustain the
will: Gould v. Chicago Theological Seminary, 189 111. 282, 59 N. E.
536; Webster v. Yorty, 194 111. 408, 62 N. E. 907; In re Tobin, 196
111. 484, 63 N. E. 1021; In re Barry's Will, 219 111. 391, 76 N. E. 577.
Opinion of Witness as Evidence. — ' ' The opinions of subscribing wit-
nesses as to the condition of the testator's mind, at the time of the
execution of the will, may be received in evidence, when the facts
are stated on which such opinions are founded, though such wit-
nesses do not fall within the class known to the law as experts.
In such cases, however, the evidence on which most reliance should
be placed are the facts proved, rather than the opinions expressed
by the witnesses": Cilley v. Cilley, 34 Me. 162. Also Stirling v.
Stirling, 64 Md. 138, 21 Atl. 273. In Illinois such opinion must,
however, be taken in every case of probate: Allison v. Allison, 46
111. 61, 92 Am. Dec. 237. Where a witness to a will expresses an
opinion adverse to the testamentary capacity of the testator, that
fact is not necessarily fatal to the will, but as the witness prima
facie attests the testamentary capacity of the testator by becoming
a witness, his adverse testimony will be received with suspicion:
Estate of Fleishman. 53
Odenwaelder v. Schorr, 8 Mo. App. 458; Mays v. Mays, 114 Mo. 536,
21 S. W. 921.
Declarations of Witness as Evidence. — Where the variant statements
of a witness to a will are put in evidence to impeach him, they can-
not, be used as substantive evidence of the facts stated: Stirling v.
Stirling, 64 Md. 138, 21 Atl. 273; In re Moore's Will, 109 App. Div.
762, 96 N. Y. Supp. 729; In re Claflin 's Will, 75 Vt. 19, 52 Atl. 1053,
58 L. E. A. 261.
The Attestation Clause as Evidence. — Where, on a proceeding where-
in the validity of a will is at issue, the witnesses thereto are pro-
duced, the attestation clause may be used as a means of refresh-
ing the memories of the attesting witnesses in respect to the formali-
ties actually observed in the execution of the will to which it is
attached: In re Look, 54 Hun, 635, 7 N. Y. Supp. 298, affirmed with-
out opinion, 125 N. Y. 762, 27 N. E. 408. Moreover, where there is a
dispute as to what occurred at the time of the execution of a will,
and the will is on its face in due form, the recitals of the attesta-
tion clause must be given some weight in determining the dispute:
In re Menge 's Will, 13 Misc. Kep. 553, 35 N. Y. Supp. 493.
Where, by reason of the failure of the memories of the subscribing
witness to a will, their insanity, death, or absence beyond the reach of
process, their testimony cannot be obtained, proof of their signatures
subscribed to the attestation clause renders the recitals of that clause
prima facie evidence of the observance in the execution of such will
of all the formalities set forth in such clause. It is not, however,
conclusive evidence of the due execution of the will, but is subject
t(< be rebutted by evidence showing that the actual execution was
insufficient: In re Hull's Will, 117 Iowa, 738, 89 N. W. 979; Mundy
V. Mundy, 15 N. J. Eq. 290; Tappen v. Davidson, 27 N. J. Eq. 459;
Allaire v. Allaire, 37 N. J. L. 312, 39 N. J. L. 113; Mandeville v.
Parker, 31 N. J. Eq. 242; Chaffee v. Baptist Missionary Convention,
10 Paige, 85, 40 Am. Dec. 225; In re Kane's Will, 20 N. Y. Supp.
123; In re Jones' Will, 85 N. Y. Supp. 294, holding that this pre-
sumption arises even though the will was of recent date; Skinner v.
Lewis, 40 Or. 571, 62 Pac. 523, 67 Pac. 951; Appeal of Linton, 104
Pa. 228; In re Claflin 's Will, 73 Vt. 129, 87 Am. St. Rep. 639, 50
Atl. 815; In re Meurer's Will, 44 Wis. 392, 28 Am. Rep. 591, holding
that want of recollection on the part of the witnesses to a will
would not defeat it, especially where there was a complete attestation
clause. Because of its effect as evidence, an attestation clause to a
will, comprising a statement of all that is necessary to the execution
of the instrument as a will, is therefore in the highest degree useful:
Allaire v. Allaire, 37 N. J. L. 312, 39 N. J. L. 113. For the purpose
of rebutting the presumption thus arising from the attestation clause,
oral evidence is admissible: Fleming v. Morrison, 187 Mass. 120, 105
Am. St. Rep. 386, 72 N. E. 499; Pollock v. Glassel, 2 Gratt. 439.
54 Coffey's Probate Decisions, Vol. 1.
In Pennsylvania it has been held that where it is shown on the
probate of a will that one of the witnesses thereto is dead and that
his signature to the will is genuine, that proof is equivalent to posi-
tive proof by one witness of every fact stated in the attesting clause:
Appeal of Linton, 104 Pa. 228. In New York, however, it has been
held that it is clear that the attesting clause is not equivalent to
the testimony of a living witness, and cannot stand as against the
positive testimony of a witness to the contrary. "If equivalent, it
should have equal weight as against conflicting testimony, a force
which cannot reasonably be attributed to it. The statute makes it
evidence; but it is evidence of a secondary and inferior nature, which
is received from the nature of the case": Orser v. Orser, 24 N. Y.
51; Lewis v. Lewis, 11 N. Y. 220, 13 Barb. 17.
Where a will has no attestation clause, or if the attestation clause
does not recite the performance of all the requisites to the making
of a valid will, and the testimony of the witnesses to the will can-
not be obtained, in some states the burden is on the proponent of
the will to show, by the circumstances of the case or other proof if
necessary, the observance of all the requisites to the valid execution
of a will or of those the performance of which is not recited in the
attestation clause, as the case may be: Ela v. Edwards, 16 Gray, 91;
Mundy v. Mundy, 15 N. J. Eq. 290; Allaire v. Allaire, 37 N. J. L.
312, 39 N. J. L. 113; Ludlow v. Ludlow, 36 N. J. Eq. 597; In re
Breining's Estate, 68 N. J. Eq. 553, 59 Atl. 561; In re Beggans' Will,
68 N. J. Eq. 572, 59 Atl. 874; Chaffee v. Baptist Missionary Conven-
tion, 10 Paige, 85, 40 Am. Dec. 225. In other states, however, where
a will is regular on its face, the performance of the necessary
requisites to its due execution will, in the absence of an attestation
clause, be implied from proof of the signatures of the witnesses
thereto: Fatheree v. Lawrence, 33 Miss. 585; Nock v. Nock's Exrs.,
10 Gratt. 106. See, also, Webb v. Dye, 18 W. Va. 376, 388.
In the Matter of the Estate of JOHN S. DOE.
[No. 14,365; decided November 27, 1905.]
Wills — Construction as to Intestacy. — Of the two modes of inter-
preting a will, that is to be preferred which will prevent a total
intestacy; but if the legal effect of the expressed intent of a tes-
tator is intestacy, it will be presumed that he designed that result.
Construction of Statute Adopted from Another State. — The rule
that a statute adopted from another state will be given the con-
struction placed upon it by the courts of that state prior to its
adoption, is not absolute, especially where there has been a single
Estate of Doe. 55
decision which has since been questioned or repudiated in the for-
eign state.
Trusts — Construction as to Duration. — In determining the duration
of a trust term, the inherent character of the trust and its essential
limitations may form an element in the construction to be given to
the language creating it.
Trusts — On Whose Lives Term may be Limited. — A trust created
under subdivision 3 of section 857 of the Code of Civil Procedure,
to receive the rents and profits of real property, and apply them to
the use of designated beneficiaries, may be limited on lives of per-
sons other than the beneficiaries.
Trusts — Duration Limited by Purposes. — A trust in real property
to pay the rents and profits thereof to designated beneficiaries can-
not endure longer than the lives of the beneficiaries, where, upon
the assumption that they will outlive the trusts, the lives of the lat-
ter are made the measure of the trust.
Trusts — Whether Bare and Void. — A devise "in trust" for others
is not invalid as a bare trust, when it imposes on the trustee the
duty of paying the rents and profits of the property to the benefi-
ciaries.
Trusts — Effect of Partial Invalidity, — An invalid provision in a
Irust, which is not an integral or essential part of the trust scheme,
^vill not necessarily vitiate the other provisions.
Trusts — Unlawful Accumulations. — A direction to trustees to pay
taxes, street assessments, and other charges and expenses incurred
in improvements, out of the income of the trust estate, does not pro-
vide for an unlawful accumulation.
Trusts — Unlawful Accumulations. — A provision in a trust for re-
taining the income of the estate and paying it over to the benefi-
ciaries annually is not void.
Wills — Devise on Termination of Trust. — A devise to the widow
and daughter of the testator, one-half to the daughter absolutely
and the other half to the widow for life with remainder to the daugh-
ter, is valid, regardless of the validity of a devise in trust of an
intermediate or precedent estate.
Wills — Creation of Vested Remainder. — The devise in this case to
the widow and daughter of the testator upon the "termination of
the trust" is held to be a devise of a vested remainder, postponed
in possession merely.
Trusts — Purpose and Validity. — If a testator, after making specific
gifts, devises the residue of his estate to trustees "for" certain
beneficiaries, and elsewhere in the will provides that the executors,
who are also named as trustees of the trust, shall pay to the per-
sons designated as those "for" whom the property is held, a speci-
fied sum per month, the payment of that sum constitutes a trust pur-
56 Coffey's Probate Decisions, Vol. 1.
pose of the trust of the residuum, and the latter is not void as a
naked trust.
Wills — Acceleration of Devise When Trust Invalid. — If a devise
is limited to take effect upon the termination of a trust and the
trust proves invalid, the devisees come immediately into their own.
Trusts — Liberal Interpretation of Statutes. — Provisions of the codes
in respect to testamentary trusts should be construed liberally.
Application for final distribution.
Garret W. McEnerney and Heller & Powers, for the sur-
viving executor and trustee, Bartlett Doe, and for other con-
tingent devisees, applicants.
The trust of specific property is not created to endure
for an illegal period. If the wife and daughter predecease
the trustees, the trust terminates on the death of the bene-
ficiaries : Civ. Code, sees. 871, 2279 ; Crooke v. County of
Kings, 97 N. Y. 421. Even if a trust were dependent upon
the lives of the trustees, the trust would be valid : Bailey v.
Bailey, 97 N. Y. 467 ; Crooke v. County of Kings, 97 N. Y.
421, both cases overruling Downing v. Marshall, 23 N. Y.
366, 377, 80 Am. Dec. 290. The construction given a stat-
ute at the time of its adoption from a foreign state will not
be followed where that construction has afterward been held
erroneous: Goble v. Simeral, 67 Neb. 276, 93 N. W. 236;
Whitney v. Fox, 166 U. S. 637, 17 Sup. Ct. 713, 41 L. Ed.
1145; Iron Works v. White, 31 Colo. 82, 71 Pac. 384. The
case is distinguishable from that of Wittfield v. Forster (124
Cal. 418, 57 Pac. 219), since trust purposes are here de-
clared. If there be directions for an unlawful accumula-
tion of income, this does not invalidate the trust of specific
property: Civ. Code. sec. 733. A provision for the annual
payment of income is not void as an unlawful accumula-
tion : Estate of Steele, 124 Cal. 533, 541, 57 Pac. 564 ; In re
Howell's Estate, 180 Pa. 515, 520, 37 Atl. 181; Livingstone
V. Tucker, 107 N. Y. 549, 552, 14 N. E. 443. Thus annuities
are valid under the New York law corresponding to our code
section: Alvord v. Sherwood, 21 i\Iisc. Rep. 354, 47 N. Y.
Supp. 749 ; Garvey v. Trust Co., 29 App. Div. 513, 52 X. Y.
Supp. 260; Nichols v. Nichols, 42 Misc. Rep. 381, 86 N. Y..
Estate of Doe. 57
Supp. 719; In re Tracy, 87 App. Div. 215, 83 N. Y. Supp.
1049 ; Provost v. Provost, 70 N. Y. 144 ; Townshend v. From-
mer, 125 N. Y. 446, 26 N. E. 805; In re Foster's Estate, 37
Misc. Rep. 581, 75 N. Y. Supp. 1067; Stewart v. Phelps, 71
App. Div. 91, 75 N. Y. Supp. 526; Salisbury v. Slack, 160
N. Y. 278, 54 N. E. 741; Cochrane v. Schell, 140 N. Y. 516,.
35 N. E. 971 ; Hooker v. Hooker, 41 App. 235, 58 N. Y. Supp.
536; Horsfield v. Black, 40 App. Div. 264, 57 N. Y. Supp.
1006 ; Vernon v. Vernon, 53 N. Y. 351. The trust of specifie.
property is not invalid under the doctrine of Carpenter v.
Cook (132 Cal. 621, 84 Am. St. Rep. 118, 64 Pac. 997), as,
unlike that case, the trust here does not make the payment
of the expenses which are claimed to be accumulations a trust
purpose. Even if the trust of specific property were invalid,
the devise in remainder would be unaffected: Civ. Code, sees.
741, 742, 767. The estate of the mother and daughter in the
property covered by the specific trust is a vested and not
a contingent remainder: Civ. Code, sees. 689, 690, 693-695.
Even if the trust of the specific property Avere void, the
remainder of mother and daughter would be accelerated
merely and not defeated: Underbill on Wills, sec. 878; 24
Am. & Eng. Ency. of Law, 2d ed., 418 ; Hamlin v. Mans-
field, 88 Me. 131, 137, 138, 33 Atl. 788; Marvin v. Ledwith,
111 111. 151; Fox V. Rumery, 68 Me. 121; Jull v. Jacobs,
L. R. 3 Ch. D. 703, 710; Everett v. Croskey, 92 Iowa, 333,
335, 336, 60 N. W. 732; Key v. Weathersbee, 43 S. C. 414,
49 Am. St. Rep. 846, 21 S. E. 324; Norris v. Beyea. 13 N.
Y. 273. Even if the doctrine of acceleration were not ap-
plicable, and if the trust of specific property were void, the
estate devised would fall into the trust of the residuum :
Civ. Code, sec. 1332; Estate of Upham, 127 Cal. 90, 92. 59
Pac. 315; Matter of Benson, 96 N. Y. 499, 509, 48 Am. Rep.
646. If the doctrine of acceleration were not applicable, and
the trusts, both of the specific property and of the residuum,
were invalid, the testator would be held merely to have died
intestate as to the intermediate estate, but not as to the es-
tate in remainder to the mother and daughter.
The trust of the residuum is valid. The payment of one
thousand dollars per month provided for in the eiglith para-
58 Coffey's Probate Decisions, Vol. 1.
graph of the codicil gives the trust an active purpose: Teel
V. Hilton, 21 R. I. 227, 42 Atl. 1111; Matter of Dewey, 153
N. Y. 63, 46 N. E. 1039; In re Schneider, 71 Hun, 62, 24
N. y. Supp. 540 ; United States Trust Co. v. Maresi, 33 Misc.
Rep. 539, 68 N. Y. Supp. 918. The trust is valid and covers
all of the property, even though the estate covered by it
be more than sufficient to pay the thousand dollars per
month: Estate of Pichoir, 139 Cal. 682, 688, 73 Pac. 606;
Cochrane v. Schell, 140 N. Y. 516, 35 N. E. 971. Even if
the trust of the residuum were invalid, the testator did not
die intestate as to the property embraced within it. Either
the remainders to mother and daughter would be acceler-
ated, or the testator would die intestate as to the interme-
diate estate only, which intermediate estate terminates upon
the arrival of the daughter at the age of eighteen years.
Charles S. Wheeler and J. F. Bowie, for Eleanor H. Stet-
son, respondent and counter-applicant.
In construing the will the court must arrive at the inten-
tion of the testator without reference to the validity of such
intention. The rule that testacy is preferred to intestacy
has reference only to cases of ambiguity: Civ. Code, sees.
1317, 1318, 1326; Estate of Young, 123 Cal. 343, 55 Pac.
1011; Cunliffe v. Brancker, L. R. 3 Ch. D. 399; Speakman
V. Speakman, 8 Hare, 185; Schouler, on Wills, sec. 470; 3
Jarman on Wills, 5th Am. ed., 706; Gray's Rule Against
Perpetuities, sec. 629. The direction for payment of the
income annually by the trustees to the executors is not a
trust purpose, but a mere power: Estate of Sanford, 136
Cal. 97, 68 Pac. 494. That the testator misapprehended the
legal effect of his language is immaterial: Estate of Young,
123 Cal. 343, 55 Pac. 1011 ; Estate of Walkerly, 108 Cal. 627,
49 Am. St. Rep. 97, 41 Pac. 772 ; Estate of Fair, 132 Cal.
546. 84 Am. St. Rep. 70. 60 Pac. 442, 64 Pac. 1000; Hunter
V. Attorney General, [1899] App. Cas. The direction for
the payment of one thousand dollars does not furnish a
trust purpose for the attempted trust of the residuum: Civ.
Code, sec. 1322. One of the purposes of the trust of the
specifically devised property being void, as providing for
Estate of Doe. 59
an unlawful accumulation, the entire trust is void: Estate
of Fair, 132 Cal. 523, 540, 541, 84 Am. St. Rep. 70, 60 Pac.
442, 64 Pac. 1000; Estate of Dixon, 143 Cal. 511, 77 Pac.
412; Estate of Sanford, 136 Cal. 97, 68 Pac. 494. The trust
to' pay rents and profits to the executors, to be paid to the
beneficiaries, is not valid under subdivision 3 of section 857
of the Civil Code: "Field Code" of New York, sec. 285, subd.
3, and annotations. A trust under this section and subdi-
vision must be made dependent on the lives of the benefi-
ciaries : Downing v. Marshall, 23 N. Y. 366, 80 Am. Dec. 290.
In adopting the statute from New York, we adopted the con-
struction which Downing v. Marshall, supra, placed upon
it: Henrietta Min. Co. v. Gardner, 173 U. S. 123, 19 Sup.
Ct. 327, 43 L. Ed. 637 ; Sanger v. Flow, 48 Fed. 152 ; Coul-
ter V. Stafford, 48 Fed. 266, 270 ; Tucker v. Oxley, 5 Cranch,
34, 42, 3 L. Ed. 1018; Culam v. Doull, 133 U. S. 216, 10
Sup. Ct. 253, 33 L. Ed. 596; Kennedy's Heirs v. Kennedy's
Heirs, 2 Ala. 571; Armstrong's Ex. v. Armstrong's Heirs,
29 Ala. 538; Bailey's Heirs v. Bailey's Ex., 35 Ala. 687;
Tyler v. Tyler, 19 111. 151; Duval v. Hunt, 34 Fla. 85, 15
South. 876; Freese v. Trip, 70 111. 496; Bemis v. Becker, 1
Kan. 86 ; Commonwealth v. Hartnett, 69 Mass. 450 : State v.
Macon Co., 41 IMo. 453; Coffield v. State, 44 Neb. 417, 62
N. W. 875; Everding v. McGinn,' 23 Or. 15, 35 Pac. 178;
Pomeroy v. Pomeroy, 93 Wis. 262, 67 N. W. 430. The cases
of Crooke v. County of Kings, 97 N. Y. 421, and Bailey v.
Bailey 97 N. Y. 460, are not here applicable or competent
to change the construction placed upon the statute in Down-
ing V. Marshall: Stutsman Co. v. Wallace, 142 U. S. 293,
12^Sup. Ct. 227, 35 L. Ed. 1018 ; Myers v. McGavock, 39 Neb.
843, 42 Am. St. Rep. 627, 58 N. W. 522. The trust created
by the second paragraph of the codicil provides for unlaw-
ful accumulations in directing payment of (1) mortgages
(Hascall v. King, 162 N. Y. 134, 143, 76 Am. St. Rep. 302,
56 N. E. 515) ; (2) charges on the property (Hascall v. King,
162 N. Y. 134, 76 Am. St. Rep. 302, 56 N. E. 515; Matter
of Hoyt, 71 Hun, 13, 24 N. Y. Supp. 577; Wells v. Wells,
30 Abb. N. C. 225, 24 N. Y. Supp. 874 ; In re Fishor, 4 :\Iise.
Rep. 46, 25 N. Y. Supp. 79) ; (3) street assessments (Mat-
60 Coffey's Probate Decisions, Vol. 1.
ter of Rogers, supra ; Hascall v. King-, supra ; Norwood v.
Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443 ; Peck
V. Sherwood, 56 N. Y. 615 ; Thomas v. Evans, 105 N. Y. 601,
612, 59 Am. Rep. 519, 12 N. E. 571; Cromwell v. Kirk, 1
Dem. 599, 603; Stilwell v. Doughty, 2 Bradf. 311, 317) ; (4)
expenses incurred in making improvements on the property
(Drake v. Trafusio, L. R. 10 Ch. App. 364, 366; Stevens v.
Melcher, 80 Hun, 514, 525, 30 N. Y. Supp. 625). The trust
being created to pay over only such rents and profits as may
remain after the paymeiit of these items which amount to
accumulations, the trust is void : Carpenter v. Cook, 132 Cal.
625, 81 Am. St. Rep. 118, 64 Pac. 997; Limbrey v. Gurr, 6
Madd. 151. Section 733 of the Civil Code does not save the
trust.
The trust of the residuum is a trust to distribute, and
therefore void : Estate of Fair, 132 Cal. 523, 84 Am. St. Rep.
70, 60 Pac. 442, 64 Pac. 1000 ; Hofsas v. Cummings, 141 Cal.
25, 75 Pac. 110. A trust cannot be created to hold property,
receive the rents and profits, and pay them over as annuities.
The only trust in real property for the payment of annuities
permissible in this state is that provided by subdivision 2 of
section 857 of the Civil Code, which is not a trust to "hold,"
but a trust to lease, which involves an alienation and not a
holding: Hascall v. King, 162 N. Y. 149, 76 Am. St. Rep.
302, 56 N. E. 515; Hawley v. James, 16 Wend. 62. The de-
vise in remainder after the expiration of the trust of the
specific property falls with the invalidity of the trust : ]\Ioney-
penny v. Dering, 2 De Gex, M. & G. 180; Cowen v. Rinaldo,
82 Hun, 479, 31 N. Y. Supp. 554; Carpenter v. Cook, 132
Cal. 621, 84 Am. St. Rep. 118, 64 Pac. 997.
COFFEY, J. John S. Doe died January 21, 1894, leav-
ing a widow and child, two brothers, two sisters, several
nephews and nieces, and other collateral kindred. He had
made a will, dated January 26, 1892, and a codicil dated No-
vember 21, 1893, which were admitted to probate February
9, 1894. The entire estate was the separate property of de-
cedent, and was appraised in 1894 at $1,383,184, and in the
final account set down at $1,954,317.
Estate op Doe. 61
The executors named in the will, his brothers, Bartlett
Doe and Charles F. Doe, immediately qualified and acted
jointly until January 16, 1904, when Charles died, and there-
after Bartlett acted alone until March 16, 1905, when he filed
his 'final account and petition for final distribution to the
persons entitled thereto.
To this petition the former widow, now remarried, made
response, claiming that decedent died intestate as to all the
property which he owned except what was disposed of by the
second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth
and eleventh paragraphs of his will, and she asked, therefore,
that there be distributed to her in fee simple absolute one-
half of all his estate not included in the clauses enumerated.
The codicil confirms the will down to the twelfth para-
graph, which it revokes, substituting therefor other provi-
sions.
The paragraphs necessary to consider are here inserted.
The will contained the following provisions :
"Twelfth — The rest and residue of my estate, real, per-
sonal and mixed, of every nature and kind whatsoever of
which I may die seized or possessed, I give, devise and be-
queath to my brothers Bartlett Doe and Charles F. Doe,
hereinafter named as the Executors of this my last Will, in
trust nevertheless, to be held by them until my daughter
^lary Marguerite now One year old, shall have reached the
age of Eighteen years, when the same shall be distributed
as follows, to-wit:
*'To my said daughter, Mary Marguerite one-half thereof,
and to my wife Eleanor Doe, the other half for her life,
with remainder to my said daughter ]\Iary INIarguerite.
Should my said wife Eleanor die before my daughter arrives
at the age of Eighteen years, then the interest hereby devised
and bequeathed to my said wife, to go to my said daughter.
"Thirteenth. — Should my said daughter ^lary ^Marguerite
die before she arrives at the age of p]ighteen years then the in-
terest hereby devised to my said brothers Bartlett and Charles
F. Doe, in trust for my said daughter, to go to my heirs, who
may be living at the time of her death, and to be by my said
62 Coffey's Probate Decisions, Vol. 1.
brothers distributed to my said heirs, according to the Stat-
utes in such cases made and provided.
"Fourteenth.— I hereby nominate and appoint my broth-
ers Bartlett Doe and Charles F. Doe, the Executors of this
my last Will, hereby expressly waiving the giving of any
bond or bonds, for the discharge of their duties as such
Executors.
"Fifteenth — I give and grant to my said Executors and
Trustees full power and authority to sell and convey all or
any part or portion of my said ."'^^^state, as in their judgment
they shall think best, and to re-in /est the proceeds from time
to time to the best interest of those concerned.
"And I hereby direct my said Executors to pay over to my
said wife monthly, until my said daughter arrives at the age
of Eighteen years, the sum of One Thousand Dollars for the
following purpose, to-wit : Five Hundred Dollars for the sup-
port of my said wife, and Five Hundred Dollars for the sup-
port and maintenance of my said daughter."
In the codicil to the will it is provided :
"First — I hereby re-publish and affirm all that is contained
in said Will down to the ]2th paragraph thereof, and I
hereby revoke and annul all the rest and remainder thereof,
to-wit: all that is contained in said Will beginning with said
12th paragraph and down to the end thereof, and in lieu
of the said part and portion so annulled and revoked do
make, publish and declare this Codicil to my said Will in
manner following:
"Second — I give and devise to my brothers Bartlett Doe
and Charles F. Doe hereinafter named as the Executors of
this my last Will and Testament all my right, title and inter-
est in and to all the certain lots, pieces and parcels of land
situate, lying and being in the City and County of San
Francisco State of California, and described as follows:
[Here follow the descriptions of a number of pieces of
improved and unimproved real property in San Francisco.]
"In trust nevertheless for my wife Eleanor Doe and my
daughter INIary Marguerite Doe. Said trust to continue dur-
ing the life time of my said trustees, and upon the death of
Estate op Doe. 63
either of said trustees the trust to conJ;inue and to be carried
out and into effect by the survivor, and to terminate only
on his death.
"Giving' and granting unto my said trustees and to the
survivor upon the death of either of them full power and
authority to take possession of, improve, mortgage and con-
vey my said interest in the said pieces and parcels of land or
either of them as they may deem most beneficial to the inter-
est of all concerned, and to invest and reinvest the proceeds
received from the sale of the same from time to time as in
their judgment shall be for the best interest of the benefi-
ciaries under this trust, and annually to pay over and deliver
to the Executors of this my last Will, the rents, issues and
profits thereof that may remain after paying all taxes, street
assessments and other charges upon the same, and costs and
expenses incurred in making improvements thereon, which
rents, issues and profits my said Executors are hereby re-
quired and directed to pay over as they may be received to
my said wife Eleanor Doe and my said daughter Mary Mar-
guerite Doe.
"And upon the death of the survivor or last of my said
trustees and the termination of the trust thereby created, I
give, devise and bequeath to my said wife Eleanor and to
my said daughter Mary Marguerite all my right, title and
interest in and to said pieces and parcels of property herein-
before described, and such portion of the rents, issues and
profits thereof as may remain in the hands of my said trus-
tees, or the survivor of them undisposed of at the termination
of this trust, and also my right, title and interest in and to
any and all other pieces and parcels of property that my said
trustees may purchase and acquire from the proceeds of the
sale of any part or portion of said real estate that they may
sell during the continuance of this trust, it being my will,
wish and purpose that on the death of the last of my said trus-
tees and the termination of said trust that all my right, title
and interest in said trust estate shall be paid over and deliv-
ered to my said wife Eleanor and my said daughter Mary Mar-
guerite, provided, however, that the interest hereby devised
to my said wife Eleanor to be for and continue during
564 Coffey's Probate Decisions, Vol. 1.
her lifetime, and upon her death to go to my said daughter
Mary Marguerite.
"Third — The rest and residue of my estate, real, personal
and mixed of every nature and kind whatsoever of which I
may die seized or possessed, I give, devise and bequeath to my
brothers Bartlett Doe and Charles F. Doe, hereinafter named
as the Executors of this my last Will, in trust nevertheless
to be held by them until my daughter Mary Marguerite shall
have reached the age of Eighteen years, when the same shall
be distributed as follows, to-wit:
"To my said daughter Mary Marguerite one-half thereof
and to my wife Eleanor Doe the other half for her life with
remainder to my said daughter Mary Marguerite. Should
my said wife Eleanor die before my daughter arrives of the
age of Eighteen years then the interest hereby devised and
bequeathed to my said wife to go to my said daughter.
"Fourth — Should my said daughter Mary Marguerite die
before she arrives at the age of Eighteen years, then the
•interest hereby devised to my said brothers Bartlett and
Charles F. Doe in trust for my said daughter to go to my
heirs, who may be living at the time of her death, and to be
by my said brothers distributed to my said heirs according
to the statutes in such cases made and provided.
"Fifth — My said brothers Bartlett Doe and Charles F. Doe
are interested in said pieces and parcels of land mentioned
and referred to in paragraph 2 hereof, and are owners thereof
with me as tenants in common, our interests therein being in
common and undivided, and it being the wish, purpose and
intent of the several owners of said pieces and parcels of
land to keep our interests therein intact and undivided during
the lifetime of all and each of us, I have made the provision
herein contained to accomplish that purpose, and my said
brothers being like-minded have made their Wills with like
provisions to effectuate the said object. Said Wills having
been made upon a mutual understanding between us to the
above effect.
"Sixth — I hereby nominate and appoint my said brothers
Bartlett Doe and Charles F. Doe, the Executors of this, my
last Will and Testament without bonds, hereby waiving the
Estate of Doe. 65
giving of any bond or other undertaking for the faithful dis-
charge of their duties under this Will and as Executors and
Trustees hereunder.
"Eighth — I hereby direct my said Executors to pay over
to n>y said wife monthly until my said daughter arrives at
the age of Eighteen years, the sum of One thousand Dollars
for the following purpose, to-wit: Five hundred Dollars for
the support of my said wife, and Five hundred Dollars for
the support and maintenance of my said daughter."
The purpose of testator is patent. Whether or not he has
legally accomplished that purpose, is the question. For ten
years the trust remained unassailed, but now it is challenged
as invalid because it is contrary to the code, as (1) the term
is not properly constituted, (2) the devise to the trustees
"for" the widow and daughter is void, (3) the direction to
the trustees to pay taxes, street assessments and other charges
oat of the income is a direction for an unlawful accumula-
tion, (4) the gift of income annually is a gift of an unlaw-
fully accumulated fund and is void, (5) the direction to the
trustees to pay over the residue of the income after deducting
moneys expended for purposes shown to be unlawful is void,
(6) if the mode in which the testator has framed his gift
fails for illegality, the court cannot provide a valid mode
in order to effectuate his intent; (7) the trust to pay the
residue of the income to the executor, followed by the direc-
tion to the executor to pay it to the widow and daughter, is
void; (8) the subsequent limitations of the trust property
fall with the illegal trust, for where valid and invalid pro-
visions are so blended that it is impossible to separate them
and give effect to the one without doing violence to the in-
tention of the trustor, the whole trust must fall; (9) there is
no devise over of the trust property in the event of the
failure of the trust; (10) the gift is contingent "upon the
termination of the trust"; the court cannot transmute it into
a vested remainder; (11) the intended mode of passing the
property has failed for illegality, and the court cannot sup-
ply a valid mode; (12) the property embraced in the void
trust does not pass under the third paragraph of the codicil ;
(13) the trust which the testator has attempted to create in
Prob. Dec, Vol. I — 5
Q6 Coffey's Probate Decisions, Vol. 1.
the third and fourth paragraphs to the codicil is void (14)
the trust to distribute is unauthorized by section 857, Civil
Code.
We are reminded in undertaking to construe this instru-
ment of the duty of the court to disregard the design of the
testator unless it comports with the rules of law. The func-
tion of the court is to determine the intention of the testator
and then to apply the canons of construction, and not to con-
stitute a valid for an invalid devise. We are told that the
best method to be pursued in such case is that in Cunliffe v.
Brancker (L. R. 3 Ch. D. 899), where Sir Geo. Jessel said:
"All we have to do is to construe the instrument fairly,
find out what it means, and then to apply the established
rules of law to the instrument, and see what the effect will
be.
"How far judges may be, or ought to be, able to defeat a
rule of law of which they disapprove I cannot say. It is
the duty of a judge not to allow himself to be so influenced,
but to construe the instrument in a proper way, to arrive at
its meaning independently of the results, and then apply the
law. This has been laid down over and over again with re-
gard to another rule of law — the rule against remoteness or
perpetuity — but I do not see that, because in the opinion of
the judge the one rule of lav/ is reasonable and the other un-
reasonable, the rules of construction are to be altered."
Of two modes of interpreting a will, says the code, that is
to be preferred which will prevent a total intestacy; but the
supreme court has said that if the legal effect of the expressed
intent of testator is intestacy, it will be presumed that he de-
signed that result. If a fair interpretation of the will results
in total or partial intestacy because of rules prohibiting the
devises attempted, the court may not alter the construction to
avoid or evade that consequence.
The first point made by respondent is that the trust is
necessarily void for the reason that its term is not properly
constituted, as the trust attempted to be created is measured
by the lives of two persons — the two trustees — and by the life
of the survivor of them, and neither of said persons had any
beneficial interest in the trust whatever. It was not to cease-
Estate of Doe. 67
with the death of the widow or the daughter, but was in-
tended to continue during the lives of the trustees, whether
the daughter should die or whether the widow should die,
or whether they both should die during the lifetime of these
trustees. Upon this point it is argued that the meaning of
the testator is manifest. The authorit}^ for this proposition
is Downing v. Marshall, 23 N. Y. 377, but it seems that that
decision has been discredited in later eases and declared dic-
tum. At the time, however, that the California codifiers cop-
ied from the New York law the present code provision, that
case was supposed to be sound, and, it is asserted, should be re-
ceived as controlling in this court, for it is a general canon
of construction that if statute adopted from another state
had been construed by the courts of that state prior to its
adoption here, the same construction should be given ordin-
arily in this state, but this rule has not always been followed,
and has been modified in cases, as, for example, where the
courts of the state from which the statute had been taken
have since altered their opinion as to its construction. The
rule is not an absolute one, especially where there is but a
single decision, and that subsequently discarded as authority
in the same state. When, therefore, it is argued that at the
time we took our statute of uses and trusts from New York,
we accepted the construction given in Downing v. Marshal,
the answer is acute that, as the appellate tribunal of that
state has renounced that case as authority, it has no force
here, and it being the sole support of respondent on this
point, his contention is without basis.
It is not the wish of this court to lengthen its opinion by
extracts from cases, but, so far as petitioner relies upon
Downing v. IMarshal. it would seem that the views of that
case cannot govern here: Crooke v. County of Kings, 97 N.
Y. 421 ; Bailey v. Bailey, 97 N. Y. 467.
These cases are substantially identical, and in the latter
one, as counsel for respondent says on page 63 of brief, the
judge writing the opinion saw fit "to criticise in a liostile
manner the decision of Downing v. ^Marshall and implies that
the opinion in that case relating to the lives measuring the
trust was dictum."
68 Coffey's Probate Decisions, Vol. 1.
It is worth while, perhaps, to make this criticism clear in
connectiou with the case at bar, to quote from the opinion,
which was concurred in by all the judges:
"We do not concur in the view expressed by the learned
judge (in Downing v. Marshall) as to the construction of the
statute cited, and upon a careful examination of the same
we are of the opinion that the limitation provided is a limi-
tation of time and not a personal one. We think that a cor-
rect interpretation of the same authorizes the naming of the
lives of strangers as well as beneficiaries as the limitation of
the devise. No reason exists why the lives named in a devise
of this character should be confined to those who are inter-
ested in the estate, and it was the evident purpose of the
statutes to confer upon the testator the power to fix such lives
as he chose to designate within its terms. This is very mani-
fest upon examination of the various provisions relating to
the subject. Under the statute relating to uses and trusts,
an express trust may be created 'to receive the rents and
profits of land and apply them to the use of any person
during the life of such person or for a shorter term, subject
to the rules prescribed in the first article of this title ' : 1
Rev. Stats. 728, sec. 55, subd. 3. Among the rules referred
to is that contained in a previous provision of the statute.
(1 Rev. Stats. 723, see. 15) which declares that 'the absolute
power of alienation shall not be suspended by any limitation
or condition whatever for a longer period than during the
continuance of two lives in being at the creation of the estate. '
These two statutes must be considered and read in connection
with each other in giving an interpretation to their meaning.
The first (section 55) provides for a trust for the use of
a person during the life of such person or a less period, and
the second (section 15) limits the time during which the trust
may be held. In the former nothing is said about benefi-
ciaries, and, standing alone, it is not apparent that the limi-
tation is confined to their lives. The latter section alone con-
tains the limitation, and it is not restricted to any class of
lives and embraces any lives upon which the trust created is
limited. To bring a case within the rule provided for, it is
not required, we think, that the lives during which the power
Estate of Doe. 69
of alienation is suspended should be those of beneficiaries,
and if the estate may be alienated absolutely at the expiration
of any two lives in being at the time of its creation, the pro-
vision is complied with. To illustrate : if a trust is created
to receive rents and profits and apply them to the use of four
joint lives, upon the death of either, then to the use of the
survivors and so on until the death of the last survivor, the
trust in the ease of each beneficiary is simply during his life,
or for a shorter period — that is, as to the share to which he
is entitled at the outset it is during his life. If he survives
either of the other beneficiaries, then he has an additional
portion during the remainder of his life. But the trust
would be void as it would suspend the power of alienation
for more than two lives. If, however, a condition be added
to the trust that in any event it shall terminate upon the death
of tvvo persons who are strangers to the trust, then the rule
referred to is complied with. In that case in no event can
the power of alienation be suspended beyond these two speci-
fied lives. Upon the death of the survivor of the two
strangers named, although all the beneficiaries be living, the
trust estate terminates. The trust, then, while it can only
exist during the lives of the two strangers, is also for the life
of each beneficiary subject to be terminated by the death of
the lives named during his or her life. Its continuance is not
dependent upon the lives of the beneficiaries, but upon the
lives of strangers. When they are ended, the two lives named
have passed away and the limitation ceases. The fact that a
number of persons are to be benefited under the trust during
the lives of the strangers named does not create a trust
beyond two lives in being contrary to the statute. It follows
that the limitation contained in the sixth clause of the tes-
tator's will was not a violation of the statute, and that the
provisions therein were valid, and the same should be upheld.
"Since the foregoing was written, the cases of Crooke v.
County of Kings and Crooke v. Prince, which were first
argued before this court in the month of June, 1883. have
been heard upon a reargument. These cases involved the con-
struction of the provisions of a will where a trust was created
which depended upon the life of a stranger named therein.
70 Coffey's Probate Decisions, Vol. 1.
No question was made on the argument that the provision
referred to was invalid upon the ground that the trust
created depended upon the life of a person who M^as not a
beneficiary, and a reargument was ordered upon another and
a different question. Upon the last argument, however, the
ciuestion now considered, which was previously overlooked,
was fully presented and the court arrived at the conclusion
that a trust, of the character referred to, was valid, and not
in violation of the statute. The subject is fully considered
in the opinion of the court by Finch, J., and it disposes of the
question presented in the case at bar. As that authority is
directly in point, it is decisive in this case": Bailey v. Bailey,
97 N. Y. 467.
Counsel for respondent rel}^ absolutely upon Downing v.
Marshall, and quote this passage to ilkistrate this point:
' ' But, although trusts to receive and apply rents and profit^i
ma.y be created under the statute of uses and trusts,, the one
in question is not constituted in the manner which that stat-
ute prescribes. The application of rents and profits must
be 'to the use of any person during the life of such person,
or for any shorter term': 1 Rev. Stats., p. 728, sec. 55, subd.
3. The trust must, therefore, be made dependent on the life
of the beneficiary. In this case the beneficiaries are asso-
ciations, incorporated or unincorporated; while the lives on
which the trust depends are those of two natural persons
having no interest in its performance. Such a limitation is
plainly unsupported by any construction which we can give
to the language of the statute": Downing v. Marshall, 23 N.
Y. 377, 80 Am. Dec. 290.
Counsel contend that section 857, subdivision 3, of the
California Civil Code is even more explicit in this connection
than is the section of the New York Revised Statutes cited
in the foregoing extract. Subdivision 3 of section 857 of
our code is identical with subdivision 3 of section 285 of the
proposed Civil Code of New York, the so-called "Field
Code," printed 1865, which had been revised in view of
Downing v. Marshall, and counsel insist that thereby our code
must be construed in the light of that decision; but we have
seen that this rule is not uniform, and that our code provision,
Estate of Doe. 71
though taken from New York, receiving there the construc-
tion claimed before its adoption here, such decision does not
necessarily control; it may be persuasive, but not conclusive.
Depending upon that decision, respondent asserts that the
trust here is void, for it does not rest on the lives of the bene-
■ ficiaries ; the widow and daughter may both die ; the executors,
to whom the payment of income is to be made in the first
instance, may change from time to time and die, but the trust
is to terminate only upon the death of the surviving trustee;
but this view does not accord with the accredited authorities
cited, which declare that the inherent character of the trust
and its essential limitations may form an element in the con-
struction to be given to the language creating it. As said
in Crooke v. County of Kings, "that character and those
limitations are such that the trust cannot exceed in duration
the lives of the beneficiaries, because upon their death its
purpose is accomplished, and a trust supposes a beneficiary,
and so its very creation implies necessarily, without express
words, a termination at such period. If, then, in creating
the trust, one or two lives of persons not beneficiaries are
designated as its measure of duration, it follows that such
designation can never be intended to lengthen the trust
lieyond its possibility of existence, and that the language
which confines its benefits to persons who are or may be living,
sufficiently indicates an intention to end it at their deaths,
unless it is earlier terminated by the close of the selected life,
or lives. And when, in the present case, the vesting of the
fee was fixed at the death of the trustee, the close of the
selected life, that must be read and construed in connection
with the other necessary limit indicated by the language
declaring the purpose of the trust, and held to mean that the
vesting is to take place at the end of the designated life, or
at the period less than that marked by the earlier death of
all the beneficiaries. We are not to gather, from the language
of the will, the absurd and destructive intention to continue
a trust beyond the limit implied by its own nature and in-
herent character, unless compelled to it by the language which
will admit of no other interpretation."
72 Coffey's Probate Decisions, Vol. 1.
The language of the trust does not necessarily bear the
meaning attributed to it by respondent. We should not de-
stroy the trust, unless there is no other recourse in interpret-
ing the words of testator. If the words of this will can be
construed to preserve its purpose, the court should not be
swift to subvert it.
The intention of the testator w^as not to create a trust to
continue beyond the life of his wife and child. Such a con-
struction does not seem to this court reasonable. The as-
sumption appears to have been that they would survive the
trustees. Certainly the duration of the trust cannot be as-
sumed to be beyond the lives of the beneficiaries, for it w^as
possible that they might predecease the trustees, in which
case the trust would terminate.
Upon this point, the court cannot sustain the contention
of respondent.
What was the object of this trust? To pay over the rents
and profits to the surviving wife and daughter. When they
die, it ceases, because the object is accomplished. When the
purpose for which an express trust was created ceases, the
estate of the trustee also ceases: Civ. Code, sec. 871. The
measure of the estate of the trustees is the necessity of the
trust, and in making the provision for the payment of the
income it is certain that only the mother and daughter were
intended as recipients, and, therefore, the trust term could
not extend beyond their existence.
Is the devise of the trustees "for" the widow and daugh-
ter void? Respondent relies upon the case of Wittfield v.
Forster 124 Cal. 418, 57 Pac. 219, but after a careful reading
of that case this court fails to see its application. The syl-
labus shows with sufficient clearness that the case cited is
not analogous to the one at bar. "A conveyance of all the
real and personal property of the grantor to a trustee in
trust for an unincorporated association named, to have and
to hold to the trustee named, 'his successors and assigns,
forever,' without further specification as to the purpose of
the trust, or as to the duration of the estate, or as to the
nature and quantity of interest of the beneficiaries, or as
to the manner in which the trust is to be performed does not
create a valid trust as to the real property, within any of
Estate of Doe. 73"
the provisions of section 857 of the Civil Code, and under
section 2221 of that code, the whole trust, both as to the
real and personal property, is void for uncertainty." In
the case here there seems to be a substantial difference. In
that case there was a devise "in trust for" another. There
were no trust purposes specified and no other duties imposed
upon the trustee. It was a bare trust for another. In this
case, while the language is "in trust for" others, the trust
purposes are specified and trust duties are imposed.
Is the direction to the trustees to pay taxes, street assess-
ments and other charges, and expenses incurred in improve-
ments out of the income a direction for an unlawful accumu-
lation? This point has been presented with fullness and
force by counsel for respondent, who, while admitting that,
generally speaking, it is undoubtedly the rule that a direc-
tion for an invalid accumulation is void only pro tanto, and
passes -over the income to the owners of the next eventual
estate, insist that the peculiar effect of the void provision
here is to render void the entire instrument. Great stress
is laid upon this provision, and it is argued that assuming
the power to be susceptible of being construed as a trust pur-
pose, the trust is annually to pay over and deliver to the ex-
ecutors the rents, issues and profits of the trust propert}'
that may remain after paying all taxes, street assessments
or other charges upon the same and expenses incurred in
making improvements thereon. This is not a trust to pay
over rents and profits, but only to pay over what may be
left of the rents and profits after the same have been applied
to the payment of the items mentioned.
Each case of this class must be considered according to its
own circumstances, and the expressions of the testator should
not be interpreted in a manner subversive of his intention
unless that be plainly contrary to law. As was said in a
case recently decided by. our supreme court, Matter of Iley-
Avood, "in construing testamentary dispositions of property,
it is a cardinal rule, that a liberal construction should be
given to them, and all reasonable intendments indulged in,
with a view of sustaining the purpose which it is disclosed
the testator had in view. No particular form of expression
is necessary to constitute a valid trust. It is sufficient that,.
74 Coffey's Probate Decisions, Vol. 1.
from the language used, the intention of the testator is ap-
parent, and that the disposition in trust which he endeavors
to make of his estate is consistent with the rules of law.
The intent of the testator is the matter for primary consid-
eration, and it is innnaterial what method of expression is
employed as long as that intention can be ascertained."
In Hill on Trustees, 101, it is remarked that it is one of the
fixed rules of equitable construction that there is no magic in
particular words, and our appellate court has declared that
it is, of course, "a fundamental principle that a construc-
tion of a will favorable to testacy will always obtain when
the language used reasonably admits of such construction,
and that it will not be held to contain a void trust unless
the invalidity of the trust is beyond question .... and
cannot be reasonably construed otherwise": Estate of
Dunphy, 147 Cal. 95, 81 Pac. 315.
It is insisted in the case at bar that the trusts are void,
being for purposes not specified in section 857 of the Civil
Code, and as they are inextricably interwoven with the trust
to pay the remainder of the rents, that trust falls with them.
If we are to be guided by the explicit indication of the
purpose of the testator, it would be doing violence to his in-
tention so to construe the terms of the will in the trust under
consideration. He devised the specifically described prop-
erties to trustees, for the benefit of two beneficiaries, his wife
and daughter. The provisions clearly indicate that it was
the intention of the testator that they should receive the in-
come from the trust property.
What were these trustees to do in the management of this
trust? It clearly appears that the motive was the main-
tenance of the minor and her mother. They were to receive
the rents, issues and profits after the discharge of incidental
expenses, such as are set forth. They alone are entitled to
the income from the trust property, and they are entitled
in due season to the corpus of the trust estate. It is argued
that the direction of the will to discharge out of the income
the costs and expenses incurred and incident to the admin-
istration of the trust is void, and that no matter how clearly
a testator may have expressed himself in this regard, his
intent cannot prevail; in other words, the essential purpose
Estate of Doe. 75
of the trust is to be sacrificed to the incidental necessities
of its fulfillment. It is the duty of the trustees to hold the
property and administer it; subject to the trust, the estate
is vested in them. How can they discharge their duty if
they are restricted to the extent contended for by counsel ?
Even if this part of the clause were invalid, it is not so
inextricably interwoven or so essentially a part of the trust
scheme that all the other trust provisions would fall if it
could not be sustained. In any event the entire income
would go to mother and daughter. That is the express di-
rection of the testator. If he authorized an invalid accu-
mulation of a portion of that income, that provision failing
the amount would necessarily be payable to them. The in-
valid clause is not an integral part of the scheme ; it is a
provision entirely separable from it; it is plain that the
primary trust would be unaffected and the primary purpose
of the testator fulfilled, even if this direction should be held
void ; but for the reasons suggested, it seems to this court,
that, in the circumstances of this case, the direction is not
unlawful.
It is contended that the provision for retaining the in-
come and paying it over annually is void; but this is a mere
matter of management, and it seems to this court that to
accept this argument would be to carry the doctrine in-
voked to an extreme. Where the entire net income is dis-
tributed annually, the courts have held that there is no
accumulation. The purpose of the statute is to prevent per-
manent accumulations, not to interfere with judicious man-
agement. The cases are numerous on this point and cita-
tions need not be multiplied.
Counsel are insistent upon the proposition that the tes-
tator did not give to his widow and his child the whole
income of his estate, but only the residue after certain
charges were to be paid, and that, therefore, the direction
to the trustees to pay over the residue of the income after
deducting moneys expended for purposes shown to be unlaw-
ful is void; and, hence, if the mode prescribed is illegal, the
court cannot substitute a valid mode, no matter how obvious
his intent; and, that the trust to pay the residue of the in-
come to the executors by them to be paid to the widow, is
76 Coffey's Probate Decisions, Vol. 1.
void; and that the subsequent limitations of the trust prop-
erty fall with the illegal trust, for the reason that they
are inseparably blended. These points might be judicially
treated at greater length, but it would serve no purpose,
since their substance has been discussed in the preceding
pages. This court does not agree with counsel for the
widow in the conclusions they deduce and apply from the
abstract rules of law. As counsel say, the scheme of the will
is perfectly clear; but they claim that the testator would
not, if properly advised, have made the disposition that he
did, for they believe that he would not have liked the idea
that at the age of eighteen years this child would have come
into the whole of this vast estate, for he manifested regard
for and confidence in his widow, and it seems likely, if they
could indulge in speculation, that he would have preferred
in such circumstances that the mother of his child, her nat-
ural protector, should have one-half of his property. But
this is speculation on the part of counsel. What testator
meant is to be tested by what he said.
In the paragraph of the codicil which creates the trust
embracing specific property, it is provided that, "upon the
death of the survivor or last of my said trustees, and the
termination of the trust hereby created, I give, devise and
bequeath to my said wife Eleanor and to my said daughter
Marguerite" all the property embraced in the trust, "pro-
vided, however, that the interest hereby devised to my said
wife Eleanor to be for and continue during her lifetime,
and upon her death to go to my said daughter Mary Mar-
guerite. ' '
It will be observed, therefore, that, subject to the devise
of the trustees, all of the property embraced within the
trust w^as devised to the widow and daughter, one-half to
the daughter absolutely and the other half to her, but sub-
ject to a life estate in her mother. Such a devise is per-
fectly valid.
"A future estate may be limited by the act of the party
to commence in possession at a future day, either without
the intervention of a precedent estate, or on the termina-
tion, by lapse of time or otherwise, of a precedent estate
created at the same time": Civ. Code, sec. 767.
Estate of Doe. 77
Nor would the estate devised to the wife and daughter
of the testator be defeated by the invalidity of the devise
in trust of the intermediate estate. The rule that a future
estate is not affected by the destruction of a precedent es-
tate is recognized in the following provisions of the Civil
Code:
"No future interest can be defeated or barred by any
alienation or other act of the owner of the intermediate or
precedent interest, nor by any destruction of such prece-
dent interest by forfeiture, surrender, merger, or otherwise,
except as provided by the next section, or where a forfeiture
is imposed by statute as a penalty for the violation there-
of": Civ. Code, sec. 741.
"No future interest, valid in its creation, is defeated by
the determination of the precedent interest before the hap-
pening of the contingency on which the future interest is
limited to take eft'ect; but should such contingency after-
ward happen, the future interest takes effect in the same
manner, and to the same extent, as if the precedent interest
had continued to the same period": Civ. Code, sec. 742.
Counsel for the widow argue that there is no devise over
of the trust property in the event of the failure of the
trust, and that the gift is contingent "upon the termination
of the trust" and that the court cannot transmute it into
a vested remainder, but this argument seems to be answered
by saying that the testator did not contemplate a contin-
gency such as is suggested; he must have assumed the valid-
ity of the trust and that it would terminate upon the death
of his brothers, naturally anticipating that the widow and
child would survive them. The event upon which the estate
of the beneficiaries is limited is certain, the death of the
trustees; the time is uncertain. A future interest is con-
tingent, whilst the person in whom, or the event upon which,
it is limited to take effect remains uncertain : Civ. Code, sec.
695.
In this ease neither the persons to whom the future es-
tate is limited nor the event are uncertain. The sections
of the Civil Code controlling this point may here be in-
serted.
78 Coffey's Probate Decisions, Vol. 1.
A present interest entitles the owner to the immediate
possession of the property: Section 689.
A future interest entitles the owner to the possession of
the property only at a future period: Section 690.
A future interest is either: 1. Vested; or 2. Contingent:
Section 693.
A future interest is vested when there is a person in be-
ing who v/ould have a right, defeasible or indefeasible, to
the immediate possession of the property upon the ceasing
of the intermediate or precedent interest : Section 694.
Section 695 as above quoted.
The argument against the widow that the estate devised
to the beneficiaries is a vested remainder — one vested in in-
terest, but postponed in possession, seems to be supported
by these sections.
If this be so, it follows that the surviving wife and daugh-
ter take a vested remainder in the specifically described
properties.
Counsel for the widow contend that the trust declared in
clauses 3 and 4 of the codicil is void, and say that these
paragraphs contain the entire provisions of the trust. These
paragraphs are identical with 12 and 13 of the original will,
but paragraph 5 of the codicil is new. Paragraph 6 ap-
points Bartlett and Charles F. Doe without bonds as execu-
tors and trustees, and 7 requests to employ Daniel Titus as
their attorney. Paragraph 8 follows and that is practically
the final clause, and provides that the executors pay to his
wife monthly, until his daughter arrives at the age of eigh-
teen years, the sum of one thousand dollars for the follow-
ing purpose to wit: Five hundred dollars for the support
of his said wife, and five hundred dollars for the support
and maintenance of his said daughter. Counsel argue that
the relative position of these clauses raises the strongest kind
of a presumption against any connection between them, and
that the only rational construction of paragraph 8 is that
it is an attempt by the testator to prescribe the amount of
family allowance which should be paid. If, however, the
provision for maintenance is to be executed, it must be out
of the residuum. There is no other way of carrying out the
purpose of the testator. This duty was imposed upon them
as executors. It was an active duty and such as usuallv
Estate op Doe. 79
pertaius to the offiee of trustees, and such they must be
deem'ed to be for the performance of these duties. This
seems to be the essence of the authorities on this point. It
does not seem to this court that the position of the clauses
in the will shows that in the mind of the testator they had
no connection. He certainly designed that his wife and
daughter should be supported out of the estate, and re-
course to the residuum was the only means by which that
object could be accomplished. That was his evident pur-
pose, and a strained construction should not be resorted to
to defeat his design.
It is contended with confidence that the trust herein is to
distribute and is, consequently, void, but this court cannot
accept this contention for reasons already advanced. Even
if this residuary trust were invalid, the effect would not be
fatal to the devise to the mother and daughter. It would
simply shorten the period of possession; to translate the
technical terms of the law, they would arrive earlier at
their enjoyment of the estate; the intermediate estate be-
ing out of the way by reason of the assumed intestacy as
to that, the beneficiaries would come immediately into their
own; that is to say, the daughter would have her half at
once in fee, and the mother hers for life with remainder to
her child.
It is said sometimes that the trust statutes should be con-
strued rigorously, and that the law does not favor trusts of
this character; but this is not the general rule of construc-
tion established by the codes. On the contrary, the rule of
the code is that its provisions should be liberally construed.
The interpretation of the instrument should be benignant
and conservative, not destructive. Having ascertained the
intent of the testator, and here it is obvious, we should not
be too industrious in seeking reasons for its nullification.
This court is of opinion that the trusts created in and by
this instrument are valid, and that the distribution should
be decreed in conformity with the terms of the will.
The Rule Against Perpetuities is the subject of a note in 49 Am.
St. Eep. 117-138.
And the Severability of Perpetuities and Forbidden Trusts is the
subject of a note in 6i Am. St. Eep. 6.34-646.
80 Coffey's Probate Decisions, Vol. 1.
Estate of CHARLES McLAUGHLIN, Deceased.
[No. 3,061; decided June 16, 1885.]
Probate of Will — Setting for Hearing, Evidence of. — When it is
claimed that the clerk did not set a petition for probate for hear-
ing, a notice in fact issued by him and fixing the day is the best
evidence that the law has been complied with.
Probate of Will — Setting for Hearing. — Any Omission in matters
of form in fixing the date for hearing a petition to probate a will
may be disregarded by the court or ordered supplied when the proper
fact is made satisfactorily to appear.
Probate of Will. — The Publication of the Notice fixing the day for
hearing the probate of a will, when made in a weekly paper, must
appear on at least three different days of publication, but not neces-
sarily in three consecutive weekly issues.
Probate of Will. — A Creditor cannot Petition for a Revocation
of the probate of a will.
The Probate of a Will and the Appointment of an Executor are
distinct emanations from the will of the court, usually, though not
necessarily embodied in one order, but determined upon entirely dif-
ferent sets of facts.
Application by creditor to revoke the probate of a will.
A. B. Hotchkiss, for petitioning creditors.
L. D. McKisick, for executrix.
T. H. REARDEN, J. (in vacation sittings of Department
9, Probate). — This is an application, by petition, by Emile
Erlanger and others, setting forth that they are residents
of the city of Paris, and are creditors of the decedent, who
died in 1883, leaving a will, and being at his death a resi-
dent of this state.
That decedent's will is on file in this court; that it ap-
pears by the records that proceedings were had for the pro-
bate of the will; that witnesses touching its execution were
examined, and their testimony reduced to writing, on June
16, 1884; and that the court ordered letters testamentary
to be issued to Kate McLaughlin, the executrix named in
the will.
That the will was filed January 9, 1884, together with a
petition for letters testamentary.
Estate of McLaughlin. 81
That it appears from an inspection of the record that
the clerk did not set the petition for hearing; nor did the
court set it for hearing; that proper notice of said hear-
ing has not been given; that no proof was made at the
hearing that notice was given ; that a notice was published
in the "Daily Alta California," a daily newspaper, but
such notice was not published as required by law; that no
order of any court or judge was made directing the man-
ner, or number of times, of said publication ; that the only
proof of publication was an affidavit filed February 5, 1884,
which affidavit is insufficient to give the court jurisdiction,
as it does not show the year of publication, or that said
notice was published as often during the period of publica-
tion as the paper was regularly issued.
Petitioners therefore pray that the probate be revoked,
and for such other order as may be proper.
This petition is demurred to by the executrix. On the
hearing upon demurrer, the petitioners claimed that the
clerk should have made an order fixing the day of hearing,
and that no such order was in existence. It appeared, how-
ever, as a fact before the court, that the clerk had entered
the day of hearing in a calendar kept by him. This entry
was not transferred to the register, but there would seem to
be no reason why, if such entry had been made in rough
minutes, it could not be put into the more formal register,
either by the clerk himself or- by the court, when attention
had been directed thereto. But the best evidence in the
matter of the fixing of the day for probate is the notice is-
sued by the clerk, which is complete in that regard. Any
omission in matters of form should either be disregarded by
the court, or the omission should, by direction, be supplied,
when the proper fact is made satisfactorily to appear. Sec-
tion 1704, Code of Civil Procedure, provides only that or-
ders of the court or judge must be entered at length on the
minute-book of the court.
The next objection to the proceedings for probate lies in
the number of times the notice was published. The affi-
davit of proof of piiblications shows that a notice fixing
Tuesday, February 5, 1884, at 10 o'clock A. M., which no-
tice is dated January 9, 1884 (the date of filing petition for
Prob. Dec. Vol. 1—6
82 Coffey ^s Probate Decisions, Vol. 1.
probate), was published in the "Daily Alta California"
five times, to-wit: January 10, 15, 24, and 31, and Febru-
ary 5, 1884, which last day was the day set for hearing.
The notice was directed by the clerk to be published Thurs-
days and Tuesdays till date (of hearing). It is probable
that the notice was published oftener as there were more
Tuesdays and Thursdays than are indicated.
The provisions of the code in that behalf are:
"Notice of the hearing shall be given by the clerk by
publishing the same in a newspaper of the county; if there
is none, then by three written or printed notices posted at
three of the most public places in the county.
"If the notice is published in a weekly newspaper, it must
appear therein on at least three different days of publica-
tion; and if in a newspaper published oftener than once a
week, it shall be so published that there must be at least ten
days from the first to the last day of publication, both the
first and the last day being included": Code Civ. Proc.
1303.
The petitioners claim that section 1705 should be made
to supplement section 1303, in that it provides that "when
any publication is ordered, such publication must be made
daily, or otherwise as often during the prescribed period
as the paper is regularly issued, unless otherwise provided
in this title." The court or judge thereof may, however,
order a less number of publications during the period.
Counsel for executrix claim that it is "otherwise pro-
vided" in section 1303.
It will be seen that even in the case of a weekly news-
paper, section 1303 does not provide that the publications
shall be made in three consecutive weekly issues, but merely
"on at least three different days of publication."
Also, if the court or .judge can order a less number of
publications, "unless otherwise provided" by section 1303,
the order might be for less than three publications in a
weekly paper, and only one in a daily paper (should the
judge have discretion in the premises, which section 1303,
germane to the notice of probate, would clearly negative) :
McCrea v. Haraszthy, 51 Cal. 149, does not aid us. In that
Estate of IMcLaughlin. 83
case the court held that the statute supplemented the judge's
order, when the latter was silent ; and that if the notice was
published for the statutory time, it was good. Here the
question is, whether the publication is for the statutory
number of times.
At the same time, the general impression has prevailed
that a notice of probate in a daily paper should be pub-
lished daih^ as often as the paper is issued. I would be
loath to run counter to so general an opinion in any event ;
and, therefore, decline at this point, in the absence of the
usual judge of this department, to pass absolutely upon the
sufficiency of the notice. If such notice is bad, it behooves
the learned counsel for the executrix to discover and remedy
the error at the earliest possible moment, and to vacate the
proceedings in the matter of the estate, and commence de
novo from the notice by the clerk.
But the petition of these creditors is, as I regard it,
fatally defective in its point of attack. It seeks, as its declared
object, to avoid the will as probated; it does not strike at
the only point where a creditor can be interested in an es-
tate — the executorship or the competency of the executrix
(counsel for petitioners admitted, at the hearing, that his
clients had no quarrel with her, or her appointment, but
only denied the regularity of the probate). A creditor can-
not be affected injuriously by any testamentary dispositions
of his debtor. The debtor cannot posthumously hinder, de-
lay or defraud his creditor. An executor, once inducted
into his trust, must quoad the creditors, proceed on pre-
cisely the same lines as an administrator. He must pub-
lish notice to creditors, file exhibits, render accounts, allow
or reject claims, pay all dues to strangers to the estate, as
rigidly as if he were an officer of the court, appointed in-
dependently of the decedent's wish. If he be distrusted by
the creditor, application will be entertained to put him un-
der bonds ; if he be incompetent, the creditor may demand
his removal. The creditor may come in when the executor
is to be qualified, and object. But the creditor has nothing
to do with the will. The will attaches only to the dece-
dent's net estate, after all debts and expenses of administra-
tion have been liquidated: See Estate of Hinckley, 58 Cal.
84 Coffey's Probate Decisions, Vol. 1.
516. As to the will, the creditor is a stranger. It is no
affair of his : See,, also, Civ. Code, sec. 1270.
The probate of a will and the appointment of an execu-
tor are distinct emanations from the will of the court — ■
usually, but not necessarily, embodied in the one order, but
determined upon entirely different sets of facts.
Can the present petition be used to initiate an attack
upon the executrix, so as to nullify any notice to creditors
given by her whereby these particular creditors are barred
of their claims? The petition does not disclose the fact or
motive of the creditors, but it was hinted at upon the hear-
ing.
If the present proceedings are nugatory, then the only
way whereby the court can acquire properly jurisdiction
is by a petition for probate, or some application of that
kind, wherein sufficient facts are set forth to put the ma-
chinery of the court — its ordinary procedure — in motion.
The present petition is insufficient. By itself, it would
not warrant the court's proceeding anew to reappoint the
present executrix, or an administrator in her stead. De-
murrer is therefore sustained, with leave to petitioners to
amend.
Where a Notice of the Hearing of a Petition for the Probate of a
will is published only twice in a weekly newspaper, when the stat-
ute requires at least three times, an order admitting the will to
probate and appointing an administrator with the will annexed is
void: Estate of Charleblis, 6 Mont. 373, 12 Pac. 775. But a notice
is sufficiently proved to have been published in a daily paper for
the requisite period by an affidavit showing that it was published
in a paper purporting by its name to be a daily paper, for eleven
days: Crew v. Pratt, 119 Cal. 139, 51 Pac. 38. And if a decree re-
cites due service of notice by publication or posting, the recital is
sufficient to prove the same as against a collateral attack: Crew v.
Pratt, 119 Cal. 139, 51 Pac. 38.
Estate of Solomon. 85
Estate op JACOB SOLOMON, Deceased.
[No. 3,881; decided July 22, 1886.]
Will Contest — Burden of Proof. — One who contests the probate of
a will has the burden of proof to establish the ground of contest.
Insane Delusion — Wrong Conclusions as Evidence. — If any fact
exists as a foundation for a testator's belief that a child borne by
his wife is not his, he cannot be said to be the victim of an insane
delusion, however mistaken he may be in his conclusion.
Insane Delusion. — A Person may Act on Weak Testimony, yet be
under no delusion.
This was a contest filed to an application for the pro-
bate of a document, presented as the last will of Jacob Sol-
omon, deceased. The will and a petition for the admission
to probate were filed on January 6, 1885, by Lazarus Solo-
mon, named in the instrument as executor. On the eleventh
day of February, 1885, there was filed the written contest
(as amended) of Jennie Asch, the person referred to by
testator in the seventh clause of his will, hereinafter given.
Six grounds of contest were specified by contestant, but
the only ground covered by the opinion of the court be-
low is the "second" one, stated in the contest as follows:
"That at the time of signing of the said alleged will, the
said Jacob Solomon was laboring under and controlled by
the insane delusion that this contestant was not the child
of said deceased."
This ground of contest is aimed at the seventh clause of
the will, which is in the following language : " I hereby
declare that, prior to my coming to California, I was mar-
ried to a woman named Hannah — whose other name I have
forgotten ; she was divorced from me by a decree of the
Twelfth District Court of the State of California, on the
11th day of August, 1860 ; during our marriage a child was
born of her; this child was not begotten by me, and was
not my child ; she is now living in this city ; her present
name is, I believe, Mrs. Jennie Von Stratton; I do not make
in this my will, and do not intend to make, any provisions
for said child."
86 Coffey's Probate Decisions, Vol. 1.
The important fact in the case turned out to be the date
of the marriage of the testator with the contestant's mother,
as upon this hinged the testator's belief with respect to con-
testant's birth. The exact date of the marriage could not
be shown, and it w^as capable of being fixed only by refer-
ence to certain events. The court found that the marriage
took place at the time of the Jewish feast of "Hanucah,"
which was shown to have fallen during the Christian year
1854, in the tenth month of the Jewish calendar — the last
half of the month of December, 1854, and the first half of
the month of January, 1855. The birth of the child took
place on the following first day of July, 1855, about six and
one-half months after the marriage. It also appeared that
about two months previous to the birth of contestant, the
testator being away from home on business, had sent money
to his wife, but that when he was informed afterwards of
the date of the child's birth, he declared that the child was
not his; that subsequently he came to California, his wife
afterward following and obtaining here a divorce against
him by default, the complaint for divorce fixing the date of
marriage as " day of August, 1854," and alleging the
birth and existence of the child.
Geo. Flournoy and J. B. Mhoon, for contestant.
K. C. Harrison (Jarboe & Harrison), for proponent.
COFFEY, J. The burden of proof is on contestant to
establish ground of contest. After a re-examination of the
evidence, I am of the opinion that the contestant's case is
not supported by the preponderance of proof. Whether the
statement of the testator was well or ill based, there was in
the order of nature, according to the testimony in this con-
test, some reason for his belief. He knew when he was mar-
ried; he knew when his daughter was born; hence he could
have inferred the fact he alleges in the paper propounded.
However much he might have been mistaken in the conclu-
sion at which he arrived, if any fact existed as a foundation
therefor, he was not the victim of insane delusion. A per-
son may act upon weak testimony, yet be under no delusion
(]\Tyr. 15), and there does not appear to me to be sufficient
evidence in support of the statement that Jacob and Han-
Estate op Solomon. 87
nail were married in "the latter part of November," 1854.
and even then it would be a very close call for the child ; the
probable time, I am constrained to conclude, was near the
feast of "Hanucah," which began about the middle of De-
cember, 1854, and lasted until January 1, 1855; this was
in or about the month of "Tebet," the tenth month of
the Jewish calendar, corresponding to the English calen-
dar months of December-January — two weeks of each. If
it be true, as I take it from the testimony, that Jacob and
Hannah were united in marriage at that time, in December,
1854, the birth of a child July 1, 1855, was sufficient pre-
mise for the conclusion announced in the seventh clause of
the will — the subject matter of this contest.
Let an order be drawn admitting the will to probate.
A Delusion Which will Destroy Testamentary Capacity must spring
up spontaneously in the mind, without extrinsic evidence of any
kind to support it. If it has any foundation in fact, if it has any
evidence, however slight, as its basis, it is not an insane delusion.
One cannot be said to be under such a delusion if his condition of
mind results from a belief or inference, however irrational or un-
founded, drawn from the facts which are shown to exist: Estate of
Scott, 128 Cal. 57, 60 Pac. 527; In re Cline's Will, 24 Or. 175, 41
Am. St. Kep. 851, 33 Pac. 542; Skinner v. Lewis, 40 Or. 571, 67 Pac.
951.
False logic or faulty ratiocination is far from the manifestation
of insanity, so long as the process is formally correct, not inco-
herent or inconsequential. Hence if a wife has evidence, however
slight, on which to base a suspicion of her husband's unfaithfulness,
and has no settled conviction on the subject, her suspicion does not
amount to an insane delusion: Estate of Scott, post, p. 271. But
where a man wills his entire estate to his children of a former mar-
riage because he believes that his present wife is unfaithful and
his children by her illegitimate, which belief has no evidence to
support it, the will may be avoided as the product of an insane
delusion: Johnson v. Johnson, 105 Md. 81, 121 Am. St. Eep. 570, 65
Atl. 918.
88 Coffey's Probate Decisions, Vol. 1.
Estate of JOHN LANE, Deceased.
[No. 3,490; decided August 7, 1884.]
Letters of Administration. — The Order in Which Letters of admin-
istration are granted is a matter of statutory regulation, and to the
statute the court must resort for decision.
Succession — Vesting of Estate in Heirs. — Heirs succeed to the
property of their intestate immediately upon his death; then their
interest becomes vested, subject only to the lien of the administra-
tor for the payment of the debts of the decedent and the expenses
of administration.
Succession. — The Next of Kin Entitled to Share in the Distribution
of the estate of an intestate are such only as are next of kin at the
time of his death.
Letters of Administration — Next of Kin. — Where a man dies intes-
tate, and subsequently his widow dies before letters are taken out
on his estate, her niece is not entitled to administer his estate as
next of kin, for she was not such when he died.
Charles F. Hanlon, for Miss Margaret Murray.
Geo. D. Shadbiirne and Mr. W. A. Plunkett, associate,
for absent heirs.
T. E. K. Cormac, for Public Administrator Roach.
J. ]\I. Burnett, amicus curiae.
COFFEY, jr. John Lane died intestate, leaving solely
surviving him his widow Ellen, who, shortly after his death
and before letters were taken out on his estate, died, leaving
no issue nor parents. Now comes Margaret Murray, spin-
ster, niece of Ellen Lane, and claiming to be her heir at
law, and files a petition for letters of administration on the
estate of the first aforesaid John Lane, which petition is-
contested by the public administrator, who claims that he
is entitled, under the statute (Code Civ. Proc, sec. 1365).
The question before the court is : To which of these antago-
nistic applicants should letters issue?
The order in which letters of administration are granted
is a matter of statutory regulation, and to the statute we
must resort for the rule of decision. This principle should
Estate of Lane. 89'
be borne in mind when examining the authorities cited from
other states, for unless they interpret statutes similar to
our own they carry no weight. Section 1365 of the Cali-
fornia Code of Civil Procedure provides that relatives of
the deceased shall be entitled to administer only when they
are entitled to succeed to his personal estate, or some por-
tion thereof; and the section then fixes the order in which
letters shall be granted, the seventh subdivision being "the
next of kin entitled to share in the distribution of the es-
tate." It has been held from the earliest history of our
jurisprudence that the heirs succeed to the property of the
intestate immediately upon his death; then their interest
becomes vested, subject only to the lien of the administra-
tor for the payment of the debts of the intestate and charges
and expenses of administration. It follows from this in-
dependent of the statute, that "the next of kin entitled to
share in the distribution of the estate" must be the persons
who are "next of kin" at the death of the intestate. Miss
Margaret Murray was not next of kin to John Lane when he
died : how can she become so after his death ? The first part
of section 1365, Code of Civil Procedure, provides that the
relatives of the deceased (not the relatives of a deceased
heir of the deceased) shall be entitled to administer only
when they are entitled to succeed to his personal estate.
Miss Murray was not a relative of the deceased John Lane;
she was not an heir at law; if her aunt Ellen had died be-
fore John Lane, Margaret would come in for nothing. Miss
]\Iurray will ultimately obtain a portion of the estate, but
only as an heir at law or "next of kin" of her aunt Ellen,
if it be established in that estate that she is so related. Her
interest comes and is worked out through that estate and
in no other way. There is no descent cast by right of rep-
resentation in this case; the law provides for such only
where the common relative dies before the intestate. It
would seem, thep, that as Miss Margaret IMurray was not a
relative of the decedent, John Lane, and can claim only
through the estate of her deceased aunt, Ellen Lane, she
does not come within the statute, and hence her application
must be denied.
90 Coffey's Probate Decisions, Vol. 1.
In Estate of Wakefield, 136 Cal. 110, 68 Pac. 499, a mother and
daughter perished in a wreck, the daughter dying first. The daugh-
ter died intestate, leaving her mother sole heir. Her mother left a
last will bequeathing her property to her two sons. It was held
that the sons were not entitled to administration on the estate of
the daughter, under section 1365, California Code of Civil Procedure,
as they became possessed of her estate, not as her heirs, but by rea-
son of being devisees under their mother's will.
Estate of CHARLES SEALY, Deceased.
[No. 3,186; decided July 5, 1884.]
Jurisdiction — Residence of Deceased. — The Issuance of Special
Letters of administration to the public administrator in one county
is not a final determination of his right to general letters of admin-
istration as against the public administrator of another county.
Jurisdiction — Residence of Deceased. — The Issuance of Special
Letters of administration leaves the jurisdictional facts still to be
ascertained prior to the issuance of general letters.
Jurisdiction — Residence of Deceased — Conclusiveness of Deter-
mination. — Where the public administrators of two counties each file
an application for letters of administration, there being a doubt as
to which county the decedent was a resident of, and one applicant
contests the application of the other, the adjudication of the court
that it has jurisdiction is a bar to the contestant's own application
in the other county.
John A. Wright, for San Francisco public administrator.
E. C. Robinson and W. R. Davis, for Alameda public ad-
ministrator.
J. M. Seawell, for Robert Sealy, brother.
AY. A. Plunkett, for absent heirs.
Barrows & Dare, for ''somebody in shadow,"
COFFEY, J. Charles Sealy died in San Francisco on
February 22, 1880, he having moved over to Oakland, Ala-
meda county, about four months before his death, intending
to take up his residence there, in order to avoid jury duty
Estate of Sealy. 91
in San Francisco, declaring that he would never live in San
Francisco again.
On February 23, 1884, Philip A. Roach, public adminis-
trator, filed in the superior court of the city and county of
San Francisco his petition for special letters of administration
upon the estate of Charles Sealy, and he was appointed
special administrator on February 25th. At about the same
time, Louis Gottshall, public administrator of Alameda county,
was ordered by the superior court of that county to take
charge of the estate therein, Charles Sealy having resided in
Alameda county. At the same time Mr. Gottshall filed his
petition in the Alameda superior court for general letters of
administration. Subseciuently he filed a petition in the
superior court of San Francisco to set aside and revoke the
special letters of Mr. Roach, which petition was denied. On
February 28th Mr. Roach filed in Alameda county his written
objections to the application of Mr. Gottshall for letters of
administration, and upon the issues of fact raised by the
objection the case was heard and tried before that court.
On i\Iarch 31st the Alameda superior court. Noble Hamilton,
judge, rendered a decision in favor of public administrator
Gottshall, but, disregarding this decision, public administrator
Roach insisted on the hearing of his petition in the San
Francisco court for general letters. When the matter came
up for hearing the attorney for the Alameda administrator
filed objections to the application of the San Francisco
administrator, and pleaded in bar, as a final adjudication
upon the question of residence, the decision of the Alameda
court. The points of the argument were, whether the Ala-
meda adjudication could be pleaded in bar, and, if so pleaded,
what would be its effect.
Messrs. Robinson and Davis, for Alameda administrator,
filed herein a brief of forty-three pages; Mr. Seawell, for
Robert Sealy, one of twenty pages; and Messrs. Wright and
Cormac, for San Francisco administrator, one of twelve
pages. If attorneys expect their learned and long essays and
reviews to be well considered, their citations verified, and
their conclusions cogitated and considered by tlie court, thev
92 Coffey's Probate Decisions, Vol. 1.
must be content to wait awhile for a decision. Hence the
delay in deciding this controversy.
The issue of special letters to the public administrator of
San Francisco was not a final determination of the rights of
the parties herein. His function is "to collect and take
charge of the estate of the decedent," and to preserve the
same, pending proceedings for the appointment of a general
administrator : Code Civ. Proc, sec. 1411.
The jurisdictional facts were still to be ascertained, prior
to the issue of general letters. The first inquiry upon such
an application was had in Alameda county. To the court in
that county went the San Francisco public administrator,
and, opposing the application of the Alameda administrator,
controverted the latter 's right to letters, and in that contro-
versy was worsted. He must abide the event of a contro-
versy to which he was a voluntary party. There was an
issue to which the parties here were parties; they had their
day in court ; the facts were investigated and found in favor
of that jurisdiction ; and the judgment is here regularly and
properly pleadable, and pleaded in bar of this court's action.
Let an order be drawn accordingly.
Under Some Circumstances, Two or More Courts may have Juris-
diction to entertain an application for letters testamentary or of
administration. When such is the case, and one of the courts re-
ceives an application and assumes jurisdiction, that jurisdiction is
exclusive, for there cannot be two valid administrations of an es-
tate at the same time. The court first applied to for letters has ex-
clusive authority to determine whether or not it has jurisdiction,
subject to review upon appeal, and the other courts must abide by
its determination of the question. The statutes of many states pro-
vide that in certain cases the courts in which application is first
made has exclusive jurisdiction of the settlement of the estate,
and under this rule, the first filing of a petition for letters con-
stitutes the "first application" for them. The appointment of an
administrator in one county is without validity while a prior ap-
pointment in another county is in effect. And a decree escheating
property to the state is ineffectual when the court of another county
has already granted letters of administration: 1 Eoss on Probate Law
and Practice, 226, citing Dungan v. Superior Court, 149 Cal. 98, 84
Pac. 767; Estate of Davis, 149 Gal. 485, 87 Pac. 17; Estate of Griffith,
84 Gal. 107, 23 Pac. 528, 24 Pac. 381; Oh Chow -v. Brockway, 21 Or.
440, 28 Pac. 384; Territory v. Klee, 1 Wash. 183, 23 Pac. 417.
Estate of Pickett. 93
Estate op MICHAEL PICKETT, Deceased.
[No. 4,371; decided November 7, 1885.]
Words and Phrases.— The Terms "Surviving Wife" and "Widow"
are synonymous.
Appointment of Administratrix. — When a Widow Marries, she ceases
to be the widow of her first husband; and then being a married
woman, she loses her right to administer his estate, or to nominate
an administrator.
This was a contest between two applicants for letters of
administration, one being the nominee of the decedent's
widow, who had remarried, and the other the public admin-
istrator of San Francisco, Philip A. Roach.
Wright & Cormac, for Public Administrator Roach.
Burnett & Bartlett, for O'Connell, nominee of former
widow.
Geo. D. Shadburne, for absent heirs.
COFFEY, J. When Mrs. Pickett married Minihan, she
ceased to the widow of the decedent and lost her right to
administer. Being a Inarried woman she had no right her-
self, and had nothing to confer upon her nominee, 'Connell.
The terms "surviving wife" and "widow" are synonymous,
and are so treated in the statute and in the decisions, the
supreme court commonly employing the term "widow" in
the same signification as ' ' surviving wife. ' ' I have carefully
conned and considered the brief of counsel for Mrs. Minihan 's
nominee, and have examined all the authorities accessible
with a view to discerning the distinction drawn by them be-
tween the principles involved in the authorities cited by
counsel for absent heirs, and the point raised here; but my
conclusion is that the sense of the statute, and the result of
the decisions of the supreme court, is to exclude the widow
upon her second marriage from the right of nomination.
The Estate of Cotter does, as counsel contend, settle the
point that a nonresident widow is entitled to nominate
although disqualified from serving, because, as the court
94 Coffey's Probate Decisions, Vol. 1.
said, the right to nominate "does not depend upon the
matter of residence," but it does depend upon the status
of the nominator. The court there refers to "the widow of
the deceased," "the right of the widow to nominate" (54
Cal. 217), thus treating "surviving wife" and "widow" as
convertible terms. Mrs. Minihan is a married woman, and,
as such, could neither administer nor nominate ; being a
married woman, how can she be accounted the "widow"
of her predeceased husband?
I have searched the dictionaries and the decisions in vain
for relief in this extremity. In the circumstances, her nom-
ination is "of no legal consequence whatever": Estate of
Morgan, 53 Cal. 243.
Counsel for the nominee express their assurance that
before the court will refuse this claim of right in Mrs. IMini-'
han, it will be fully statisfied that its decision expresses the
intention of the legislature, and that the court will resolve
its doubts, if any there be, in favor of a class whose rights
it is especially organized to defend and protect.
In the Estate of Flaherty, decided February 11, 1884.
this court, in the conclusion it reached, justified the assurance
here avouched by counsel. That case was elaborately argued
by John A. Wright, Esq., for the public administrator, and
]\Iessrs. Jarrett and C. W. Bryant for one claiming to be a
nonresident widow, although in marital relations with an-
other man, to whom she was ceremonially united during the
lifetime of Flaherty (being under the impression that he
was dead), and with whom she continued to cohabit after
she learned that Flaherty was still in existence, and until
his death and up to the time of making her nomination, and
thereafter, and bearing the name of the second supposed
spouse; but this court held that the second marriage was
void, as she was then the lawful wife of Flaherty, and at his
death as "surviving wife" or "widow" entitled to nominate.
Conversely, it should seem, if she was, as counsel there co'n-
tended, under the law of New York, the wife of another at
the time of application, she would be disentitled to nominate.
After full consideration I cannot discover any doubt of the
intention of the legislature. If hardship result, the legis-
Estate of Neustadt. 95
lature is responsible, not the court. As was said in the
Estate of Boland, 43 Cal. 643 (in which estate one of the
counsel here, W. C. Burnett, Esq., was concerned), "what-
ever right she (the quondam widow) may once have
had .... she lost when she lost the status upon which the
right depended."
Disregarding the demurrer, the petition of Mrs. Minihan's
nominee, Patrick O'Connell, should be and is denied.
The Statute of California, upon which the decision in the princi-
pal case is based, has been amended. As the law now stands in that
state, and in many other states, the marriage of a woman seems to
have nothing to do with her competency as an executrix, as mani-
festly it should not. She is entitled to administer on the estate of
her deceased husband, though married to another man: Estate of
Dow, 132 Cal. 309, 64 Pac. 402.
Estate of AUGUSTA R. NEUSTADT, Deceased
[No. 6,608; decided August 16, 1884.]
Administrator's Sale — Release of Bidder. — If a bidder at a pri-
vate sale by an administrator states that she has not had time to
examine the title because of the shortness of the notice, and does
not wish to be bound unless the title is good, to which the admin-
istrator assents, she should be released from her bid when her coun-
sel advises against the title, whether or not his view of the law is
correct.
This was an application by the administrator to confirm a
private sale of realty returned by him. The application was
opposed by the purchaser.
Wm. H. Sharp, for administrator.
Gunnison & Booth, for purchaser, opposing.
COFFEY, J. As suggested at the hearing, the only
ground which the court deems it necessary to consider is :
Whether the purchaser, who now seeks to be excused, was
misled, inadvertently or otherwise, into inaking her bid. She
<)6 Coffey's Probate Decisions, Vol. 1.
sets up in her opposition "that at the time of the delivery of
said bid to said administrator she stated that by reason of
the short time of said notice she had not time to examine the
title to said property, and for that reason did not wish to be
bound by the bid if the title thereto was not good, ' ' to which
proposition she avers the administrator assented; the admin-
istrator joins issue upon this allegation.
If the bidder had been granted sufficient time, or if she
had not been induced to make the bid by reason of the prom-
ise of the administrator that she would have ample time to
examine title, she would not have made the offer, acting upon
her attorney's advice as to condition of title.
It is immaterial, in my judgment, to consider the sound-
ness of this advice, unnecessary for me to adjudicate upon
the attorney's accuracy of judgment; enough to know the
purchaser's conduct would have been influenced thereby.
Did the administrator mislead her? Not intentionally, per-
haps, but the evidence seems to show that the required op-
portunity of examination was not accorded to her; if it had
been she would have acted differently from what she did,
so she testifies; and whether her counsel's view of the law
be sound or unsound, it was the motive to her act, and ex-
cuses her from the performance of a purchase predicated
upon a promise that she should have time for full examina-
tion.
Upon the evidence as to this point, and upon no other
ground, is the opposition sustained.
Purchasers at an Administrator's Sale are usually subject to the
maxim of caveat emptor, and the deed can contain no warranty of
title: Towner v. Eodegeb, 33 Wash. 153, 99 Am. St. Eep. 936, 74 Pac.
50; Miller v. Gray, 136 Cal. 261, 68 Pac. 770.
Estate of Fisher. ' 97
Estate of CAROLINE H. FISHER, Deceased.
[No. 3,000; decided December 23, 1884; January 8, 1886.]
Executors — Duty to Collect Assets. — It is not only the duty of an
executor to seek to recover assets of the estate, but should he forbear
the endeavor he would be liable as for malfeasance or nonfeasance.
Executors — Good Faith in Bringing Action. — Where a suit brought
by an executor presented issues of a "serious" and ** difficult" char-
acter, and occupied many days in trial, a nonsuit being refused, it
must have afforded grounds to the executor's judgment in its institu-
tion and prosecution.
Executors — Eight to Counsel. — An executor, acting in good faith,
is entitled to aid of counsel in all litgation concerning the estate.
Executors — Allowance for Counsel Fees. — It being an executor's
duty to defend or prosecute for the estate in all matters where in
good faith he believes it necessary, he should be reimbursed though
the suit be lost.
An "Exhibit and Account" Presented by an Executor does not
Operate as an Estoppel upon the hearing and settlement of a subse-
quent account by him; the items of the first account are impeachable,
and the settlement of such account does not impart a dignity not
inherently belonging to the account.
Accounts. — "Where an "Exhibit" and "Account" Presented by an
Executor was merely "experimental," to raise certain questions as
to previous acts of the administration, the executor will, under in-
structions as to his rights, be ordered to render another account, which
shall have the quality of finality.
Counsel Fees. — There is no Authority in the Probate Court to allow
an attorney appointed by the court under section 1718, Code of Civil
Procedure, compensation for services performed in a suit brought by
the executor. The attorney's remuneration must be restricted to pro-
ceedings before the court of administration.
This was an application for the settlement of an account
filed by executor, Selden S. Wright. A contest was filed
on the part of Estelle L. Dudley, a daughter of testatri.x, and
al^o a grantee under a certain deed made by testatrix shortly
before her death, which deed was the subject matter of the
suit brought by the executor, referred to in the opinion of
the court. The contest was raised respecting the expenses
of this suit, and presented the question of the executor's
duty to bring the suit, and his good faith in the matter.
Prob. Dec, Vol. I— 7
98 Coffey's Probate Decisions, Vol. 1.
Under the first opinion of the court (December 23, 1884),
a new accounting by the executor was directed, and, upon
the presentation of this second account, the questions dis-
cussed in the first opinion were again raised and reargued ;
and the question as to the right of an attorney appointed
by the court in a probate proceeding to have compensation
Per services in connection with matters not taking place in
and before the court of administration was more particu-
larly presented. The second opinion of the court (of Janu-
ary 8, 1886), rendered upon this new accounting, reconsid-
ered all the questions raised on the first account, and reiter-
ated the former decision ; therefore, only that part of the
second opinion is given which especially considers the question
of the right of compensation of the attorney appointed by the
court. The suit referred to in the opinion of the court was
a civil action begun and tried in department No. 5 of the same
court.
M. G. Cobb and Geo. T. Wright, for the executor.
E. J. McCutchen, for minor heir.
Daniel Titus and James C. Cary, for contestant.
COFFEY, J. Counsel must be content with a summary
of conclusions of the court, as I have no leisure to extend
the reasoning, although I have well considered the case and
the arguments.
1. The duty of the executor:
It was not only the duty of the executor to seek to recover
assets of the estate, but had he forborne such endeavor, he
would have been liable as for malfeasance or nonfeasance :
Code Civ. Proc, title 11 (of part 3), c. 8, Powers and Duties
of Executors, etc. ; sees. 1581 et seq. ; c. 10, Accounts, etc. ;
art. 1, sees. 1616 et seq.
The discussion as to the bona fides of the suit against the
Dudleys seems to be concluded by the opinion or "decision"
of Judge Hunt in Wright v. Dudley, which says: "While
the proceedings in this case were hastily commenced, yet I
am not prepared, from all the evidence in the case, to say
that they were instituted in bad faith"; also, the "decision"
Estate op Fisher. 99
says that "the questions of law presented on the trial were
difficult, and in some respects serious, and their solution by
no means an easy matter." A case presenting issues of a
"serious" and "difficult" character, and occupying many
days in trial, in which a nonsuit was refused, must have
afforded some grounds to the judgment of the executor for
its institution and prosecution. If the prosecution were with-
out merit, it would seem inequitable to cast the defense in
any costs; but Judge Hunt decided, for the reasons sug-
gested, to wit, the difficulty and seriousness of the questions,
to apportion the costs of that action.
The questions here argued with great elaboration by coun-
sel for contestants seem to me disposed of by the department
presided over by Judge Hunt, in which the suit of Wright
V. Dudley was determined.
As to the haste with which the suit was brought : It was
the duty of the executor to proceed with diligence, as delay
might have incurred the loss of property by enabling the
grantee to part with it to a purchaser who could not be pur-
sued.
The court considers that the action of Wright v. Dudley
was begun and carried on by the plaintiff executor as a duty,
and that the expenses incurred and obligations assumed were
contracted in good faith. An executor acting in good faith
is entitled to the aid of counsel in all litigation concerning
the estate: Code Civ. Proc, sec. 1616.
It being the duty of a representative to defend the estate
against claims, or to prosecute suits upon claims, which he
believes should be defended or prosecuted, in the exercise of
his honest judgment, he should be reimbursed, even though
the suit be lost: Re Miller. 4 Redf. 304.
Mr. McCutchen having appeared in the litigation at the
Instance of the executor, ;md having rendered service, is en-
titled to be considered in this connection : Estate of Simmons,
43 Cal. 543.
The second objection and exception is overruled and de-
nied.
100 Coffey's Probate Decisions, Vol. 1.
2. "The Exhibit and Account" of May 3, 1884:
The paper indorsed "Exhibit and Account of Executors,"
filed May 3, 1884, does not operate an estoppel upon the ex-
ecutor, nor does the "Order Settling Exhibit and Account,"
filed May 16, 1884, give a dignity to that paper to which it
is not inherently entitled. The items thereof may now be
impeached. If counsel deem it necessary, let the order set-
tling it be set aside.
3. "The Exhibit and Account of Executor," filed August
19, 1884:
I understood from his remarks upon the hearing that the
presentation of this paper by the executor was "experi-
mental," merely to raise the points as to whether he had
any claims to include in an account. Let him now, there-
fore, under the instruction of this opinion as to his powers,
duties and rights, prepare and file an account of his admin-
istration from the beginning, and, when such account is pre-
sented and filed, a day will be set for the hearing, or the ac-
count sent to a referee, as to the respective counsel may seem
expedient.
The prayer of the "Petition and Report accompanying
Exhibit and Account" should be formally denied, with leave
to the executor to file a first and final account, as indicated
in the foregoing opinion.
OPINION on second APPLICATION.
The argument of the counsel, Mr. Titus, in regard to the
compensation of the attorney for the minor heir in the trial
of Wright V. Dudley, has convinced this court that it is not
competent to consider such claim under section 1718, Code of
Civil Procedure, and that the attorney's remuneration must
be restricted to probate proceedings. As attorney for minor
heirs, there is no authority in the court to allow him for
services rendered in the action of Wright v. Dudley; and
for the services he did render, he must look to the executor.
However harsh this may seem, I am satisfied, upon reargu-
ment and reflection, that it is the law.
Estate of Shillaber. 101
Estate of CYNTHIA HOFF SHILLABER, Deceased.
[No. 4,015; decided January 7, 1886.]
Special Administrator. — It is the Duty of a Special Administrator
to Collect and preserve, for the executor or administrator, all person-
alty and choses of every kind belonging to the decedent and his
estate; also to take the charge of, enter upon and preserve from dam-
ages, waste and injury the realty.
Special Administrator — Actions by and Against. — For all purposes
of the performance of the duty of a special administrator to collect
and preserve the assets, real and personal, of the decedent, and for
all necessary purposes, he may commence and maintain or defend
suits and other legal proceedings, as in the case of a general adminis-
trator.
Special Administrator — Accounts. — The Accuracy of a special ad-
ministrator's account will be tested by strictly legal methods, under
the rule of section 1415, Code of Civil Procedure, and his duty as
therein found, and as defined in the first and second headnotes above.
Special Administrator — Allowance for Clerical Assistance. — In this
case the court allowed the special administrator for clerical help in
collection of rents, and keeping the accounts, four per cent upon the
collections; but reserved the right in other cases to deal differently
with a similar item.
Special Administrator. — An Item of Expense for Detective Service,
claimed to be incurred for the estate's interest, was in this case dis-
allowed by the court.
Special Administrator — Expenditure on Personalty. — Until distrib-
ution, an article of personalty specifically bequeathed by decedent
must be treated as part of the estate, and not allowed to deteriorate.
Hence, where the special administrator has made an expenditure upon
such article to prevent its deterioration, the item should be allowed
in his account.
An Executor is Entitled to the Assistance of Counsel, Even When
He is Himself an Attorney; and he will be granted an allowance for
counsel employed by him; but in dealing with the question, the court
will be mindful of the fact that the executor is an attorney of ability.
The Administrator was Allowed Counsel Fees, Although His Coun-
sel was His Law Partner, in the case at bar, it being proved that in
this service such counsel was not the business partner of the admin-
istrator.
Special Administrator — Expenditures for Business Trip. — Where a
special administrator has in good faith journeyed to a distant state
upon business of the estate, an allowance will be made to him therefor;
102 Coffey's Probate Decisions, Vol. 1.
but he will be entitled to no greater remuneration than, in the court's
opinion, would be proper for the dispatch of the business of such
journey.
Special Administrator. — For the Compensation of a Special Admin-
istrator, the court can accept no other standard than that furnished
by section 1618, Code of Civil Procedure (for general administration).
Commissions are here allowed on the amount accounted for, includ-
ing an additional sum of one-half of such commissions for extra
service, as permitted under such section.
Devisee — Right to Possession. — A Tenant of Realty, specifically de-
vised to her for life, is not entitled to possession on testator's death.
But as she will be entitled to the rents, issues and profits upon dis-
tribution of the estate, her intermediate occupancy might not ordi-
narily challenge criticism; yet aliter, if objection made.
Administrator — Liability for Rents When He Places Devisee in Pos-
session. — In the face of objection an administrator will be held ac-
countable for the rental value of realty specifically devised by his
testator, which he has placed in the possession of the devisee. But
where the premises contained certain articles of personalty, which
the testator directed to have left there and which the administrator
claimed should be cared for, the court will take into account the care
bestowed upon the property by the devisee.
This was a contest to the settlement of the account of the
special administrator. Mr. Carroll Cook, the special admin-
istrator of the estate (also the nominated executor of de-
cedent's will), filed his first and final account as special ad-
ministrator upon the twenty-fourth day of September, 1885 ;
and on October 5, 1885, written objections thereto were filed
by Frances H. Lowndes (a sister of testatrix) in her own
right as heir of testatrix, and as guardian of the person and
estate of Theodora Lowndes, a minor, interested in the es-
tate. The objections were exhaustive, but only those are
here (and in the decision) explained which involved some
principle or question of law; those not explained being the
subject only of some controverted question of fact.
As to the first objection, it appears that the administra-
tor had made an expense of $320 for gardening, etc., with
respect to the premises referred to by the court in the
consideration of the tenth objection. The objection to this
item, so far as it involved a question of law, was that the
administrator was blowing hot and cold; claiming that the
realty upon which the expense was alleged to have been
Estate of Shillaber. 103
made had been specifically devised by testatrix, and there-
fore the title had vested in the devisee, and the premises
constituted no part of the estate; while, on the other hand,
contending that the property belonged to the estate for the
purpose of its care and preservation during the administra-
tion. The court having subsequently, under the tenth ob-
jection, held that the premises were part of the estate, and
the administrator accountable for their rental value, in ac-
cordance with the reason of that ruling, allowed this item
as proper from a legal point of view, the property of the
expense having been first determined by the court.
The fifth objection was to an item in the account for
services of a detective employed by the administrator and
claimed, to be in the interest of the estate and the adminis-
tration. The sixth objection was to an item of $60, for
repairs to an organ removed by the administrator from the
place of its situs at testatrix's death, on account of its con-
stant deterioration from want of care, climatic influence, etc.
The objection was on the ground that the article had been
specifically bequeathed, and the legatee could only claim
the gift in the condition in which it was left by the testa-
trix, and that it was not the function of the administrator
to keep property for legatees in any particular state of
preservation.
The seventh objection was to an item of $500, charged as
fees of the attorney tor the administrator. The objection
was on the ground that the attorney was a brother and law
partner of the administrator; furthermore, that the admin-
istrator was himself an attorney, and hence there was no ne-
cessity for getting the usual professional assistance, and that
even here much of the work of the administration was done
by the administrator and not by the attorney.
The tenth objection was to an item of $2,500, placed at
the end of the credit side of the administrator's account
as a charge by him as administrator to cover all his services
in the special administration of the estate, and to include
all his expenses in making a journey to New York (referred
to in the opinion) to attend to certain litigation and in-
terests there in behalf of the estate, and also including com-
104 Coffey's Probate Decisions, Vol. 1.
pensation for time and labor with respect to certain suits
to which the estate was a party.
Wm. Hoff Cook, for special administrator.
Carroll Cook, special administrator, in pro. per.
W. S. Wood and B. Noyes, for objectors.
COFFEY, J. It is the duty of the special administrator
to collect and preserve for the executor or administrator all
the goods, chattels, debts and effects of the decedent, all
incomes, rents, issues and profits, claims and demands of
the estate; he must take the charge and management of,
enter upon and preserve from damage, waste and injury
the real estate, and for any such and all necessary purposes
may commence and maintain or defend suits and other legal
proceedings as an administrator: Code Civ. Proc, sec. 1415
The account here under examination runs from and in-
cluding February 26, 1885, to and including September 1,
1885 — say six months. Its accuracy must be tested by
strictly legal methods, under the rule of the foregoing cited
section of the code.
First Objection : Payler payments, numbers 7, 30, 46, 64,
78, 92, 99 : disallowed, i. e., objection overruled : Estate of
Miner, 46 Cal. 572.
Second Objection : As to voucher 5 : objection overruled ;
item allowed. As to vouchers 23, 26, 28, 45, 56, 71, 91 and
96: "When in the care and management of a large estate,
it is shown to be impracticable to do without clerical as-
sistance to collect rents and keep accounts, the court usually
makes some allowance, but the exercise of this discretion
should be guarded. The executor is expected to perform
some labor, and to use the utmost economy consistent with
the protection of the estate intrusted to his custody and
care. I have never made such allowances without rigorous
proof of necessity, even when no objection was interposed
but such allowances have been made in probate courts re-
peatedly and in such circumstances as are suggested in this
case. Even if proper, however, the charge is out of pro-
portion to the result. I shall allow at the rate of four per
cent upon the collections; reserving to myself the right in
other accounts to deal otherwise with any similar item, and
Estate of Shilljvber. 105
acting now upon the evidence before me and my present
view of the duty.
Third Objection : Overruled under the evidence.
Fourth Objection : Overruled under the evidence.
Fifth Objection: Sustained. The court cannot under-
stand the reason or necessity in such a case for such a
charge.
Sixth Objection : Until distribution the organ must be
treated as part of the estate, and not allowed to deteriorate.
Objection disallowed and overruled.
Seventh Objection: Attorney's fee, $500. The executor
is entitled to such assistance, even when he is himself an at-
torney, and he needs other counsel. In this case, while he
has been actively participant in all the proceedings, yet the
counsel claiming the allowance has done, before the court,
work entitling him to consideration, and his evidence is that
in this service he is not a business partner of the executor.
The executor, however, is a lawyer of competency and ex-
perience; that he must expect, hereafter, that the court will
consider this fact in dealing with his accounts. In this in-
stance I think the item should be allowed.
Eighth Objection: Overruled.
Ninth Objection: Overruled.
Tenth Objection: With reference to this objection the
court has given careful attention to the brief presented by
the special administrator, and is disposed to consider this
claim in the most liberal spirit consistent with its view of
the law. The special administrator undoubtedly acted in
good faith in journeying to New York in response to the
telegram from Buffalo; but he should have consumed no
more time than was actually necessary in the discharge of
his business, and he is entitled to no more remuneration
than, in the opinion of the court, would be proper for the
dispatch of his errand to the east. The court regulates his
charges in this manner:
106 Coffey's Probate Decisions, Vol. 1.
21 days necessarily consumed; loss of time, at
$20 $420 00
7 days in New York, at $5 per day; board, etc, 35 00
$455 00
For his compensation as special administrator
the court can, in the due exercise of its discretion,
accept no other standard than that furnished by
section 1618, Code of Civil Procedure, and allow
accordingly :
Commissions on amount accounted for, $10,394 14.
First $1,000 00 $70 00
9,000 00 450 00
394 14 15 77
$535 77
Extra comp., one-half rates 267 88
$803 65
$1,258 65
Tenth objection: While the tenant of the life estate is
not entitled to immediate possession, she will be entitled on
distribution to the rents, issues and profits; and, ordinarily,
her intermediate occupancy might not seem to challenge
criticism; but in the face of objection, the court cannot dis-
regard the strictly legal aspect of the case; and must, there-
fore, hold the administrator accountable for the rental value
of the premises ; being disposed, however, to take into ac-
count the care bestowed upon the property by the tempo-
rary tenant or custodian. In allowing for the first (Payler)
items objected to, the court has bestowed some consideration
upon this point. The court will hold the administrator for
the ascertained rental value of the premises on Sixteenth
Street. Let the account of the special administrator be re-
stated or amended in accordance with this opinion.
An Administrator is Entitled to an Allowance for necessary ex-
penses incurred in traveling on business connected with the preserva-
tion of the estate: Estate of Byrne, 122 Cal. 260, 54 Pac. 957; Es-
tate of Rose, 80 Cal. 166, 22 Pac. 86; Eice v. Tilton, 14 Wyo. 101,
Guardianship op Murphy. 107
82 Pac. 577. Traveling expenses connected with the administration
of foreign assets should be allowed out of those assets: Estate of
Ortiz, 86 Cal. 316, 21 Am. St. Eep. 44, 24 Pac. 1034. An administra-
trix is not entitled to expenses incurred in traveling when taking
steps to apply for letters of administration, or in attending the hear-
ing of a contest over letters of administration: Estate of Byrne, 122
Cal. 260, 54 Pac. 957.
An Administrator may, Under Some Circumstances, "be Allowed in
his accounts for the services of a bookkeeper: Estate of Moore, 72
Cal. 335; 13 Pac. 880; or of an expert accountant: Estate of Levinson,
108 Cal. 450, 41 Pac. 483, 42 Pac. 479. As a rule, the question
whether an administrator is entitled to employ a bookkeeper depends
on the circumstances of the estate; and should be left to the discre-
tion of the court: Estate of More, 121 Cal. 609, 54 Pac. 97. He can-
not charge the estate with the expense of hiring assistance in keeping
his ordinary accounts: Lucich v. Medin, 3 Nev. 93, 93 Am. Dec. 376;
Steel V. Holladay, 20 Or. 462, 20 Pac. 562.
In Case an Executor or Administrator is Himself an attorney, he
cannot charge the estate with the expense of another attorney to as-
sist him in conducting the ordinary administration, unattended with
any legal or other complications: Noble v. Whitten, 38 Wash. 262,
80 Pac. 451: Estate of Young, 4 Wash. 534, 30 Pac. 643; Estate of
Coursen (Cal.), 65 Pac. 965.
Guardianship op ANNIE MURPHY, Minor.
[No. 4,385; decided September 4, 1885.]
Guardianship. — The Probate Court has no Jurisdiction to appoint
a guardian for a child who has been awarded to a parent in divorce
proceedings, while the divorce court retains the right to control the
custody of the child.
This was an application by the father of Annie Murphy,
a minor, to be appointed her guardian. Mary Murphy, the
mother of the child, contested the application.
It appeared that in an action for divorce, pending be-
tween the petitioner and contestant, in department 8 of the
superior court of San Francisco, the custody of the child had
been awarded to the contestant.
Counsel for contestant claimed that the court granting the
divorce, and awarding the custody of the child to one of the
108 Coffey's Probate Decisions, Vol. 1.
parties, retained full and exclusive control over the subject
matter, and, besides citing numerous authorities, quoted sec-
tion 138 of the Civil Code of California, which is as follows :
"In an action for a divorce, the court may, before or after
judgment, give such directions for the custody, care and
education of the children of the marriage as may seem neces-
sary or proper, and may at any time vacate or modify the
same. ' '
Petitioner's counsel proceeded under sections 1747 et seq.,
Code of Civil Procedure, relating to the subject of guardian
and ward.
They maintained that the action of the court in the di-
vorce proceeding is merely ancillary to the main purpose
of the suit — the procurement of a divorce; and that the
point in controversy in that proceeding was not as to who
should have the custody of the minor — that she was not a
party thereto — but merely as to whether one of the spouses
was entitled to a divorce, and that therefore the order of
department 8 was not conclusive as to the custody of the
child, and does not debar the court having the control of
minors from exercising its jurisdiction. It may be added
that, by rule of the superior court of San Francisco (con-
sisting of twelve departments), all probate matters and those
relating to the guardianship of minors are assigned to de-
partment No. 9, which hears only probate and guardianship
proceedings.
Taylor & Craig, for petitioner.
Leonard S. Clark, for contestant.
COFFEY, J. This court cannot entertain jurisdiction
while the divorce court still retains the right to control the
custody of the minor: Anthony v. Dunlap, 8 Cal. 26.
Application denied.
Estate of McDougal. 109
Estate of DAVID McDOUGAL, Deceased.
[No. 2,278; decided Sept. 12, 1884.]
Administrator. — A Surviving Wife has the Right to Nominate an
administrator of her husband's estate, although she has been removed
from her position as executrix of his will because of her permanent
removal from the state.
David McDougal died on August 7, 1882, in San Fran-
cisco, a resident thereof, leaving a last will wherein his wife,
Caroline M. McDougal, was named as executrix.
On May 25, 1883, letters testamentary were issued to her;
and on October 1, 1883, she left this state for Washington,
D. C.
Thereafter proceedings were instituted under Sections
1136 et seq.. Code of Civil Procedure, for the revocation of
her letters, on the ground that she had permanently removed
from this state, and on July 16, 1884, an order was made
removing her from her position as executrix.
A request in writing by her, for the appointment of W.
K. Van Alen as administrator with the will annexed, was
subsequently filed, with a petition for his appointment.
A counter-application was filed, but was denied. The
grounds of contest of this application appear from the facts
above recited and the opinion.
P. J. Van Loben Sels, for Mrs. K. C. McDougal.
J. B. Reinstein, for nominee of surviving wife.
COFFEY, J. I have read carefully the briefs of respec-
tive counsel in these applications, but do not consider it
necessary to express any opinion as to the correctness of the
conclusions of either; since section 1426 of the Code of Civil
Procedure (to which they did not refer in their briefs, but
which was discussed orally in open court) disposes of the
matter. As the court said at the hearing, it can only exer-
cise its discretion under the limitations of the statute, and
section 1426 brings this case within the conditions of section
1365, Code of Civil Procedure. The conduct of the execu-
trix and the cause of her removal do not affect her right of
nomination, since the statute does not so declare.
110 Coffey's Probate Decisions, Vol. 1.
It does not appear that Van Alen is incompetent under
the statute; and this being so, he is entitled as of right,
as the nominee of the surviving wife, to letters of administra-
tion with the will annexed : Code Civ. Proc., sees. 1365, 1426.
A Surviving Spouse, though incompetent to act as administrator
because of nonresidence, is entitled to nominate some competent person
for the position: Estate of Dorris, 93 Cal. 611, 29 Pac. 244; Estate of
Healey, 122 Cal. 162, 54 Pac. 736.
Estate of THOMAS H. BLYTHE, Deceased.
[No. 2,401; decided February 12, 1885.]
Coimsel Fees. — The Difficulty and Delicacy of the Court's Duty, in
adjusting applications of attorneys for allowance of fees, expressed.
Attorneys — Duty to Submit to Court. — Among the duties of an at-
torney is that of submission to the court in the exercise of a discre-
tion not abused, without demur or murmur. He is to advise and
counsel simply, leaving the court, in its own way, to come to a con-
clusion.
Counsel Fees. — In the Consideration of Applications for Fees by at-
torneys appointed by the court, the appointee and applicant should
be especially indulgent to the court which has chosen him in its en-
deavor to properly adjust the rights of the applicant. The duty of
submission to the court, stated in the second headnote above, is es-
pecially applicable to these attorneys.
Counsel Fees. — Whether an Estate in Probate is Large or Small,
whether it may escheat or not, or go to claimants then unknown, the
principles of law governing the compensation of an attorney are the
same, and should be applied rigorously by the court.
Counsel Fees. — In Fixing Attorneys' Fees There are no Established
Rules; the character and circumstances of every case, founded upon
general principles of justice, and the reasonable value of a capable
attorney's services, must furnish the rule.
Counsel Fees. — In Determining the Compensation of an Attorney it
has been the practice, and has become the rule of the court, that ex-
pert testimony as to the value of the services will not be considered.
The judge will determine the matter for himself.
Administration — Extravagant Costs. — The Impression, Widely Preva-
lent, of the extravagant cost of administering estates, referred to and
the court's position stated.
Estate of Blythe. Ill
Attorneys. — The Probate Judge is the Guardian of all Decedents'
Estates; but the law contemplates an aid in the selection of a com-
petent attorney to protect the court against spurious claimants, or
fraudulent devices or practices of any sort.
Attorneys. — It is the Duty of an Attorney Appointed by the Court
in the administration of a decedent's estate, as the legal representa-
tive of the heirs, to discover and demonstrate to the court the true
heir, and to expose and denounce all pretenders.
This was an application by John C. Burch, who was the
appointee of the court to represent absent and other heirs,
for an allowance of $1,750 on account of services performed
under his appointment. After overruling a demurrer to the
petition, the matter was sent to a referee for adjustment, and
was reported back for allowance. The referee's ruling was
excepted to, and the opinion below was rendered on a review
of the report of the referee, Mr. A. H. Loughborough.
John A. Wright, for administrator.
T. I. Bergin, W. H. H. Hart and David McClure (appointee
of court), for Florence Blythe.
John C. Burch, in pro. per.
COFFEY, J. The adjustment of attorneys' accounts and
applications for compensation is one of the most delicate and
difficult incidents of the office of judge, particularly in the
probate department, where so many such applications are
made. The attorney is naturally anxious for a fee, which
is sometimes resisted with vigor, and sometimes there is no
one to resist, save the court, in the exercise of what it con-
ceives to be the interest of the estate. In discharging this
duty the court is constantly withstood by practitioners who
seem to forget, in the pursuit of their private gain, the higher
obligations they are under to the law which permits them to
practice, and to the court whose officers they are ; occasionally
an attorney appears who considers (or seems to consider)
the court as a convenience for him, and who resents the
court's regulation of his fees as an exercise of arbitrary au-
thority. Such attorneys mistake their vocation or its duties ;
they have rights which the court is always careful to regard ;
but they have also duties which are the source of those rights,
112 Coffey's Probate Decisions, Vol. 1.
and which duties the court will endeavor to see are faithfully
performed.
Among these duties is that of submitting to the court in
the exercise of its discretion, when it is not abused, without
demur or murmur; but instead of doing so, they undertake
to direct the court, instead of simply advising and counsel-
ing it, and then leaving the court, in its own way, without
molestation or undue urging, to its time for reflection or de-
liberation, so that it may come to a correct conclusion free
from obstruction or irritation produced by importunity or
intercession out of court.
These remarks are peculiarly applicable to petitions for
fees by appointed attorneys, who should be especially indul-
gent to the court which has chosen them to perform impor-
tant duties ; and the remarks are made now and here, because
this is an estate of magnitude and many complications, in
which the court is apt to be called upon, and has been called
upon, to act on applications for large allowances. Whether
the estate be large or small, however; whether it may ulti-
mately escheat to the state, or go to some of the present claim-
ants, or to others not yet before the court, the principles of
law are the same, and should be applied rigorously by the
court. In fixing fees there are no established rules; every
case, in its character and circumstances, must furnish its
own rule, founded upon general principles of justice and
the reasonable value of a capable attorney's services. In
arriving at such a rule, experience has taught and courts
have declared — this particular probate department repeat-
edly — that so-called expert testimony is unreliable ; and the
judge should trust to his own knowledge, experience and
judgment in establishing the value of services. The judge
here presiding has not (except in two or three earlier in-
stances) called upon experts in such cases, and where in some
instances the applicant called in other attorneys to testify,
the court has discarded their testimony and substituted its
own judgment. It is not necessary to discuss further the
reason of this practice; the supreme court has declared it to
be correct, and that is the end of the controversy. But the
court has so serious a responsibility, that it is bound to de-
Estate op Blythe. 113
cide these questions (as all other questions arising) with the
utmost care and deliberation; and even then it is not free
from liability to error.
Estates, large or small, complex or simple, should be ad-
ministered with efficiency and economy; and the impression,
too widely prevalent, of the extravagant expenses of admin-
istering estates should not be countenanced by the court, nor
in any wise encouraged by its conduct. Some of the ap-
plications are extraordinary in their amount, and, even when
largely reduced by the court, seem excessive ; but the court
does its utmost to keep the cost of administration within
bounds, to do justice to worthy and capable attorneys, and
to save all that can be saved to the widows and orphans and
absent persons who rely upon the protection afforded to
them by the law and the courts. Unpleasant as it may be to
contend with counsel in this regard, this court intends to be
firm and inflexible in the application of the principles herein
suggested.
Now, as to this particular application : The attorney ap-
plicant is a practitioner of large experience, of high repute
for integrity, and possessing the confidence of the court with
regard to his capacity (as is amply evidenced by his selec-
tion by the court), and entitled to adequate compensation
for his services; but what "adequate" compensation is may
constitute matter of difference between him and the court,
without reflection upon him. The claim he made here for
compensation was referred, with other matters, to the referee,
who is also a lawyer of ability, approved integrity and large
experience, just and fair in his reasonings and conclusions,
and moderate in his estimate of the value of services; and
he has undertaken to make, and has made, a thorough ex-
amination of the claim, and as a conclusion therein recom-
mended its allowance, approval and payment.
In his report the referee says, that at first it seemed to
him that the compensation sought seemed very large, but
after mature reflection and careful consideration of all the
circumstances, he concludes that.it was well earned; the ref-
eree further says, in alluding to the appropriateness of the
appointment, that this is an extraordinary case; a very large
Prob. Dec, Vol. I — 8
114 Coffey's Probate Decisions, Vol. 1.
estate is waiting for the legal heirs, the decedent left no will,
his domestic relations are involved in doubt ; apart from his
vast property he was an obscure man, it is not even known
with certainty where he was born, or under what name ; his
family source is difficult to discover, and of the numerous
and conflicting claimants who have appeared and asserted
rights to the inheritance, not one is an admitted heir, and
the pretensions of each must be scrutinized. As the referee
remarks, the judge is the guardian of this estate, but the
code contemplates that he shall be aided by a competent at-
torney to protect the court against spurious claimants or
fraudulent devices or practices of any sort, such as are, in
every court and in every country, constantly attempted and
occasionally consummated. It is the duty of such attorney
to expose and denounce the pretender claimant and to dis-
cover and demonstrate the true heir. The referee finds that
the attorney appointed has discharged his duty, so far. dili-
gently and efficiently, and has rendered all the services men-
tioned in his petition, and that he is, therefore, entitled to
the amount claimed as the reasonable value of his services.
Now, expressly reserving the question of the attorney's
right to pay for services rendered in the litigation in another
department, and also expressly declaring that any future ap-
plication for compensation shall not be predicated upon the
allowance here made, the court considers that the judgment
of the referee, based upon a complete examination of the
evidence, and fortified by his own matured experience,
ripened knowledge and discriminating intellect, should be
respected, and at the same time the court desires counsel dis-
tinctly to understand that all applications of this nature will
be subjected to rigid scrutiny, and that expert evidence will
not be invited, for reasons already set forth with sufficient
succinctness. Eeport confirmed.
Estate op Blythe (No. 2). 115
Estate of THOMAS H. BLYTHE, Deceased (No. 2).
[No. 2,401; decided January 6, 1885.]
Attorney for Absent Heirs — Power to Appoint. — Under section 1718,
Code of Civil Procedure, the probate court has power to appoint an
attorney for absent or unrepresented heirs of a decedent.
Attorney for Absent Heirs — Discretion in Appointing. — Although
the probate court has power to appoint an attorney for unrepresented
heirs of a decedent, the power should be prudently and discreetly ex-
ercised, in the interests of the estate and of all concerned. The rule
is, never to make such an appointment unless the necessity is mani-
fest.
Attorney for Absent Heirs When no Known Heirs. — The probate
court generally refrains from appointing an attorney for unrepre-
sented parties when there are no known heirs; not doubting its power,
but questioning the expediency of its exercise in such cases.
Attorney for Absent Heirs — Compensation. — An attorney appointed
to represent heirs is entitled to an allowance at any time after ser-
vices rendered, and during the administration. An application for
such an allowance before final settlement of the estate is not prema-
ture.
Attorney for Absent Heirs. — The Compensation of an Attorney ap-
pointed by the court to represent heirs must be paid out of the es-
tate, as necessary expenses of administration. Upon distribution of
the estate the attorney's fee may be charged against the party rep-
resented by him.
This was a demurrer to an application by Jno. C. Biirch,
appointed by the court to represent absent and unrepresented
heirs, for an allowance of $1,750, on account of services per-
formed by him under the appointment. It was claimed that
such an allowance could not be granted during the adminis-
tration — not until distribution of the estate; hence the de-
murrer.
T. I. Bergin, W. H. H. Hart, and D. McClure, for demur-
rant.
Jno. C. Burc'h, for claimant, in pro. per.
COFFEY, J. This court was rather reluctant to make
any appointment in the first instance, but upon motion of
one of the many attorneys for the numerous claimants, none
of the other attorneys dissenting audibly, or objecting other-
116 Coffey's Probate Decisions, Vol. 1.
wise until now, the appointment was made of a competent
and reputable practitioner at this bar. This court never
makes such appointments unless the necessity is manifest.
The court has the power to make such appointment under
section 1718, Code of Civil Procedure, although it is a power
that should be prudently and discreetly exercised, with a
view to the conservation of the estate and of the interests of
all concerned in it; and this court trusts it has so exercised
the power conferred upon it by the code in this as in other
instances. The court has in most cases refrained from ap-
pointing attorneys where there were no known heirs, not
doubting its power, but questioning the expediency of its ex-
ercise in such cases ; but in some other cases the result of the
appointment was the discovery of true heirs, who, except for
the action of the court, might have lost their inheritance.
That the power resides in the court to make such appoint-
ment is hardly dubitable: Stuart v. Allen, 16 Cal. 504, 76
Am. Dec. 551 ; Estate of Gasq. 42 Cal. 288 ; Estate of Simmons,
43 Cal. 547; Gurnee v. Maloney, 38 Cal. 87, 99 Am. Dec.
352.
This application is not premature. The attorney is en-
titled to an allowance at any time after services rendered:
Estate of Simmons, 43 Cal. 543.
The attorney may receive a fee, to be fixed by the court,
for his services, which must be paid out of the funds of the
estate as necessary expenses of administration, and upon
distribution may be charged to the party represented by the
attorney: Code Civ. Proc, sec. 1718.
The fee may be "paid" at any time prior to the "distribu-
tion," and then "charged" to the party represented: Es-
tate of Garraud, 36 Cal. 278.
Mr. Burch was appointed according to law; has rendered
services to the estate in pursuance of such appointment, and
is entitled to compensation therefor; the measure of which
compensation was referred to the referee, from whom it was
temporarily taken by the order of suspension of his proceed-
ings, and to whom it should now be restored. Let it be re-
stored; and the referee is ordered to take testimony in this
regard and report thereupon at his convenience.
Estate of Fitzpatrick. 117
Estate of ANN FITZPATRICK, Deceased.
[No. 2,623; decided May 19, 1885.]
Funeral Expenses. — The Surviving Husband is Liable for the fun-
eral expenses of his wife, where he has resources sufficient to respond.
Ann Fitzpatrick, a married woman, died intestate, on May
27, 1883, in San Francisco, a resident thereof, leaving sepa-
rate estate therein.
She left a surviving husband, Patrick D. Fitzpatrick, and
also a sister named Bridget Curley, as her heirs.
Letters of administration were duly issued to the surviv-
ing husband on July 19, 1883.
On March 26, 1885, the administrator filed his final ac-
count, which contained an item of $284 for the funeral ex-
penses of his deceased wife. The sister of the decedent ob-
jected to this item, on the ground that the surviving hus-
band is liable therefor, he having the pecuniary ability to
pay, and it being averred that he had such ability. The ob-
jection was sustained, and the item disallowed.
Matt. I. Sullivan and J. E. Abbott, for administrator.
E. N. Deuprey and J. M. Burnett, for contestant.
COFFEY, J. I am unable to find any authority any-
where exempting the surviving husband from liability for-
the funeral expenses of the deceased wife, where he has re-,
sources sufficient to respond; and the court is destitute of
discretion in such case : Garvey v. McCue, 3 Redf . 315.
Services Rendered by Physicians and Undertakers to a married
woman should be paid by her husband, if he is able to pay them,
rather than out of her estate: Estate of Weringer, 100 Cal. 345, 84
Pac. 825; note in 98 Am. St. Rep. 647; Constantinides v. Walsh, 146
Mass. 281, 4 Am. St. Rep. 311, 15 N. E. 631; Gallaway v. Estate of ;
McPherson, 67 Mich. 546, 11 Am. St. Rep. 596, 35 N. W. 114.
118 Coffey's Probate Decisions, Vol. 1.
Estate of WM. H. WALLACE, Deceased.
[No. 1,198; decided January 28, 1884.]
A Distribution of a Partnership Interest, owned by the estate, may
be ordered without a previous accounting by the surviving partners
to the administratrix.
Distribution Disposes of the Subject Matter, and Nothing Remains
within the jurisdiction of the court, except to compel obedience to
its decree, when necessary.
An Administratrix must be Held to have Concurred, as such, in a
request made by her in her own behalf as widow and as guardian of
a minor heir.
An Administratrix, as Such, is Estopped from Attacking a Decree
Made upon Her Request, as widow and as guardian of a minor heir,
and concurred in by her as administratrix.
Wm. H. Wallace died intestate in San Francisco, on Octo-
ber 2, 1881. On October 24, 1881, letters of administration
were duly issued to his widow, Emeline Wallace.
He left him surviving, as his heirs, his widow and two chil-
dren, Cora A. and Wm. H. Wallace, Jr., the latter a minor.
Mrs. Wallace was also appointed guardian of her minor
son.
The estate was the owner of a one-third interest in the
firm of Sisson, Wallace & Co., composed at the time of de-
cedent's death of A. W. Sisson, C. W. Crocker and said Wm.
H. Wallace.
An inventory and appraisement, in which the interest of
the estate in this firm was set out, was duly filed.
The administratrix entered into negotiations with the sur-
viving partners for the sale to them of the interest of the
estate in said partnership.
The result of these negotiations was that on May 2, 1882,
the widow, for herself, and as guardian of her minor son
and also the daughter of the decedent, filed a petition for
the distribution to them, of the interest of the decedent in
said partnership, in the proportions to which they were re-
spectively entitled.
The parties all appeared before the Judge then presiding
in Department No. 9 (the Hon. Jno. F. Finn), in his cham-
Estate of Wallace. 119
bers, and explained to him the purpose of the application for
distribution, namely, to sell to the surviving partners the in-
terest of the estate in said firm, and the same met with his
approval.
Thereupon, on May 15, 1882, the court rendered its decree,
listributing said interest to said heirs as prayed for.
The administratrix delivered to the distributees their sev-
'iral shares, according to said decree, and on June 2, 1882,
I he widow and her daughter conveyed all their right, title
and interest in said firm to said surviving partners.
The widow, also, as guardian of her minor son, obtained
an order of court authorizing her, as such guardian, to sell
said son's interest in said firm under the decree of distribu-
tion, and accordingly did so, which sale was thereafter duly
confirmed.
Thereafter the administratrix became dissatisfied with the
sale, claiming that certain matters were misrepresented to
her, and also that she was compelled to submit to the terms
of the surviving partners, and on October 26, 1883, she ob-
tained an order for them to show cause why they should not
render to her an account of the business, property and affairs
of the said copartnership.
The application for the order was based upon section 1585,
Code of Civil Procedure.
Counsel for the administratrix claimed that the decree of
distribution above mentioned was prematurely made, and
without authority of law, and void, and also that the court
had no jurisdiction to distribute until a partnership account-
ing had been rendered, and that until then there wer»' no
assets in the hands of the administratrix.
A. N. Drown, for administratrix, petitioner,
Mastick, Belcher & Mastick, for respondents.
COFFEY, J. 1. The court is of opinion that the decree of
distribution of ^lay 15, 1882, was properly made, and was
within the jurisdiction of this court. I cannot assent to the
view of the counsel for the petitioner upon this point.
2. Having by that decree disposed of the subject matter,
nothing remains within the jurisdiction of this court, except
120 Coffey's Probate Decisions, Vol. 1.
to compel obedience to the decree, in case it should have been
disobeyed, which is not the case.
3. The petitioner is estopped, as administratrix, by that
decree, from complaining of the exercise of a power pos-
sessed by the court and invoked upon her own request in be-
half of herself as widow, and as guardian of the minor, and
by the adult child, and in which, as administratrix, she must
be held to have concurred.
No other result can be reached by the court consistently
with my opinion of the law or of the principles of equity.
Order discharged.
Estate of CYNTHIA HOFF SHILLABER, Deceased
(No. 2).
[No. 4,015; decided July 14, 1887.]
Administrator — Allowance for Traveling Expenses. — Where an ad-
ministrator has, in good faith, journeyed to a distant state upon busi-
ness of the estate, and has incurred an attorney's charge in
connection therewith, an allowance will be made to him therefor;
and this whether or not he misconceived his legal duty.
Executor — Insurance — Proof of Loss. — It is an executor's duty to
prepare proofs of loss in case of a destruction of insured property
and hence he will not be allowed a charge incurred for having such
proofs prepared.
Executor — Costs of Copying Papers. — All proceedings necessary to
be taken by the executor in the administration of the estate are
part of his duty, and any papers drawn in connection therewith are
covered by the statutory compensation provided for his services; and
the costs of engrossing or copying the same are not taxable against
the estate.
Executor — Allowance for Clerical Help. — When, in a large estate,
the impracticability is shown of doing without clerical assistance to
collect rents and keep accounts, the court usually makes some allow-
ance therefor; but guardedly, and never without rigorous proof of
necessity, although no objection be interposed.
The Administrator may be Allowed a Charge for Costs Paid in
Serving Notices required by law to oust a defaulting tenant, and al-
though paid to an agent of the estate, receiving a compensation for
collection of the rents.
Estate op Shillaber. 121
An Item in an Account for "Executor's Loss of Time" will be
stricken out.
Appraisers. — Where Compensation of Appraisers has been Fixed af-
ter Notice to all parties interested, the question will be thereafter
treated as res judicata.
Appraisers. — It is the Duty of Appraisers, in all cases where their
labor extends over a number of days, to preserve a minute account
of their services.
An Executor is Entitled to the Assistance of Counsel, even When
He is Himself an Attorney; but in dealing with the question the court
will be mindful of the fact that the executor is an attorney of abil-
ity. So, in this case, conforming to this rule and qualification, the
court reduced the attorney's charge by one-third.
Executor — Allowance for Counsel Fees. — In the case at bar the
executor was allowed an item for counsel fees, although his counsel
was his law partner, it being proved that in this service such coun-
sel was not the business partner of the executor.
Executor. — An Item for Commissions of an Executor, found in an
annual account by him, will be disallowed. Allowance of an exec-
utor's statutory commissions is authorized only upon settlement of
his final account in the administration.
There was a contest arising upon objections to the settle-
ment of the first annual account of the executor. ]\Ir. Carroll
Cook, as executor, filed his first annual account on Septem-
ber 13, 1886, and upon the twenty-seventh day of September,
1886, written objections were filed by Frances H. Lowndes
(a sister of the above-named testatrix) in her own right as
an heir, and also as guardian of the person and estate
of Theodora Lowndes, a minor, a party interested in the
estate of said decedent. After sustaining, as to one point,
a demurrer to tlje objections (on October 8, 1886), the hear-
ing was had, extending over a considerable period of time;
final argument being heard on March 24, 1887. Such state-
ment of the objections and items of the account referred to
in the opinion is here made, as is considered to be helpful
to a more complete understanding of the judge's decision.
As to the first objections considered, respecting certain
telegrams, it appeared that the executor was absent from
San Francisco, and telegraphed certain instructions respect-
ing affairs of the estate. As to the amount paid Josiah Cook,
an attorney at Buffalo, it appeared that at the time of dece-
122 Coffey's Probate Decisions, Vol. 1.
dent's death a certain suit began in New York state was
pending against her, and, in answer to a telegram from rela-
tives of decedent's family, the executor went on to New York
in the belief that some immediate necessity existed for the
sending of the telegram, which called for his prompt appear-
ance in New York. For the contestants to the account, it
was urged that no necessity of attention could arise with
respect to that suit or matters involved in it, because the suit
suspended by decedent's death, and could only be revived by
instituting an administrator in New York, and having him
substituted in the suit; furthermore, the whole matter of the
suit was beyond the jurisdiction of this court, and the forum
of this administration, and so no part of the executor's duty.
The court took the view, however, that the executor should
be protected in his action, it having been taken in good
faith, although under an erroneous impression of the law.
The items of moneys paid O'Beirne and Jewett, and dis-
allowed by the judge, deserve attention, as they involve an
erroneous impression on the part of the executor, not so
uncommon, perhaps, in probate proceedings, as might be
wished on the part of the court, who is often left to pick
out objectionable items of a like character without any help
from observing counsel in opposing interests.
The item of $2 paid O'Beirne was for making a "fair
copy" of the executor's account; the item of $5.50 for copy-
ing the executor's amendments to a certain statement on
appeal; and the item of $16, for copying the inventory filed
in the estate and a brief presented to the judge. The item
of $34 paid Jewett was for making a copy of all proceedings
and papers of record in the administration, which copy the
executor wanted for his convenience.
The rejection of these items was, as stated in the head-
note, on the ground that the subject matter was within the
line of the executor's duty, and so was covered by the com-
pensation, and commissions provided by law. If, e. g., it was
part of the executor's duty to file an account, he could not
make a charge for moneys, paid in engrossing that; neither
could he ask the estate to pay for any copy thereof he should
Estate of Shillaber. 123
desire to keep; all these items disallowed are upon this legal
ground.
The facts as to all other items objected to are sufficiently-
stated in the opinion of the court.
The legal propositions contained in the second, fifth, sixth,
eleventh and twelfth headnotes were previously announced
January 7, 1886, in a decision delivered in the same estate,
upon the settlement of the executor's final account in the
special administration, reported ante as Estate of Shillaber
(No. 1).
William Hoff Cook, for executor.
Carroll Cook, executor, in pro. per.
W. S. Wood, for objections.
B. Noyes, also for objections.
COFFEY, J. Objections sustained to items for telegrams
July 6th, $1.30; July 6th, 50c.; July 6th, 75c.; July 6th,
50c. ; July 7th, 85c. ; July 9th, 35c. ; July 9th, 25c.
Fifteen per cent should be taken from all premiums of
insurance, it appearing from the testimony that Mr. Gun-
ther was agent for the estate, and that he received, or is
about to receive, not less than that amount of premiums as
commissions for procuring the insurance.
As to the $100 paid to Josiah Cook, an attorney at Buffalo,
the court repeats what it said with reference to the special ad-
ministrator in a similar connection, that, having acted in
good faith in journeying to New York, in response to the tele-
gram from Buffalo, he should be allowed whatever proper
expense was incurred in that regard; and, whether or not he
was mistaken in his view of the law, the court esteems it just
to allow this item.
Item, August 31st, E. W. Gunther $50, for preparing
proofs of loss. I do not think this is a proper charge against
the estate, for the reason that, if I correctly understand it,
it is the duty of the executor to make and prepare such
proofs.
Items for September 25th, J. F. 'Beirne, $2 ; September
30th, J. F. 'Beirne, $5.50; October 3d, George Jewett, $34;
December 14th, J. F. 'Beirne, $16 should be disallowed.
124 Coffey's Probate Decisions, Vol. 1,
With references to the charges of commissions paid E. W.
Gunther for collecting rents, as well as the three items of
cash paid Mr. Gunther on May 25th, June 5th and 12th for
serving notices, the court will repeat what it said upon the
settlement of the account of the special administrator:
"When in the care and management of a large estate it is
shown to be impracticable to do without clerical assistance
to collect rents and keep accounts, the court usually makes
some allowance, but the exercise of this discretion should be
guarded.
"The executor is expected to perform some labor and to
use the utmost economy consistent with the protection of the
estate entrusted to his custody and care. I have never
made such allowances without rigorous proof of necessity,
even when no objection was interposed; but such allowances
have been made in probate courts repeatedly under such cir-
cumstances as are suggested in this case.
"Even if proper, however, the charge is out of proportion
to the result. I shall allow at the rate of four per cent up-
on collections ; reserving to myself the right in other accounts
to deal otherwise with any similar item, and acting now up-
on the evidence before me and my present view of duty."
I am inclined to think that under all the circumstances
of this estate it is reasonable to allow something for such
service, but, taking into consideration the relation of the
recipient of tliis commission to the executor, three per cent
seems to be sufficient. The item is reduced to that amount.
The charges for serving notices are allowed.
With reference to the items embraced under ob.jection 4,
so much of the charge as is for executor's loss of time should
be struck out; and as for other expenses, for the trip to Los
Angeles, while I consider that executors should be more fru-
gal in disbursing the moneys of estates, yet in this case it
may be that the expenditures were justified by the circum-
stances, so I shall disallow objections as to all but what I
have herein indicated. .
As to the charges of the appraisers, I am of opinion that
that matter was adjudicated by the order allowing the
amount, after notice given, and that, apart from that, while
the appraisers should have preserved a minute account of
Estate op Shillaber. 125
their services, day by day, in this as in all other eases, the
court would feel compelled from the evidence, if it consid-
ered the matter open for inquiry at this stage, to allow the
items.
As to the ninth objection: "August 25th, William Hoff
Cook, services $1,500," the court repeats the language of its
opinion in the matter of the account of the special adminis-
trator. "The executor is entitled to such assistance, even
when he himself is an attorney and he needs other counsel.
In this case, while he has been actively participant in all
the proceedings, yet the counsel claiming the allowance has
done, before the court, work entitling him to consideration,
and his evidence is that in this service he is not a business
l)artner of the executor. The executor, however, is a lawyer
of competency and experience; and he must expect, here-
after, that the court will consider this fact in dealing with
his accounts."
So considering in the present instance, the court reduces
this item by one-third, making it $1,000.
With regard to objection 10, commissions of executor.
This item is unauthorized by law.
"An administrator's commissions should not be allowed
him in the settlement of his annual account, but when he
has rendered his final account": Estate of Minor, 46 Cal.
564.
All objections and exceptions not herein specifically dealt
with are overruled and denied.
For Authorities upon the questions involved in the principal case,
see Estate of Shillaber, ante, p. 120, and note. That an adminis-
trator may charge the estate with the traveling expenses of his at-
torney incurred in preserving the assets of the estate, see Estate of
Moore, 72 Cal. 335, 13 Pac. 880; Estate of Byrne, 122 Cal. 260, 54
Pac. 957.
126 Coffey ^s Probate Decisions, Vol,. 1.
Estate of RICHARD T. MAXWELL, Deceased.
[No. 2,625; decided March 10, 1884.]
Homestead. — The Probate Court must, upon proper application,
set apart to the widow a homestead, if none has been selected during
the lifetime of the decedent. It has no discretion in the premises.
Homestead. — It does not Impair or Diminish the Right of the
Widow to have a homestead set apart that there are no minor chil-
dren.
Homestead. — Even if the Testator Devises His Entire Estate, which
was separate property, his widow will still be entitled to a homestead.
Homestead. — If a Homestead is Selected from the Separate Property
of the decedent, the court can set it apart only for a limited period,
to be designated in the order.
The above-named decedent left certain real property in
Napa county.
Two days before his death he entered into what he sup-
posed to be a valid marriage with a woman who called her-
self Miss Elena Donnelly.
After his death a sister of the deceased claimed that Miss
Donnelly had a husband living at the time she entered into
the pretended marriage with decedent, and that in conse-
quence such marriage was void. This marriage, however,
is immaterial here, as this fact, if it existed, had not been
discovered at the time of the application for a homestead.
On October 30, 1883, I\Irs. Elena Maxwell, alleging her-
self to be the widow of the decedent, filed an application
that a homestead be set apart to her out of this Napa prop-
erty.
Appraisers were appointed to select the homestead, which
they did, appraising it at $5,000.
Previous to this alleged marriage with the applicant, the
decedent had been married and divorced. In the matter of
this divorce the parties settled their property rights, which
settlement was made a part of the divorce decree.
By the terms of this settlement Mrs. M. W. Maxwell, the
divorced wife, released all claim to the testator's property,
and he agreed to pay her $125 per month during her life,
and as security for such payment executed a mortgage up-
on his Napa property.
Estate of Maxwell. 127
The testator left a will, in which it was provided that the
monthly income from the property, after payment of this
charge of $125 per month upon it, should be equally divided
between ]\Iiss Donnelly and one Miss Margaret McKenzie.
On January 28, 1884, Miss McKenzie filed a contest to the
application for a homestead, alleging the above facts in re-
gard to the charge of $125 per month upon the property,
and that she was a legatee, and further that there was no
issue of the marriage of Miss Donnelly with the testator,
and that the Napa property was his separate estate, that the
applicant and decedent never lived upon the land or oc-
cupied it as a homestead, and that it was of greater value
than $5,000; that the portion selected as a homestead was
the most valuable portion of the property, and that the in-
come from the remainder was insufficient to pay the monthly
allowance to Mrs. M. W. Maxwell.
On January 19, 1884, the executors also filed objections
to the application, alleging that it was the desire of the de-
cedent that the lands should not be sold.
On March 14, 1884, the court made an order setting apart
a homestead to the applicant during her widowhood.
T. I. Bergin, for applicant, Mrs. Elena Maxwell.
Daniel Rogers, for executors, in opposition.
A. F. Morrison, for Miss Margaret McKenzie, legatee, also
in opposition.
COFFEY, J. There is a proper petition before the court.
If there were a defect of signature, it was cured under the
Code (Code Civ. Proc, sec. 473.) by leave of the court.
The evidence of Appraiser Cornwell, a highly respecta-
ble citizen and property owner of Napa county, entirely
disinterested and perfectly conversant with the circum-
stances of the Maxwell Ranch, is clear that the land se-
lected can be segregated without detriment to the rest of the
ranch, or impairment of any right in others than the ap-
plicant here.
This court must, upon proper application, set apart to
the widow a homestead, if none has been selected in life-
time of decedent. The court has no discretion to deny the
128 Coffey's Probate Decisions, Vol. 1.
application : Estate of Ballentine, 45 Cal. 699 ; Estate of Mc-
Cauley, 50 Cal. 546; Mawson v. Mawson, 50 Cal. 539.
It does not impair or diminish the right of the widow
that there be no minor children. The homestead is to be
set apart to the survivor. It is immaterial that the petition
be on behalf of the widow alone. It could not here be other-
wise. Her status is that of the ''surviving wife" (Code
Civ. Proc, sec. 1465). If a testator devised his entire estate
— his separate property — his widow would still be entitled
to a homestead: Estate of Moore, 57 Cal. 443.
If the property set apart be selected from the separate
property of the decedent, the court can only set it apart for
a limited period, to be designated in the order: Code Civ.
Proc, sec. 1468; Estate of Lord, 2 West Coast Rep. 131;
Lord V. Lord ; 65 Cal. 84, 3 Pac. 96.
It is suggested that there is a crop of wheat sown on the
land. The crop should be reserved.
Application granted.
The Principal Case is followed in Estate of Tate, post, p. 217.
Estate and Guardianship of WM. A. WHITE, Minor.
[No. 3,411; decided September 3, 1884.]
Marital Obligation — Filial Devotion. — A husband should not allow
the duty he owes to his wife to be overcome by his love for his
parents. Where one's marital obligation comes into conflict with his
filial devotion, the latter should give way to the former.
Guardianship. — Assuming that a Father's Right to the Custody of
his child revives upon the death of the mother, who had been
awarded the custody under a divorce decree, yet it must be shown
that the minor's interest will be conserved by recognizing the father's
right.
Guardianship. — Where a Husband Deserts His Wife, who is left
to care and provide for their infant child, this will be considered as
an abandonment of the child, upon the father's application for guar-
dianship after the mother's death.
Guardianship. — Reluctant as the Court Always is to Interfere with
a Father's natural right to his child's custody, it will do so where
the child's interest demands.
Guardianship of White. 129
Guardianship. — In the Case at Bar the Court Refused Guardian-
ship of a minor of divorced parents to its father, applying after the
death of the mother, and granted letters to the maternal grandmother
of the minor, for the following reasons: The child had been awarded
to the mother by a divorce decree against the father; the father
never provided for the child, except when compelled by judicial pro-
cess; he never showed any interest in the child from the time of
his desertion of the mother, and by his continued course of conduct
manifested a lack of paternal instinct; the maternal grandmother
had received the mother and child when deserted by the father, and
had ever afterward given them shelter and assistance, and she was
the nominee of the mother, by the latter 's dying request.
H. C. Firebaugh, for first application.
K. M. Smith, for second application.
COFFEY, J. We have here two applications for letters
of guardianship of the person of Wm. C. A. White, a minor.
The first application was filed on behalf of Mrs. Ellen
Doran, the maternal grandmother of the minor; the second
by Wm. F. White, the father of the minor, who was mar-
ried to the minor's mother April 13, 1879, separated from
her July, 1880, four months after the birth of the child,
which occurred April 2, 1880; subsequent to the separation,
a divorce was obtained by the mother of the minor on the
ground of the father's desertion of her; child awarded to
mother. The mother died May 22, 1884, prior to which time
the father married again.
The father of the minor appears to be a respectable
young man, engaged in a responsible position for many
years, earning for about six years of that time $100 per
month, a salary sufficient for the maintenance of his small
family in comfort. Between the time of the separation,
July, 1880, and October, 1882, and while Mr. White was in
possession of abundant means, he contributed nothing to
the support of his child, and then (October 9, 1882) only
under judicial process and constraint of court. It appears
in evidence that, when Mr. White married, he took his wife
to his mother's house, and owing to inability to live amicably
with her mother in law, the wife left there and went with
her child of four months to her own mother's home, where
she remained until the moment of her death, May 22, 1884.
Prob. Dec, Vol. I — 9
130 Coffey's Probate Decisions, Vol. 1.
The minor's mother supported herself and child by prose-
cuting the vocation of bookbinder, and was expert and in-
dustrious always, except when her health compelled her to
suspend work, and sometimes even when in ill health. Ac-
cording to all accounts in evidence, she was a most exem-
plary woman, a good wife, a dutiful daughter and an
affectionate mother. She offered to live with her husband
and to provide for her mother in law, but her husband
''wouldn't have it." The husband seemed to care more for
his mother than for his wife.
While his filial devotion is not to be censured in itself,
when it came into conflict with his marital duty he should
have observed the canonical command and the Scriptural
injunction, and, if the occasion demanded, to leave his father
and mother, and all the rest of his kin. and to "cleave unto
his wife": Eph. v., 31. His regard for his mother should
not have overcome his obligation to his wife. He allowed
his wife to go away elsewhere for shelter with a four
months' old infant, and then for over two years, in more
or less infirm health, to labor arduously at a binding busi-
ness, only yielding pecuniary aid when he was coerced to
comply with the order of the court (awarding to her the
custody of the child, and $15 per month alimony), under the
fear of punishment for contempt of court. Whatever the
extraneous influence operating upon his mind, he showed no
interest in nor affection for his wife and child, from the time
of separation, until after the death of his wife; and then he
claims custody of the child as the father, and, therefore,
naturally entitled to possession. By decree of court he had
been deprived of that possession ; he claims the death of the
mother revived his right. Assuming the accuracy of his at-
titude, it should be shown that the interest of the minor
will be conserved by the recognitioh of the right of the
father. In this case it appears that the child is in the same
custody that he was placed in by the mother at the age of
four months; that the child has been tenderly nurtured, and
is and has been treated with the most affectionate care by
the petitioner, Mrs. Ellen Doran, the maternal grandmother,
a widow with a family of grown children, all of whom.
Guardianship op White. 131
appear to be respectable persons in comfortable circum-
stances, and greatly devoted to the child ; that when the
mother died, and while realizing her approaching end, she
manifested solicitude as to care of child, and expressed a
desire that her mother (Mrs. Ellen Doran) should retain
the child ; that practically her mother has cared for the child
for years, nursed him and his mother, the deceased Mrs.
White, when both were ill, and when the child's life was
in danger, procured competent medical attendance, during
which time the father, W. F. White, although cognizant
of the situation, never went to see the mother or the minor,
and made use of expressions indicating (to employ mild
terms) an absence of sensibility and sympathy in his rela-
tions to the mother and their child. Practically, when Mr.
White allowed his wife to go forth from his protection, in
delicate health, with her infant, also in delicate health, and
to seek her mother's care, which was granted to her, he
abandoned his child (as the court had decreed he deserted
his wife), and the grandmother, Mrs. Ellen Doran, gave the
child a good home, and has ever since that time treated
the infant as if she were the mother. The father's natural
right must bend to the interest of the child, as the court
discerns that interest. Reluctant, as the court always is, to
interfere with such natural right, the law and the evidence
make clear the duty in this interest. The original award of
the custody of the child to the mother; the dying request of
that mother in favor of Mrs. Doran ; the long-continued
indifference of the father, and his contumacy in complying
with the orders of the divorce court; his expressions before
the death and during the illness of the wife (before and
after divorce) ; his continued course of conduct manifesting
a lack of the paternal instinct — all of these established cir-
cumstances warrant the court in granting the prayer of
the maternal grandmother, Mrs. Ellen Doran, subject to
such limitations in favor of the father's visiting the child
as may be consistent with its secure custody and welfare.
While Parents are Presumed Competent to have Charge of Their
Child, and the j)arcntal righl will not lightly be disregarded, never-
theless the court, in appointing a guardian, is guided primarily by
132 Coffey's Probate Decisions, Vol. 1.
what appears to be for the best interests of the child, and may award
it to a third person whenever its well-being demands such a course:
See 2 Eoss on Probate Law and Practice, 950; Guardianship of Dan-
neker, ante, p. 3, and note.
Estate of NICHOLAS TREWEEK, Deceased.
[No. 2,159; decided November 11, 1885.]
Executor — Failure to Comply •with Decree of Distribution — An exec-
utor who refuses to make payment to distributees in accordance
with the decree of distribution is punishable for contempt, and he
cannot plead inability to pay, when his account on file shows the
contrary.
Nicholas Treweek died in San Francisco on December 30,
1882, leaving an olographic will dated April 2, 1882, in
which he made his brothers, Francis, John and George Tre-
week, and his sisters, Jane Treweek and Elizabeth West,
his legatees and devisees. The same persons were his heirs.
To his brother Francis he left the sum of $5,000, and to
each of his other brothers and sisters $2,500, making in all
$15,000. He also made all his brothers and sisters his
residuary legatees and devisees, share and share alike.
In this will the testator also named Arthur W. Bowman
executor.
On January 6, 1883, Mr. Bowman filed the will, together
with a petition for its probate, and for letters testamentary.
The petitioner stated the probable value and character
of the property of the estate to be about the sum of $15,000
in money in his hands, and certain stocks and real property.
On January 24, 1883, the will was duly admitted to pro-
bate, and the petitioner appointed executor, and letters were
issued to him on the 29th of the same month.
An inventory and appraisement was filed in the estate
on September 4, 1883, in which the executor stated that
part of the estate consisted of about the sum of $16,775.23
in money in his hands.
Estate of Treweek. 133
On January 3, 1884, the executor filed his final account,
and a petition for final distribution in accordance with the
will.
In this account he stated the balance of moneys in his
hands to be $15,000.
The account was settled, and decree of distribution made
as prayed for on January 15, 1884.
On June 15, 1885, Lovell Squire, Jr., filed a verified
petition reciting the facts above stated, and also alleging
that he was the attorney in fact of the distributees; that
he had, as such, made demand upon the executor for the
sum of $15,000, in accordance with the decree of distribu-
tion, and that he had refused to pay, giving as his only
ground of refusal that he did not have the money; Mr.
Squire therefore prayed that an order be made requiring
the executor to show cause why he should not pay the
money, or be punished for contempt for his failure to do
so.
The order to show cause was made, and citation issued
thereon.
On July 22, 1885, the executor filed his answer to this
petition. He stated in his answer that at the time of the
testator's death he. Bowman, owed the sum of $15,000. to
the testator for moneys loaned ; that in his petition for pro-
bate he alluded to said moneys as moneys in his hands, but
as a matter of fact there were no moneys of the estate in his
hands, although he was at that time amply able to pay the
debt; that after his appointment as executor, the matter
remained in precisely the same condition, to-wit : as a debt,
he having made no segregation of his moneys, or set any
apart to the estate in payment of the debt; that at the time
of the distribution the distributees were absent from the state
of California, and respondent did not know that they had
an agent in this state, and if they had been here he would
have paid them out of his general resources; that on October
27, 1884, a petition was filed in the superior court of Ala-
meda county by certain of his creditors, to have him
declared an insolvent, and that on November 10, 1884, he
was adjudicated an insolvent, and one Wm. Thomas was
appointed his assignee; that his estate was worth at least
134 Coffey's Probate Decisions, Vol. 1.
$100,000, and the insolvency proceedings were still pending;
and since the filing of the petition in insolvency he had no
moneys in his hands, and that his whole estate was in the
hands of his assignee; that it was impossible for him, re-
spondent, to comply with the decree of distribution, and
that this impossibility was the only reason for his failure
to comply, and he intended no contempt of or disrespect to
the court.
To this answer a general demurrer was filed by the
petitioner, which was sustained on November 11, 1885, with
leave to respondent to amend within ten days thereafter.
Respondent having declined and failed to amend, he was
committed for contempt on November 30, 1885.
Columbus Bartlett, with whom was W. E. Lindenberger,
for demurrant.
E. W. McGraw, for respondent.
COFFEY, J. The executor is an officer of the court,
and as such responsible to the court for failure to comply
with the terms of the decree of distribution, which was final
and conclusive. It was his duty to make payment as there-
in directed: Code Civ. Proc. 1209, 1666, 1721, 1962; Estate
of Taylor, Myr. 160 ; Estate of Smith, 53 Cal. 208 ; Estate of
Cohn, 55 Cal. 193; Estate of Lacoste, Myr. 68.
The other authorities cited and considered do not affect
the adjudications in this court and state, which seem to me
conclusive against respondent. Demurrer sustained, ten
days to amend.
When a Decree of Distribution is Made, it becomes the duty of the
executor or administrator to deliver tlie estate to the parties desig-
nated by the court: McCabe v. Healy, 138 Cal. 81, 90, 70 Pac. 1008.
No special or express order to that effect is authorized or required.
Upon the entry of the decree, the law fixes this duty on him. He
still remains an officer of the court, subject to its jurisdiction, until
his final discharge; and hence the court has authority, if necessary,
to compel him, by punishment as for a contempt, to make a delivery
to the distributees of their respective shares: Ex parte Smith, 53
Cal. 204; Wheeler v. Bolton, 54 Cal. 302; Estate of Kennedy, 129 Cal.
384, 62 Pac. 64; Estate of Cohn, 55 Cal. 193; McLaughlin v. Barnes,
12 Wash. 373, 41 Pac. 62. And he can take no appeal from an order
adjudging him in contempt, and committing him to jail until he com-
plies with the decree: Estate of Wittmeier, 118 Cal. 255, 50 Pac. 393.
Estate of Maxwell. 135
Estate of RICHARD T. MAXWELL, Deceased (No. 2).
[No. 2,625; decided December 1, 1884. Affirmed, 74 Cal. 384, 16 Pac.
206.]
Probate Court — Jurisdiction. — The Superior Court, sitting in pro-
bate, has no greater jurisdiction tban the probate court which it suc-
ceeds.
Probate Court — Jurisdiction. — The Superior Court, while engaged in
the exercise of probate jurisdiction, cannot entertain a cause of ac-
tion to obtain relief upon the ground of fraud, such as a petition to
disregard and declare void a devise alleged to have been procured
through fraud, and to make distribution to the heirs.
Richard Tybout Maxwell died in San Francisco on June
29, 1883.
He left an olographic will, bearing date July 23, 1882.
Daniel Rogers and Charles Ashton were therein named as
executors, and upon petition filed on July 5, 1883, and due
proceedings had, the will was admitted to probate and the
executors named appointed, and letters testamentary issued
to them on July 17, 1883.
In the petition for probate the executors stated that on"
June 27, 1883, the testator intermarried with Miss Nellie
Donnelly, who was the principal devisee in the will.
On November 5, 1884, the executors filed their final ac-
count and a petition for distribution, in accordance with
the terms of the will.
On November 13, 1884, Mrs. Elizabeth C. Tybout, sister
of deceased, filed certain exceptions to the petition of the
executors for distribution, and asked that distribution be
made to her as sole heir at law.
She alleged that all provisions in the will in favor of Miss
Donnelly were made by the testator upon Miss Donnelly's
false and fraudulent representations, knowingly made to
the testator, that she was an unmarried woman and capable
of entering into a valid contract of marriage with him, and
in view of such marriage being entered into.
That as a matter of fact, however, the so-called Miss
Donnelly was, on August 31, 1880, married in Alameda
countv to one Charles H. Keane, and is still his lawful wife.
136 Coffey's Probate Decisions, Vol. 1.
That the testator never knew this, and, believing the so-
called Miss Donnelly's false and fraudulent representa-
tions, made the provisions in her favor; and that on June
27, '1883, she entered into a pretended marriage with the
testator, but that she was then the wife of Charles H. Keane,
and well knew it, and that her said pretended marriage with
testator was void.
That up to the time of his death the testator did not
know of the fraud that had been practiced upon him, and
believed Miss Donnelly to be his wife, and that neither
Mrs. Tybout nor the executors had any knowledge or in-
formation of the marriage of the so-called Miss Donnelly
to Keane, nor of the fraudulent representations, prior to
September 8, 1884, more than a year after the probate of
the will.
That the marriage with Miss Donnelly was the testator's
sole motive in making her his devisee.
Mrs. Tybout therefore asked that the devise to Miss Don-
nelly be declared void, and that she, Mrs. Tybout, have dis-
tribution as sole heir at law of decedent.
To these exceptions and petition Miss Donnelly filed a
demurrer on November 26, 1884.
The principal grounds of demurrer were, that more than
one year had elapsed since the probate of the will, and that
the time for attacking such probate and said will on any
ground had long since elapsed ; also that the wilL cannot be
set aside in the mode attempted; further, that the facts
stated are insufficient to authorize the court, under any cir-
cumstances, to disregard or refuse to the terms of the will,
or to the order admitting it to probate, full force and effect,
and that they are no longer open to attack in any proceed-
ing.
This demurrer was sustained on December 1, 1884.
McAllister & Bergin, for the demurrant, M. E. Donnelly
Joseph R. Brandon, opposed, for Mrs. Elizabeth C. Ty-
bout.
COFFEY, J. Counsel for the petitioners, excepting to
the application for distribution in this estate, claims that
the "exceptions" constituting a cause of action or pro-
Matter of Ingram. 137
ceeding under section 338, Code of Civil Procedure, to obtain
relief on the ground of fraud or mistake, and not a pro-
ceeding collaterally or directly to assail the probate of the
will, are at this time and in this manner cognizable by this
court; and he asks this court, while engaged in exercising
probate jurisdiction, to declare a trust in Miss Donnelly for
the benefit of the Tybout heirs, under section 2224 of the
Civil Code, and under the general jurisdiction vested in the
superior court by the constitution and codes.
The superior court, sitting in probate matters, has no
greater jurisdiction than the probate court which it suc-
ceeds: Estate of Hudson, 63 Cal. 454; Dean v. Superior
Court, 63 Cal. 473.
It follows that the subject matter of the "exceptions"
and petition of the Tybout heirs is not entertainable by
this court while it is engaged in the exercise of probate
jurisdiction ; it does not constitute a cause of action that
can here and in the manner presented be tried by the
court which can only consider the probate law and prac-
tice. "Cases in equity," "cases at law," "matters of pro-
bate," are all separately described in the constitution (ar-
ticle 6, section 5), and while the court is engaged in the
consideration of a case belonging to one of these classes it
cannot, in the same matter, hear and determine what is es-
sentially a case of another class mentioned in the constitu-
tion. The supreme court seems to have so settled the law;
and it is the duty of this court to decide accordingly.
Matter of Mrs. HANNAH W. INGRAIM.
[Decided December 1, 1884.]
Insanity. — In Order to Commit a Person to an Asylum for the in-
sane, the court must be satisfied, upon examination, pursuant to sec-
tion 258, Civil Code, that such person is of unsound mind, and unfit
to be at large. The provisions of the codes as to such examination
summarized.
Insanity. — There are no "Commissioners of Insanity." Physicians
are merely summoned to hear the testimony, and to make a personal
138 Coffey's Probate Decisions, Vol. 1.
examination of the alleged insane person; and, if they believe him
to be dangerously insane, they make a certificate of certain facts,
whereupon it is reserved to the judge, upon whom rests the responsi-
bility, to adjudicate upon the charge.
Insanity. — Although a Person is Subject to Certain Delusions,
where the court is not satisfied that he is "so far disordered in mind
as to endanger health, person or property," or "unfit to be at large,"
it is bound to give him the benefit of such reasonable doubt as it en-
tertains upon the whole charge.
Application to confine Mrs. Hannah W. Ingram, an al-
leged insane person, in the insane asylum.
COFFEY, J. Before the court can order the commit-
ment of any person to an asylum for the insane it must
be satisfied, upon examination in open court, and in the
presence of such person, from the testimony of two repu-
table physicians, that such person is of unsound mind, and
unfit to be at large : Civ. Code, sec. 258.
Whenever it appears by affidavit, to the satisfaction of
a magistrate of the county, that any person within the
county is so far disordered in his mind as to endanger
health, person or property, he must issue and deliver to
some peace officer for service a warrant, directing that such
person be arrested and taken before any judge of a court
of record within the county for examination.
Subpoenas must issue thereupon to two or more wit-
nesses best acquainted with such person to appear and tes-
tify before the judge at such examination; the judge must
also subpoena at least two graduates of medicine to appear
and attend such examination ; and all such persons so
subpoenaed must appear and answer all pertinent questions;
the physicians so called in by process of subpoena must hear
such testimony and must make a personal examination of
the alleged insane person, and must make a certificate of
their conclusions; and then the judge, after such examina-
tion and certificate made, if he believes the person accused
to be so far disordered in mind as to endanger health, per-
son or property, must make an order that such person be
confined in the asylum. A record of all such proceedings
must be kept by the county clerk. The physicians attend-
Matter of Ingram. 139
ing the examination of "an insane person" are allowed a
fee, to be paid by the county.
The foregoing is a summary of all the pertinent provi-
sions of the codes, with reference to this character of cases :
Pol. Code, 2210-2222.
An impression seems to prevail that there are certain
"Commissioners of Insanity" who pass upon these cases.
An examination of the codes will make manifest the error
of this impression. The so-called "commissioners" are
simply physicians, "graduates of medicine," in good stand-
ing, who are summoned in the same manner as other wit-
nesses to attend the hearing; but it is reserved to the judge
of the court to find the fact and to adjudicate thereupon.
Upon the judge or the court the law casts the responsibility,
and to discharge it faithfully is not always a light duty; in
this case it has been more than ordinarily onerous, from the
peculiar circumstances, the character of the evidence, and
the conduct pending the examination and in view of the
court of the parties immediately connected with the subject
matter of the investigation.
As a result of the examination, and the subsequent re-
flections thereupon, the court is convinced that Mrs. Ingram
is the victim of a delusion as to the relations of Miss Pratt
with her husband, and has, while possessed of that delusion,
subjected that lady and her family to great annoyance and
indignity ; but the court is in doubt as to the dangerous
nature of the delusion, is not fully persuaded that the ac-
cused person is "so far disordered in mind as to endanger
health, person or property." or is "unfit to be at large,"
and the court is bound to give the accused person the benefit
of such reasonable doubt as it entertains upon the whole
charge. This is the conclusion from a full investigation and
mature deliberation ; and, accordingly, the proceeding against
Mrs. Hannah W. Ingram is dismissed.
140 Coffey's Probate Decisions, Vol. 1.
Estate of ELLEN LYNCH, Deceased.
[No. 3,079; decided June 30, 1884.]
Partial Distribution — Time for Making. — An application for partial
distribution of a decedent's estate in course of administration may-
be made at any time after the period of administration mentioned in
the statute, upon allegations showing the existence of the conditions
and circumstances required by the statute.
Partial Distribution— Time for Making.— The rule prescribed by the
statute, as to whom and under what circumstances a partial distrib-
ution of a decedent's estate may be had, is the same whether the
decedent left a will, or died intestate. And a petition for the partial
distribution of a testate's estate is not premature merely because the
year given by the statute, within which a contest to the probate of
the decedent's will may be filed, has not elapsed.
The opinion of the court in this case was rendered upon
objections made to two separate petitions for distribution
after the lapse of four months of administration — "partial
distribution," as usually designated. The first filed petition
was that of Margaret Daly, presented June 6, 1884, showing
that petitioner was a legatee under decedent's will, which
had been duly proved, to the extent of $1,000, and certain
specified household furniture; that four months had elapsed
since the issuance of letters testamentary to John D. Cough-
lin and Daniel J. Coughlin, the executors named in the will,
who qualified May 24, 1884, and prayed for distribution of
the legacies upon giving the bond required by the statute.
The second petition was filed June 7, 1884, on behalf of
and subscribed by (1) Catherine Riley, (2) Margaret Ware,
(3) Margaret Weston, (4) Hannah Sullivan, (5) Adina
Gertrude Ware, (6) Frances Ellen Ware, (7) Henry Ware
(8) Mary Cunningham, (9) Miss Lizzie Armor, Superioress
of the Convent of the Holy Family, and (10) Daniel J.
Coughlin ; and set forth the same facts respecting the ad-
ministration as in the petition of Margaret Daly, first above
mentioned. No attorney's name appeared upon either of
the petitions, but it is recited by the record that Selden S.
Wright, as the appointee of the court, appeared for them.
The two petitions came on regularly for hearing on the
twentieth day of June, 1884, and a decree of "partial
Estate of Lynch. 141
distribution" was made according to the prayers of the
petitioners, under date of June 20, 1884, and was filed on
the twenty-fourth day of June, 1884.
The record shows that Selden S. Wright, was appointed
by order of June 6, 1884, as attorney to represent in the
administration all unrepresented heirs and legatees, naming
the parties interested, so far as known, to be Mary Riley,
Ellen Riley, Anastasia Riley, Johanna Riley, David Riley,
Henry Riley, Michael Riley and Patrick Riley. All of
these parties named were legatees and also nephews and
nieces respectively, and heirs of deceased; and resided at St.
Peters, Cape Breton, Nova Scotia. None of them were peti-
tioners for or participants in the ' ' partial distribution. ' '
Selden S. Wright, for petitioners.
E. E. Haft, contra, for executors.
COFFEY, J. It is suggested, on behalf of executors that
the petition for partial distribution is premature; that a
year (the time to contest the validity of the will) should
elapse before the application.
Under the authority of the Estate of Pritchett, 51 Cal.
568, the petition is not prematurely preferred, the essential
facts and the principle of this matter corresponding to the
facts and principle in that case. Petition granted.
The Rule that the Final Distribution of an estate may be had upon
the settlement of the final account of the executor, or at any subsequent
time (Estate of Thayer, 1 Cal. App. 104, 81 Pac. 658; McAdoo v.
Sayre, 145 Cal. 344, 78 Pac. 874), was invoked in Ee Pritchett, 51
Cal. 568, 52 Cal. 94, although the time for contesting the will had
not yet expired.
142 Coffey's Probate Decisions, Vol. 1.
Estate and Guardianship of SUSANNA ZIMMER, Minor.
[No. 2,860; decided December 22, 1883.]
Guardian — Nomination by Minor. — A minor, aged sixteen years,
who is intelligent and of fair education, is legally competent to nomi-
nate her own guardian, subject to the court 's approval.
Guardian — Nomination by Minor. — Although an intelligent minor
over fourteen years of age is competent to nominate its own guardian,
and its intelligent preference for a guardian must be considered, yet
the court must be guided in its determination by what appears to be
for the child 's best interests, as to its temporal, mental and moral
welfare.
Guardian. — The Nomination and Preference of the Minor in this
case of her aunt for guardian as against the child's mother, who had
remarried after divorce from the child 's father to one who was the
object of the child's aversion — discussed, but not decided.
Guardian — Nomination by Minor. — In this case it was held that an
application for guardianship by the minor's nominee should be de-
nied, although the applicant and minor were closely related and af-
fectionately disposed toward each other, having lived and loved as
if mother and child for years; it appearing that, from the circum-
stances of the applicant, a grant of guardianship would not be for
the best interests of the child as to its temporal welfare.
Guardian — Nomination by Minor— Nonresidence. — Where an appli-
cant for guardianship of a minor, claiming as the minor 's nominee,
is a nonresident of the state, and only awaits the determination of
the application to return home, the court will not be justified in con-
firming the minor's choice, even if legally permitted to do so.
Guardian — Nomination by Minor. — In this case the court, in de-
termining an application for guardianship upon the nomination of
the minor over fourteen years of age — involving the minor's compe-
tency and the applicant 's rights, with the court 's duty in the prem-
ises^considered and construed sections 1748, 1749, Code of Civil Pro-
cedure, and section 246, 253 (subdivision 6), Civil Code.
In this case the record shows the filing of two separate
petitions for the guardianship of the above-named minor,
Susanna Zimmer. The first application was filed by Mrs.
Susanna Smith on October 12, 1883. It is alleged that the
minor was a resident of the city and county of San Fran-
cisco ; that the minor was and had been for ten years last
past in the exclusive custody of the petitioner, and had
been by petitioner maintained and educated; that the minor
Guardianship of Zimmer. 143
was aged sixteen (16) years and four (4) months, and that
her mother was married to the stepfather of the minor. An-
nexed to the petition was a written request and nomination
of the minor, dated October 9, 1883, in favor of the peti-
tioner. The second application for guardianship of the
minor was made and filed by Julia Krone, and alleged that
the applicant was the mother of the minor, the minor being
a resident of the city and county of San Francisco; that the
applicant was by a decree of the "fifteenth district court"
granted a divorce from Ernst Zimmer, the father of the
minor, on the ground of adultery on the part of said father,
and that by the same decree the custody of said minor was
awarded to her (the applicant). Neither of the applicants
filed any answer to the petition of the other, so far as the
record in the guardianship shows; and the opinion of the
court expressly states that it was delivered only with respect
to the application of Mrs. Susanna Smith, without decisively
passing upon the merits or legal standing of the mother's
petition. As to the decision of the court being based upon
the nonresidence of the applicant, it should be noticed that
both of the applicants carefully alleged the residence of
the minor as hereinabove stated.
Matt. I Sullivan, for Susanna Smith.
E. J. Linforth, for Julia Krone.
COFFEY, J. Application of Susanna Smith for letters
of guardianship of the person of Susanna Zimmer, a minor,
The minor is an intelligent girl of about the age of sixteen
years, of fair education, and legally competent to nominate
her own guardian, subject to the approval of the court : Code
Civ. Proc, sees. 1748, 1749. She is capable of expressing an
intelligent preference, and the court should consider that
preference in determining the question : Civ. Code, sec. 246.
But the court must be guided in so determining by what
appears to be for the best interest of the child, in respect to
its temporal and its mental and moral welfare: Civ. Code,
sec. 246. The nominee of the minor is doubtless a worthy
woman, and affectionately disposed toward the child, with
whom she has l)eon familiarly associated for mauv vears.
144 Coffey's Probate Decisions, Vol. 1.
The minor has been treated by this lady, who is her aunt,
as if she were her own child ; has lived in her family with
the consent of her own parents for several years; and has
been educated largely through the kindness, affection and
liberality of the applicant and her husband. All of this
the minor acknowledges and appreciates; and she desires
to remain in the relation she has sustained for so long a
period. She manifests no want of affection towards her
mother, who is a counter-applicant here, but has an aversion
toward her stepfather, her own father being legally separated
from her mother, who is married a second time, to the object
of this minor's aversion.
Without considering now the counter-application of the
mother, it is sufficient to say that the court considers that
with reference to the competency of the nominee of the minor,
it does not appear from the evidence to be for the best inter-
est of the child, in respect to its temporal welfare (Civil Code,
section 246) to commit her to such custody; and it further
appearing from the evidence that the nominee of the minor
is a resident of the state of Nevada, having her home for
many years in that state, and only awaiting the determination
of this application to return thither, the court would not be
justified in confirming, even if legally permitted to confirm,
the choice of the minor: See Civ. Code, sec. 253, subd. 6.
Application denied.
The Wishes or Judgment of a Child of sufficient maturity to realize
in a measure his situation cannot, independent of or despite other
circumstances, control the court in the determination of his custody:
Stapleton v. Poynter, 111 Ky. 264, 98 Am. St. Eep. 411, 62 S. W.
730, 53 L. R. A. 784.
Estate of Maxwell. 145
Estate of RICHARD T. MAXWELL, Deceased (No. 3).
[No. 2,625; decided January 27, 1885.]
Will — Supplsring Defects l)y Implication. — When, from the whole
will, the court can determine that the testator necessarily intended
an interest to be given, which is not bequeathed by express and
formal words, the court should supply the defect by implication, and
so mold the testator's language as to carry into effect, as far as pos-
sible, the intention which he has in the whole will sufficiently de-
clared.
Will — Construction Avoiding Partial Intestacy. — The law prefers a
construction of a will which will prevent a partial intestacy, to one
which will permit such a result, unless a construction involving par-
tial intestacy is absolutely forced upon the court, for the fact of
making a will raises a very strong presumption against any expecta-
tion or desire, on the part of the testator, of leaving any portion
of his estate beyond the operation of his will.
Wills — Construing Parts in Relation to Each Other. — All the parts
of a will are to be construed in relation to each other, and so as
if possible to form one consistent whole.
Will — Contradictory Clauses. — Where several parts of a will are ab-
solutely irreconcilable, the latter part must prevail; but the former
of several contradictory clauses is never sacrificed except on the
failure of every attempt to give all such a construction as will
render every part effective.
Will.— When the Meaning of Any Part of a Will is Ambiguous
or doubtful, it may be explained by any reference thereto or recital
thereof in another part of the will.
Will.— The Words of a Will are to be Taken in Their Ordinary
and Grammatical Sense, unless a clear intention to use them in an-
other sense can be collected, and that other can be ascertained.
Will. — The Words of a Will are to Receive an Interpretation
which will give to every expression some eft'ect, rather than one
which will render any of the expressions inoperative.
Will. — Where a Testator Gives to B a Specific Fund or property
at the death of A, and in a subsequent clause disposes of all his
property, the combined effect of the several clauses, as to such fund
or property, is to vest it in A for life, and after his decease in B.
Will. — A Will Consisting of Several Parts, separately executed by
the testator, must be considered as a single instrument completed
in all its parts at one time.
Prob. Dec, Vol. I— 10
146 Coffey's Probate Decisions, Vol. 1.
Daniel Rogers, for applicants, the executors.
Thos. I. Bergin, for Miss Elena Donnelly.
A. F. Morrison, for Miss Margaret McKenzie.
J. R. Brandon, for the Tybout heirs.
COFFEY, J. This is an application on the part of Daniel
Rogers and Charles Ashton, executors of the last will and
testament of Richard Tybout Maxwell, deceased, for distri-
bution, according to "the provisions of said will"; and the
application involves a construction of the terms of said in-
strument, which (as usually occurs in cases where a man
draws his own will) has been variously interpreted according
to the desire of the interested interpreter. The views of the
court as to the correct construction are appended.
"Where it is possible for the court, upon a reading of the
whole will, to arrive at a conclusion that the testator neces-
sarily intended an interest to be given, which is not be-
queathed by express and formal words, the court should
supply the defect by implication, and so mold the language
of the testator as to carry into effect, as far as possible, the
intention which it is of opinion that he has on the whole
will sufficiently declared : Metcalf v. Framingham Parish, 128
Mass. 370. See opinion of Mr. Chief Justice Gray, p. 374.
The law prefers a construction of a will which will prevent
a partial intestacy to one which will permit such result
(Vernon v. Vernon, 53 N. Y. 361, opinion by Mr. Justice
Andrews), unless such construction involving partial intes-
tacy is absolutely forced upon the court, which rule of prefer-
ence has been adopted partly from considerations of policy,
but mainly because it is calculated to carry into effect the
presumed intention of the testator; for the fact of mak-
ing a will raises a very strong presumption against any
expectation or desire, on the part of the testator, of leaving
any portion of his estate beyond the operation of his will :
2 Redfield on Wills, 3d ed., *116, and see note thereunder 32.
All the parts of a will are to be construed in relation to
each other, and so as if possible to form one consistent
whole, but where several parts are absolutely irreconcilable,
Estate op Maxwell. 147
the latter must prevail : Civ. Code, sec. 1321. Where the
meaning of any part of a will is ambiguous or doubtful, it
may be explained by any reference thereto, or recital thereof,
in another part of the will : Civ. Code, sec. 1323. The words
of a will are to be taken in their ordinary and grammatical
sense, unless a clear intention to use them in another sense
can be collected, and that other can be ascertained : Civ. Code,
sec. 1324. The words of a will are to receive an interpreta-
tion which will give to every expression some effect, rather
than one which will render any of the expressions inoper-
ative: Civ. Code, sec. 1325. The rule which sacrifices the
former of several contradictory clauses is never applied but
on the failure of every attempt to give to the whole such a
construction as will render every part of it effective. Where
a testator gives to B a specific fund or property at the death
of A, and in a subsequent clause disposes of the whole of his
property, the combined effect of the several clauses as to such
fund or property is to vest it in A for life, and after his
decease in B : 2 Jarman on Wills, 49, 5th Am. ed., *476.
In applying these principles of construction to the instru-
ment before me (a copy of which is hereunder inserted) :
"San Francisco, July 23, 1882.
"Fully aware of the uncertainty of life, and being of
sound mind and memory, I declare this to be my last will and
testament, hereby revoking all wills and codicils to wills by
me heretofore made.
"The dilatory habits of my counsel employed in the di-
vorce suit, recently decided in my favor in the Superior
Court, having left thus far the matter incomplete in this,
that the quit-claim deed from the former Mrs. M. W. Max-
well has not yet been signed and returned by her, nor has the
mortgage in her favor upon my land in Napa County, secur-
ing to her the sum of one hundred and twenty-five dollars per
month, been submitted to me for signature, I desire that my
executors may at once, if it is possible, have this matter
settled on this basis. Should this be impossible, she is of
course entitled to her half of the property I leave behind
me, which is all community property. Shou.ld it, under these
circumstances, be necessary to sell in order to divide, it is
148 Coffey's Probate Decisions, Vol. 1.
my desire that my executors shall, after paying all my
debts, be appointed trustees by the Court, and that they shall
receive as my bequest in trust the balance of the estate which
I desire shall (if the property has been necessarily in their
judgment sold to effect a division) be invested in first mort-
gages on real estate of unquestionable title, and the monthly
income derived therefrom be equally divided between Miss
Nellie Donnelly, residing at 2103 Jones street, with her par-
ents, and Miss Margaret McKenzie, living at the northwest
corner of Folsom and Second streets, that I may, so far as
is in my power, prove my appreciation of their kindness
and my sincere friendship for them both, trusting that I may
lessen the burden of life to each of them. In case of the
death of either of them, I wish the whole income paid to the
survivor, and after her death the whole amount or then value
of the property to be equally divided between the living
children of my sister, Mrs. Elizabeth C. Tybout, living in New
Castle County, Delaware.
"I hereby appoint Daniel Rogers, Esq., and Mr. Charles
Ashton my executors, and direct that no bonds shall be re-
quired. RICHARD TYBOUT MAXWELL.
"It is my earnest desire that if possible the real estate
in Napa County shall not be sold, but held for some years,
and rented on shares or otherwise by some competent person,
and that it shall, after the lien upon it in the shape of the
mortgage given or to be given to Mrs. Maxwell (formerly)
shall have been removed by her death, be still so managed
by my executors, or rather as they will then be the trustees
for the heirs, and that Miss Margaret McKenzie shall, under
these circumstances, receive during her life an income of one
hundred dollars per month, if this does not exceed one-half
of the income from the property, and the estate be in that
case conveyed entire to Miss E. Donnelly, to whom I hope to
be married, should my life be spared, in a few months. All
of this expression of my desires as to settlement of my prop-
erty is in consequence of my knowledge of the dangers at-
tendant upon a surgical operation, to which I expect to be
subjected in a short time.
"RICHARD TYBOUT MAXWELL."
Estate of Maxwell. 149
I must consider it as one single instrument, completed in
all its parts at one time, and, as such it was probated. From
this instrument it appears that the testator had in view three
objects: (1) the satisfaction of the lien upon the estate in
favor of his former wife; (2) the provision of an income for
Miss Donnelly and Miss McKenzie, that he might 'lessen
the burden of life to each of them," in recognition of their
kindness to him and his friendship for them; and (3) the
division of the proceeds of his property after the death of the
others named to the children of his sister, Mrs. Tybout. The
latter part of this instrument is to be reconciled, if possible,
to the foregoing provisions : Civ. Code, sec. 1325 ; 2 Jarman
on Wills, 49, *476.
This latter portion, which is claimed to operate as a revo-
cation, should not be so construed, unless it is absolutely irrec-
oncilable with the rest. It evidently was designed by the
testator that the Tybouts should have the benefits of his
bounty, after his other assumed obligations had been dis-
charged by the death of the beneficiaries, and the latter
part of the will may be reconciled with this intention by
considering the contingency, and providing for it, of the
death of the former Mrs. Maxwell, and in that event a larger
amount coming into the hands of the trustees, in which case
a fixed certain sum might be paid to Miss McKenzie, thus
dispensing with the necessity of trustees to divide the estate,
and enabling them to convey it entire to Miss Donnelly ; that
is to say (by way of interpretation), the estate held by the
trustees is to be conveyed to Miss Donnelly to enjoy during
her life, subject to the payment of $100 per month to Miss.
McKenzie. This seems to me to be the combined effect of the
several clauses of the will (Jarman on Wills, 476), and I
conceive it to be the correct construction of this instrument.
Throughout the paper the testator's intention seems to
be to make life provision for Miss Donnelly and ^liss
McKenzie, to "lessen the burden of life to each of them,"
as he expresses it ; and his intention is quite manifest to pro-
vide for his sister's children, after provision for Miss Don-
nelly and Miss McKenzie should be no longer necessary; to
secure these two named ladies against want was his clear
150 Coffey's Probate Decisions, Vol. 1.
design, by imposing a life lien upon his estate, and after that
to give the remainder to the children of his sister. If this
be not the true interpretation of his intention, he has cer-
tainly chosen his words cleverly to conceal his meaning; but
I think that, upon a study of the whole instrument, I have
arrived at the correct conclusion.
Daniel Rogers renounces his trust as trustee under the
will, and his coexecutor, Charles Ashton, accepts the trust
devolved upon him by the testator, and the estate should be
distributed to him for the purposes named in said will,
according to the provisions thereof as construed by the court
in the foregoing opinion.
Application granted.
All the Various Parts of a Will are Construed in relation to each
other, so as to form, if possible, one consistent whole; but if differ-
ent parts are irreconcilable, the latter prevails: Cal. Civ. Code,
1321; Mont. Civ. Code, 1773; N. D. Eev. Code, 5133; Okl. Eev.
Stats. 6841; S. D. Civ. Code, 1040; Utah Eev. Stats. 2771.
The Making of a Will Raises a Presumption that the testator in-
tended to dispose of all his property. And constructions which lead
to intestacy, total or partial, are not favored. Therefore such an
interpretation should, when reasonably possible, be placed upon the
provisions of a testamentary instrument as will prevent that result.
These principles have been made a part of the statutory law. Of
course, if the expressed intent of a testator is intestacy, he must
be presumed to have intended that result: 1 Eoss on Probate Law
and Practice, 78.
Estate of BRIDGET McGOVERN, Deceased.
[No. 2,643; decided October 23, 1883.]
A Cost Bill is not Piled, if not delivered to the clerk nor received
by him.
Filing a Paper Consists in Presenting It at the Proper Office and
leaving it there, deposited with the papers in such office.
Filing Papers. — Section 1030 of the Political Code Defines and Fixes
the hours during which public offices shall be kept open; and a paper
which is left in a public office one hour after the time fixed by law
for its closing, is left there when the office is legally closed.
Estate of McGovern. 151
Where a Cost Bill is Left in the Clerk's Office About One Hour
After the Time specified by law for the closing of the office, there
being no person present authorized to receive and file it, the paper
is not filed; and if the date of the alleged filing is the last day
allowed by the statute for filing the bill, a motion to strike it out
should be granted.
The opinion of the court in this case was rendered upon
a notice of motion to strike out cost bill filed August 28,
1883. The notice was given by M. Cooney, the attorney
theretofore appointed by the court to appear "for Ellen
McPartry, of Ireland, John Simpson, of Philadelphia, Ann
Halligan, of Philadelphia, Rose Kenney, Boston, to repre-
sent them upon the contest and application for the probate
of the alleged will on file herein, and upon all subsequent
proceedings in the estate; such persons being heirs of de-
ceased (Bridget McGovern)."
The notice of motion was directed to a cost bill claimed
to have been filed August 23, 1883, but which appears by the
record to have not been actually filed till January 12, 1884;
this cost bill was presented by John McQueeny and Edward
McFernan, proponents and executors of the last will of the
deceased, and purported to be a memorandum of costs in-
curred on the contest to the probate of the will; the contest
having been made by the heirs named aforesaid, represented
by M. Cooney. The ground specified in the notice of motion
to strike out was, among other grounds, first, that the cost
bill "was not filed or served within five days after the de-
cision and judgment of the court was made, and the ^der
admitting the will to probate was made and entered." The
opinion of the court is directed solely to this first ground,
and the facts supporting that ground are fully set out in
the opinion.
M. Cooney, for the motion.
C. F. Hanlon, contra.
COFFEY, J. The cost bill in this matter was not deliv-
ered to the clerk, nor received by him. "Filing a paper
consists in presenting it at the proper office, and leaving it
there deposited with the papers in such office." Accordino-
152 Coffey's Probate Decisions, Vol. 1.
to the evidence, the office was legally closed when the paper
was left there: Pol. Code, sec. 1030. No person authorized
to receive it and file it was present — it being about one hour
after the closing of the office (Pol. Code, sec. 1030), and there
w^as no person present to whom it could be "presented,"
nor does it appear it was "deposited with the papers" in
the office. This paper never was filed, in the sense of the
statute.
Motion to strike out granted.
Estate of WILLIAM LUND, Deceased.
[No. 351; decided October 20, 1884.]
Attorney. — An Administratrix has Power to Employ an Attorney
to institute proceedings to recover damages for the death of her
intestate.
Attorney — Compensation. — An Attorney Who Renders Services
for the Benefit of an estate, at the request of the administratrix
thereof is entitled to reasonable compensation therefor. The pro-
bate department is the proper forum in which to present his claim
for such services; they are "expenses of administration," and the
probate department has exclusive jurisdiction to adjust and enforce
such demands.
Attorney — Contingent Fee. — An Administratrix has no Power to
Make a Contract with an Attorney for the payment of a contingent
fee to him out of the assets of the estate. But the employment of
an attorney to perform services, and a promise to pay him a contin-
gent fee for such services, are separable. The retainer of the attor-
ney, and rendering of services by him in pursuance of such retainer,
may be considered by the court apart from the promise to pay a
contingent fee, and the compensation will be adjudged according
to the proof of the reasonable value of the services. An attorney
accepting employment and rendering services, under such circum-
stances, must rely upon the subsequent action of the court in ad-
judging proper compensation, and consents to perform his duty with-
out other compensation than may so be allowed.
William Lund died intestate in San Francisco, a resident
thereof, and leaving estate therein, on the sixth day of April,
1880.
He left a surviving w^ife, Catherine Lund, who, upon peti-
tion filed on June 16, 1880, was appointed administratrix
Estate of Lund. 153
of his estate on June 28, 1880, and letters of administration
were issued to her on July 6, 1880.
The petition for probate stated that the estate of the dece-
dent consisted of certain personal property, and a claim for
damages against the Spring Valley Water Works, arising
by reason of negligence of that corporation, which caused
the death of Mr. Lund.
On July 21, 1884, P. B. Nagle filed a petition in the matter
of the estate, in which he alleged that the administratrix,
as such, employed him to institute and prosecute an action
against the Spring Valley Water AVorks, on the above-men-
tioned claim; that the administratrix agreed to pay all the
costs and expenses of the action, and to pay the petitioner
one-half of all that was recovered therein, as compensation
for his services.
That accordingly petitioner commenced said action on her
behalf, on the twenty-eighth day of February, 1881, and that
he diligently prosecuted the same; that the action was tried
before a .jury, but that the .jury failed to agree; that there-
after petitioner was ready and willing to enter upon a second
trial of said action, provided the administratrix paid the
costs and expenses of such trial, but that she refused to do so,
and on July 13, 1882, discharged the petitioner as her attor-
ney in said action, and employed P. F. Dunne in his place
and stead, who was regularly substituted therein ; that on
February 15, 1883, the administratrix recovered judgment
against the Spring Valley Water Works in said action for
the sum of $4,000 and costs, which .judgment was paid in
March, 1884; that the reasonable value of the services of
petitioner in said action up to the time of his discharge was
$500, and that the administratrix refused to pay the same,
hence he asked that said sum be allowed him, and that the
administratrix be ordered to pay it.
To this petition the administratrix filed a denuirrer on
July 28, 1884, specifying as grounds therefor that it ap-
peared from the petition that P. F. Dunne, and not the
petitioner, performed the services which resulted in the re-
covery of the judgment, and that under petitioner's contract,
as alleged by him, his compensation was dependent upon a
154 Coffey's Probate Decisions, Vol. 1.
recovery by him, and, further, that it appeared that the
contract was illegal and void.
James L. Nagle, for petitioner.
R. H. Taylor, for administratrix.
COFFEY, J. This department is the proper forum in
which to present the claim of petitioner: Gurnee v. Maloney,
38 Cal. 87, 99 Am. Dec. 352.
Services rendered at the request of an administratrix,
for the benefit of an estate, are "expenses of administra-
tion," and the probate department has exclusive original
jurisdiction to adjust and enforce such demands: Ibid.
If it shall appear that the petitioner performed any ser-
vice for the advantage of the estate at the instance and
request of the administratrix, the court will award such com-
pensation as, in its opinion, such service may be reasonably
worth.
The administratrix had the power to employ counsel for
the purpose indicated in the petition, although not to make
a contract for the payment of a contingent fee out of the
assets of the estate. These two things are to be separately
considered; they are separable. The retainer of an attorney,
and the rendering of service by him in pursuance of such
retainer, is what the court may consider; and, according to
the proof, his compensation will be adjudged by the court:
Estate of Page, 57 Cal. 238.
An attorney accepting employment and rendering ser-
vices under such circumstances, must rely upon the subse-
quent action of the court in ascertaining and adjudging
proper compensation. In accepting the employment he con-
sented to perform his duty without other compensation than
such as might be allowed by the court : Cole v. Superior
Court, 10 Pac. C. L. J. 732 (S. C, 63 Cal. 86, 49 Am. Rep.
78).
I understand the claim of petitioner to be on the score
of services rendered for the benefit of the estate, and at
the request of administratrix; and he should be allowed to
prove whether he rendered any such services at any such
request, and their value.
Demurrer overruled; fifteen days to answer.
Estate of Jennings. ' 155
An Executor or Administrator is Entitled to an Allowance for Legal
Services rendered him both in conducting the ordinary probate pro-
ceedings and in conducting necessary litigation. In fact, he is enti-
tled to reasonable attorney fees in any matter, arising in the ad-
ministration of the estate, which calls for legal advice or counsel:
Elizadale v. Murphy, 4 Cal. A pp. 114, 87 Pac. 245; Estate of Miner,
46 Cal. 564; Estate of Simmons, 43 Cal. 543; Hicox v. Graham, 6
Cal. 167; Steel v. Holladay, 20 Or. 462, 26 Pac. 562; Nash v. Wake-
field, 30 Wash. 556, 71 Pac. 35; Estate of Davis, 33 Mont. 539, 88
Pac. 957.
Estate of A. A. JENNINGS, Deceased.
[No. 8,962, former Probate Court; decided Nov. 22, 1883.]
Administrator's Sale — Advance Bids and Resale. — When, upon the
hearing of a return of an administrator's sale of personal property,
the purchaser increases his bid from $3,000 to $5,000, it is manifest
that the price obtained is greatly disproportionate to the value of
the property; and in such case the court will refuse confirmation
of the sale, and will order a new sale to be had under circumstances
calculated to bring the utmost value of the property. •
In this case, on the nineteenth day of July, 1882, Barbara
Jennings, the administratrix with the will annexed, filed a
petition praying for an order of sale of certain personal
property, being the only property of the estate, and desig-
nated, "Assessments and contracts for street work done in
said city and county (of San Francisco) by said deceased."
And in the petition particularly described there were four
contracts set out, upon which there were due the following
amounts, to-wit: Upon the first, $12,576.88; upon the second,
$590.52 ; upon the third, $12,887.56 ; and upon the fourth,
$10,077.34. After five days' notice given by posting, the
court (by Hon. Jno. F. Finn, Judge) on July 25, 1882,
made an order of sale of the property described in the
petition aforesaid, and directed that the admininstratrix sell
the same "by public auction, and after public notice given
for at least two days by publication in the 'Daily Chron-
icle,' a newspaper published in said city and county (of San
Francisco)." A verified return and account of the sale of
the property under the aforesaid order was made by the
156' Coffey's Probate Decisions, Vol. 1.
administratrix and filed August 9, 1882, and showed that all
of the property was sold to one C. J. Shipman, for $500.
On October 2, 1882, Mr. C. H. Parker, as attorney for certain
creditors of the estate, filed written objections to a confirma-
tion of the sale returned, detailing a great many exceptions
to the proceedings taken in the premises. Upon the eleventh
day of IMay, 1883, the hearing of the said return coming on
"after due continuances and upon due notice," and the
court (Finn, Judge) finding that the price obtained was
disproportionate to the value of the property, and that upon
a resale at least $1,000 v/ould be obtained, made an order
that the sale be not confirmed, but that it be set aside, and
that the administratrix resell the property under the orig-
inal order of sale.
Upon August 30, 1883, the administratrix filed a return
and account of sales made under the order of resale of May
11, 1883, showing that the property was sold at public
auction in several parcels as follows : Lot No. 1, to C. G.
Shipman for $100; lot No. 2, to C. G. Shipman, for $10;
lot No. 3 to J. C. Fruchey for $3,000 ; and lot No. 4, to C.
G. Shipman for $100. On the fourteenth day of Septem-
ber, 1883. Mr. C. H. Parker, as attorney for certain creditors,
objected to the confirmation of the sale of the property sold
to Fruchey for $3,000. There were thirteen written excep-
tions and objections to this sale, detailed at great length, and
included all the technical points made in the objections
filed by said attorney to the previous sale of the property;
bvit these grounds and technicalities are not stated here, as
the only matter considered by the court was the objections
taken by the twelfth and thirteenth grounds, viz.: (1) that
the amount bid was disproportionate to the value of the prop-
erty; (2) that a sum exceeding ten per cent, exclusive of
expenses of new sale, could be obtained if a new sale were
ordered.
On September 21, 1883, C. H. Parker filed a written bid
for the property sold Fruchey, of $4,000, and expenses of
readvertising, and stipulating to pay $5,000 if the property
w^ere sold in a particular manner (that is to say, the prop-
erty sold was a contract and assessment for grading a certain
Estate of Armstrong. 157
block of land; and it was claimed that the property should
be so sold as to give each property owner in the block,
against whom there was an assessment, an opportunity to
bid upon it).
Upon September 25, 1883, J. C. Fruchey, the purchaser
aforesaid, made and filed an advance bid of $5,000, and
authorized the return of sale to be amended by inserting the
said amount in place of the sum of $3,000, bid by him at
the auction. On November 23, 1883, the court ordered an-
other resale of the entire four parcels of property in con-
formity with the opinion of his honor, Judge Coffey, below,
and at such resale it appears that the property before sold
to Fruchey was sold to Chipman for $6,500.
C. H. Parker, attorney in support of objections.
J. M. Wood, for the administratrix, contra.
COFFEY, J. It is manifest from the offer of Mr.
Fruchey 's attorney to increase his bid of $3,000 to $5,000,
that the price obtained at the sale was greatly disproportion-
ate to the value of the articles sold. I have fully considered
all the points made by counsel on both sides, in oral argu-
ment and in briefs, and, while conceding the cogency of Mr.
Wood's presentation of views, cannot consider it conclusive.
I adhere to the view intimated by me at the hearing, as the
correct conclusion — the sale cannot be confirmed ; and a new
sale should take place under circumstances calculated to
bring the utmost value of the property.
Estate of MARGARET AR^ISTRONG, Deceased.
[No. 2,054; decided December 12, 1883.]
Trustee — Use and Management of Funds. — An agent or trustee has
no right to use the funds intrusted to him as his own, nor to min-
gle them with his own funds, without clear authorization; it is his
duty to keep the funds separate and intact, and free from any lia-
bility such ns he incurs in the use of his own moneys.
Trustee — Management of Funds. — An agent or trustee must pur-
sue with exactitude the instructions given as to funds intrusted
158 Coffey's Probate Decisions, Vol. 1.
with him, or show that his particular act was ratified with full
-knowledge on his principal's part as to the nature of the act.
Trustee — Loaning Funds. — Where an agent or trustee is instructed
to "loan out" funds held by him, it means that he is to invest
them for his principal 's account, and to make an accounting to the
principal of such investment. He is not authorized to borrow the
funds for his own purposes.
Trustee — Investment of Funds. — Where confidence is reposed in a
trustee to judiciously invest the funds in his hands, this confidence
is abused when he places himself in the position of a debtor to
the principal, without fully advising the latter of the risk he runs,
and giving him an opportunity of knowing the hazard that the
funds are subjected to.
Where a Trustee to Invest has Made Himself a Debtor to His
Principal, and thereby subjected the funds to a risk and hazard, he
must show that he fully advised his principal in the premises, in
order to avoid responsibility for the loss his conduct may cause.
Trust — Limitation of Actions. — Where one occupies a fiduciary re-
lation, the statute of limitations cannot avail as a defense. Lapse
of time is no bar to a subsisting trust, clearly established.
Trust — Limitation of Actions. — Where one has occupied a fiduciary
relation, the statute of limitations cannot be availed of, unless and
until a demand on the part of the principal, and a refusal by the
trustee, are shown.
Trust. — The Following Language in a Letter Written by One Who
has Collected and holds moneys for another, establishes a trust:
"It leaves a balance in your favor of $15,000, besides what has
accumulated since the estate was fixed up, which I will loan out [at]
about nine per cent, being the best I can do at present."
Where It Appeared that a Special Administrator had been a Trus-
tee for the decedent in her lifetime, and there was a large balance
at the time of decedent's death, for which he should be held ac-
countable, and he has made no statement of his indebtedness or
trust in his account rendered as special administrator, he should be
charged with the amount of such indebtedness upon the settlement
of his account.
In this case the record shows that Robert Stevenson filed
an application for letters of special administration upon the
twenty-first day of November, 1882, the petition alleging:
That decedent, Margaret Armstrong, died at Foxlake, Dodge
county, Wisconsin, on October 3, 1882, being then and there
resident, and leaving estate in the city and county of San
Francisco, within the jurisdiction of the court, consisting
Estate of Armstrong. 159
of an undivided one-eighth (%) interest in the lot of land
(and the improvements thereon) situated on the southwest
corner of California and Montgomery streets, in the afore-
said city and county, and known as ' ' Stevenson Block ' ' ; that
the rents and profits of decedent's interest in said realtj^
amounted to $150 a month ; that petitioner was a brother
of the decedent, and also agent for all the owners of said
"Stevenson Block"; and that decedent left no will. Upon
the filing of said petition and showing made, and in accord-
ance with the prayer of the petition, the said Robert Steven-
son was appointed special administrator, and upon the same
day, to-wit : November 21, 1882, letters of special adminis-
tration were issued to him by the clerk.
Thereafter, Maurice B. Blake filed a petition in the matter
of the estate, to have a will of decedent admitted to probate,
upon a copy of said will and of the probate thereof by a Wis-
consin court (all duly authenticated) ; and after due pro-
ceedings the same was so admitted to probate upon June 5,
1883, and said M. B. Blake was appointed administrator with
the will annexed of the estate of said decedent, and there-
upon qualified on June 9, 1883. On July 17, 1883, the said
administrator, Blake, filed a petition praying that a citation
issue against the aforesaid Robert Stevenson, directing him
to render an account of his special administration of said es-
tate. Upon this petition citation was issued against Steven-
son, returnable on July 26, 1887 ; citation was served, and
on the return day the prayer for an account was granted.
On August 3, 1883, an "Account of Robert Stevenson,
Special Administrator," was filed, showing that he received
the sum of $385 rents from James W. Hart, collector for the
"Stevenson Block," and that he paid out $133.45, leaving a
balance amounting to $251.55 ; and with this account was
filed a detailed account by the aforesaid James W. Hart,
the agent and collector of all the rents for the owners of the
said "Stevenson Block." On August 7, 1883, there were
filed by the administrator, Blake, "Exceptions to Account of
Special Administrator," contesting the said account filed Au-
gust 3, 1883, on the grounds, first, that Stevenson has not
charged himself with all the property of the estate coming
160 Coffey's Probate Decisions, Vol. 1.
to his hands, for that on or about August 15, 1877, in de-
cedent's lifetime, he collected, as her agent, a large sum of
money and also other personal property, and an interest (un-
divided) in a parcel of real property, distributed to her as
heir of one Andrew J. Stevenson, deceased; that large sums
were afterward received as her agent in her lifetime, for
rents of realty and interest and dividends on moneys and
stocks; that said Stevenson never fully accounted to her for
any of such property so received by him as aforesaid; that
the amount of Stevenson's indebtedness cannot be stated, but
is believed to exceed $20,000, and he has not accounted for
any of it ; second, the item for attorney fees of special admin-
istration is excessive ; and prayed that the account presented
be not allowed, but that said Stevenson be compelled to charge
himself with the amount of his indebtedness and with all
property that should be in his hands, or the proceeds of the
same.
The facts proved before the court, and which led to the
opinion in the case, can be best given as they were presented
in the ' ' Findings and Decision on Account of Special Admin-
istrator, " drawn in conformity with the opinion and filed
January 17, 1884, viz.: 1. That about August 15, 1877, said
Robert Stevenson, as agent of said Margaret Armstrong, the
decedent, took possession of the sum of $24,618.80 one-eighth
interest in the lands and premises known as '* Stevenson
Block," and certain mining stocks, jewelry and furniture,
distributed to her as one of the heirs of the late Andrew J.
Stevenson, deceased. 2. That none of the said property so
received by him is accounted for in his account as special
administrator; but that the jewelry had been given to said
Stevenson by the decedent ; that the mining stocks had been,
after rendition of the account, delivered to the administrator,
Blake, and since the latter 's qualification he has been in pos-
session of the interest in the realty and of the household
furniture. 3. That on August 15, 1877, there remained in
Stevenson's hands, out of said amount of $24,618.80, the sum
of $15,000 ($9,618.80 having been previously disbursed to
his principal) ; and that said money was held and retained
by him in a fiduciary capacity, upon the understanding that
Estate of Armstrong. 161
he should loan out the same upon interest for the benefit
of his principal, the aforesaid decedent, and account to her
therefor. 4. That, without notice to his principal, and in
violation of his duties as agent, he mingled the said sum of
$15,000 with his own funds, and never kept them separate
therefrom; that he did not loan out the money for her to
others, but used it in all respects as his own, employing it in
hazardous mining and stock speculations in his own behalf,
by which means it was ultimately lost. 5. That he never
paid to his principal any part of said $15,000, or the inter-
est thereon, except the interest to October 1, 1878. 6. That
no demand for an accounting of said moneys was ever made
upon him by his principal, or refused by him; that he never
informed her of the mingling and using of said moneys with
his own, and such intermingling and use were never ratified
by her, the said principal. 7. That from the fifteenth day of
August, 1877, aforesaid, up to the date of his principal's
death, viz. : October 4, 1882, he held and managed the prop-
erty collected and received as aforesaid, as her agent, to-
gether with the rents, income and dividends thereof ; and
that he has not entered any of the said rents or dividends,
or the disbursements connected therewith, in his account
aforesaid, but has specified them in an exhibit filed in the
estate September 21, 1883. 8. That for a considerable period
the rents and dividends received by him were not paid over
to his principal, but allowed to accumulate, and on January
1, 1881, there had so accumulated and remained unpaid net
rents and dividends amounting in all to the sum of $11,727.67,
with interest; that thereafter he paid over the current rents
and dividends up to May 1, 1882, but subsequently there ac-
cumulated and remained unpaid in his hands, from net rents
and dividends, the sum of $1,004.75. 9. That the same facts
existed as to the rents and dividends, so received by him as
aforesaid, as existed with reference to the principal and orig-
inal moneys and property which came into his possession, as
found in and by the third and fourth findings above. 10.
That his principal died, and he, after petitioning therefor,
was appointed the special administrator of her estate and
duly qualified, and at and after such qualification he was
Prob. Dec, Vol. I — H
162 Coffey's Probate Decisions, Vol. 1.
possessed of sufficient property to have realized and taken
into his possession, as such special administrator, at least the
sum of $1,004.75, aforesaid. 11. That after his qualification
as special administrator he received and disbursed the moneys
set forth in his account filed herein, and afterward paid
over the balance therein stated to the administrator of the
estate, M. B. Blake.
And, as conclusions of law, the court found : 1. That the
indebtedness of said Stevenson to said decedent was not, nor
any part of it, barred by section 339, Code of Civil Pro-
cedure, or the statute of limitations ; 2. That the account
should not be settled as rendered, but the said Robert Steven-
son, as such special administrator, should be charged with
the various sums of money and accumulations received by
him, as set out in the findings of fact, with interest; and
that a decree should be entered against him settling his ac-
count at a total balance of $37,218.74, due the estate of Mar-
garet Armstrong, deceased, from him as special adminis-
trator thereof.
Alfred Wheeler, attorney for special administrator (Stev-
enson) ; afterward E. D. Saw.yer, on the "Exceptions" to
the account.
J. M. Allen, attorney for Frederick James Armstrong, an
heir at law.
j\I. C. Blake, attorney for Maurice B. Blake, the adminis-
trator with the will annexed, for the "Exceptions."
COFFEY, J. In the matter of the application for the
settlement of the account of Robert Stevenson, as special ad-
ministrator of the estate of Margaret Armstrong, deceased,
the special administrator had no right to use the funds of
the decedent as his own, nor to mingle them with his own
funds, without clear authorization from her. It was his duty
to keep them separate and intact and free from any liabil-
ity such as he incurred in the use of his own moneys. He
should have pursued with exactitude the instructions given
as to them, or show that his act was ratified, with full knowl-
edge on the part of the decedent of the nature of that act.
Estate of Armstrong. 163
The evidence shows that the authority was to "loan out"
the money, which seems to me to mean that he was to in-
vest for her and to account therefor, and not to borrow it
for his own purposes. ]\Irs. Armstrong reposed confidence
in him to judiciously invest her funds, and this confidence
was abused when he placed himself in the position of a debtor
to her, without fully advising her of the risk she ran, and
affording her an opportunity of knowing that he was sub-
jecting her funds to hazard, and depriving her of the means
of averting catastrophe to her fortune. He should show
that he did so, in order to avoid responsibility for the loss
his conduct caused to her. Occupying a fiduciary relation,
the statute of limitations cannot avail as a defense; at least,
not unless or until a demand and refusal are shown.
Lapse of time is no bar to a trust clearly established. Pre-
vost V. Gratz, 6 Wheat. 481, 5 L. Ed. 311. Is this trust
clearly established? I think so. See extract from letter,
page 48, transcript:
"It leaves a balance in your favor of $15,000, besides what
has accumulated since the estate was fixed up, which I will
loan out at about 9 per cent, being the best I can do at
present. ' '
Clearly, the ordinary meaning of language will not bear
the strain that "loan out" means he will borrow for him-
self, appropriate to his own use, treat as a personal account.
It must be interpreted that he will invest it for her account.
He was to "loan out," not to borrow. He had no other in-
structions. He did not ad\'ise her of the risk to which he
was subjecting her funds, nor of his mingling the funds with
his own indiscriminately: See vol. 2, Trans., p. 70. Mrs. Mc-
Lean testifies that her sister, Margaret, wanted her brother,
Robert, to "lay out" the money. She reposed in him great
trust and confidence, which he was bound to use with the
utmost discretion, lie did not advise her of the hazardous
nature of his use of the money, nor of his own failing con-
dition (vol. 2, Trans., pp. 62. 69-70, 77, 78. 80. 85, 86). The
evidence is by no means clear, is very vague and unsatis-
factory, as to the extent of ]Mr. Hunter's or of IMrs. Arm-
strong's knowledge of the facts in time to retrieve conse-
164 Coffey's Probate Decisions, Vol. 1.
quences of Robert's conduct (vol. 2, Trans., 89, STVo, 103,
104). Altogether, he failed in his duty to protect her in-
terest.
Robert Stevenson was the trustee of Margaret Armstrong;
his trusteeship has never been revoked ; and the statute of
limitations cannot operate in his favor. He is clearly liable
for loss. His account should not be allowed as rendered, ex-
cept the item for attorney's fee, a charge properly and nec-
essarily incurred. Let findings be prepared in conformity
with the text of this opinion.
The Decision in the Principal Case was affirmed by the supreme
court of California in 69 Cal. 239, 10 Pac. 335, where it is held that
a special administrator, who is individually indebted to the decedent,
must charge himself in his account with the amount of such indebted-
ness.
Estate of ELIZABETH D. TRAYLOR, Deceased.
[No. 4,705; decided January 11, 1887.]
Claim for Counsel Fees — Jury Trial. — A claim of an attorney for
fees for services rendered an estate is an expense of administration, and
is not a proper matter for trial by jury. But the claim of an attor-
ney for fees for services rendered to a decedent during his lifetime
differs materially from a claim for services rendered to the estate.
Claim. — The Allowance of a Claim Against Decedent prima facie
establishes its correctness and validity, and shifts the onus of proving
its incorrectness or invalidity upon the party contesting the same.
Claim — Jury Trial. — The Allowance of a Claim does not interfere
with the question of the right to a trial by jury.
Account — Jury Trial. — An Account, as Such, is a Matter to be
Settled by the Court without a jury.
A Claim Arising During the Lifetime of the Decedent is a matter
which may be segregated from the account of the executors.
Claim. — The Parties are Entitled to a Jury on the Trial of a contest
which arose during the lifetime of the deceased, and at the trial the
claim alone should be submitted, and not as part of an account in
which it is set forth.
Elizabeth D. Traylor died in San Francisco, a resident
thereof and leaving estate therein, on the twenty-first day of
October, 1885.
Estate of Traylor. 165
She left a last will and testament bearing date July 20,
1885, and a codicil thereto dated September 30, 1885.
George W. Prescott, P. N. Lilienthal and Robert Harrison
were named therein as executors.
Upon petition filed on October 28, 1885, the will and
codicil were admitted to probate, and the persons named
appointed executors thereof, and letters testamentary issued
to them on November 10, 1885.
On November 20, 1885, George W. Prescott resigned his
trust as executor, and the two remaining executors con-
tinued to act as such.
Robert Harrison, one of the executors, presented to Hon.
J. V. Coffey, judge of the probate department of the su-
perior court, in the first instance pursuant to section 1510,
Code of Civil Procedure, for allowance, a claim against the
estate for the sum of $8,250, for professional services ren-
dered decedent in her lifetime, which claim was allowed by
the judge on March 5, 1886, for $7,250. The claim was
also presented to the other executor and the Judge, under
section 1496, Code of Civil Procedure, and by them allowed
and approved for said sum on said day.
On May 14, 1886, the executors filed an exhibit, pursuant
to section 1622, Code of Civil Procedure. The exhibit con-
tained a statement of the expenses of administration, in
which was an item "Retaining fee of Swift and Harrison,
as counsel for estate and executors, $1,000." It further
contained a statement of claims presented against the estate
and allowed, among which was the "claim of Robert Har-
rison, for professional services as attorney and counselor,
rendered Elizabeth D. Traylor, in her lifetime, allowed for
$7,250."
On May 18, 1886, Elizabeth H. Siddall, claiming to be
sole heir of decedent, filed a contest, on various grounds, to
various items in the exhibit, among them the two above
mentioned, and, as to those two, separately demanded a jury
trial to determine the merits of the claims: and, as to the
latter, also asked that proper pleadings be framed for that
purpose by the respective parties.
On September 29, 1886, the executors filed tlicir fii-st
annual account, which contained the above-mentioned items.
166 Coffey's Probate Decisions, Vol. 1.
By subsequent amendment, however, the names of Swift
and Harrison were stricken out from the first item, and
that of John F. Swift inserted in place thereof.
On October 8, 1886, said Elizabeth H. Siddal filed her
contest to the same items in said account, and also made
a similar demand for jury trials.
The motions for jury trials were argued and submitted
to the court on November 10, 1886, and on January 11,
1887, the motion as to the claim of John F. Swift was de-
nied, and the one as to the claim of Robert Harrison granted.
Subsequently, the latter claim was transferred to depart-
ment No. 1 for trial.
D. W. Douthitt, for motions; also, with him, J. C. Bates.
W. W. Cope, opposed, for executors.
Robert Harrison, also opposed, for executors.
Selden S. Wright, also opposed, for certain heirs.
COFFEY, J. With reference to the motion to refer
claims to jury: I have come to the conclusion in regard to
the claims of John F. Swift, for counsel fees, for services
rendered to the estate, being a claim for legal services in-
curred during the administration, which is an expense of ad-
ministration, it is not a proper matter for trial by jury.
Motion denied. As to the claim of Robert Harrison, for legal
services rendered in the lifetime of deceased : This differs
materially from Mr. Swift's claim. It is a matter which may
be segregated from the account, so if it be submitted to a jury
it should be submitted alone and not as part of the account.
The account is a matter to be settled by the court without a
jury, that is, the account as an account. This claim of Mr.
Harrison, although it is allowed by the court and prima facie
established by reason of the approval of the court, that is only
a shifting of the onus, that does not interfere with the ques-
tion of the right to a trial by jury.
The decision of the court is, that the motion for a jury
trial as to that claim be and it is granted. Exception.
Estate of Rothschild. 167
Estate of GEORGIANA ROTHSCHILD, Deceased.
[No. 3,944; decided May 25, 1885.]
Letters of Administration — Revocation in Favor of Person having
Prior Right. — Where letters of administration have been granted to
a person who is not entitled to them in his own right, and who was
not nominated by the person entitled, they will be revoked upon
the application of the person entitled to letters.
Georgiaua Rothschild died in La Porte county, Indiana,
a resident thereof, and leaving personal estate in San Fran-
cisco, on April 1, 1883.
On February 3, 1885, Asher Frank filed a petition for
letters of administration upon the estate of the decedent in
San Francisco, in which he alleged the foregoing facts, and
also that John and Rosalie Summerfield were the grand-
parents of the decedent, and her heirs and next of kin, and
resided in Indiana, and that petitioner was the great-uncle
of the decedent, and that the heirs had authorized him to
make this application.
No written request of the heirs for the appointment of
petitioner was filed, but he held a power of attorney from
the grandparents dated January 23, 1885, authorizing him
to act in any manner that he saw fit, to collect their inherit-
ance from the decedent for them. This power of attorney'
was filed April 10, 1885.
The estate in San Francisco consisted of $2,000, in the
hands of Joseph Rothschild. On February 17, 1885, the
application of Asher Frank was granted, and he was ap-
pointed administrator, and on the following day letters of
administration were issued to him.
On ]\Iarch 30, 1885, Henry Rothschild filed a petition for
the revocation of such letters. He alleged that decedent
was the infant daughter of George and Bertha Rothschild,
both deceased ; that petitioner and Mrs. Nathan Meyer, resi-
dents of San Francisco, were heirs of decedent; that peti-
tioner was decedent's uncle and a brother of her father, and
]Mrs. Nathan Meyer was an aunt of decedent, and a sister
of her father and of petitioner; that Asher Frank was a
resident of Oakland; that decedent was a minor under the
168 Coffey's Probate Decisions, Vol. 1.
age of eighteen years, and unmarried at the time of her
death, and that the money left by her was inherited from
her father, who had previously died in San Francisco; that
no notice of the application of Asher Frank had been given
to petitioner, or to Mrs. Nathan Meyer, and the first knowl-
edge he had of it was when he was informed by Joseph
Rothschild that Asher Frank had been appointed adminis-
trator.
An order to show cause was issued on this petition, re-
turnable on April 10, 1885.
On that day the administrator filed his answer, in which
he denied that petitioner, Henry Rothschild, and Mrs.
Nathan Frank were heirs of decedent, or entitled to a
distributive share of her estate, and alleged that the de-
cedent was an actual resident of the state of Indiana at
the time of her death ; that her death was known to peti-
tioner immediately after it occurred, and petitioner took
no steps for the issuance of letters; further, that John and
Rosalie Summerfield were the grandparents of decedent, and
next of kin under the laws of Indiana.
It was contended, on behalf of the administrator, that
letters were properly granted to him, under section 1377,
Code of Civil Procedure, which provides that "letters of
administration must be granted to any applicant, though it
appears that there are other persons having better rights
to the administration, when such persons fail to appear
and claim the issuance of letters to themselves"; and that
the letters should not be revoked. Counsel cited sections
1383 and 1386, Code of Civil Procedure, the first of which
provides in substance that when letters have been granted
to any other person than the surviving husband or wife,
child, father, mother, brother or sister of the intestate, any
one of them who is competent may obtain the revocation of
the letters and be entitled to the administration; and the
latter of which provides that "the surviving husband or
wife, when letters have been granted to a child, father,
brother or sister of the intestate, or any of such relatives,
when letters have been granted to any other of them, may
assert his prior right and obtain letters of administration,
and have the letters before granted revoked," and claimed
Guardianship of Smith. 169
that when letters are once granted only the persons above
named could apply for their revocation.
On behalf of the petition for revocation, section 1365,
Code of Civil Procedure, was cited, to the effect that let-
ters could only be granted to some one or more of the per-
sons mentioned in that section, and that relatives of the de-
ceased are "entitled to administer only when they are en-
titled to succeed to his personal estate, or some portion there-
of"; and that the administrator did not come within subdivi-
sion 7 of that section, giving the right to administer to "the
next of kin entitled to share in the distribution of the es-
tate," petitioner and his sister being the only heirs of de-
cedent. Counsel further contended that under section 1379,
Code of Civil Procedure, the administrator, not being entitled
to letters in his own right, could only have been appointed
"at the written request of the person entitled, filed in the
court," and that no such written request had been filed.
Joseph Rothschild, for petitioner.
William H. Sharp, opposed, for administrator.
COFFEY, J. Upon the facts presented to the court, the
petition for revocation should be granted, and it is so or-
dered.
On the Revocation of Letters of Administration on the application
of the person primarily entitled to letters, see 1 Eoss on Probate
Law and Practice, 379-386.
Estate and Guardianship of GERTRUDE A. SMITH,
Minor.
[No. 3,697; decided February 24, 1885.]
Guardianship — ^Welfare of Child. — The First Point to be Considered,
in adjudging the custody or guardianship of a minor, is the best
interests of the child with respect to its temporal, mental and moral
welfare.
Guardianship — Preference of Minor. — In determining what is for
the best interests of a child, in adjudging its custod}' or guardian-
ship, the court may consider the child 's preference, if it is of
suflSieient age to form an intelligent preference.
170 Coffey's Probate Decisions, Vol. 1.
Guardianship — Welfare of Child. — In guardianship matters the court
acts for and on behalf of the child, and must regard, as the paramount
consideration, the interest and welfare of the child. To this every
other consideration must yield.
Guardianship. — The Father Is Prima Facie Entitled to the Custody
of His Child. But this is not an absolute right; it may be controlled
by other considerations; and, if the father is unable or unfit to take
charge of the child and educate it suitably, the court will not inter-
fere to take the child from those who are fit and able to so main-
tain and educate it.
Guardianship — Father's Right to Child's Custody. — As a general
rule, courts assent to the proposition that natural right and public pol-
icy, as well as the safety of the social structure, require that the
father should have the custody of his child. But this is not impera-
tive upon the court; it bends to the interests of the child.
Guardianship — Considerations in Awarding Custody of Child. — It
is within the court's sound discretion whether the custody of a child
will be given to the father. The court should consider not only the
father's fitness, but the condition of the child with its present custo-
dians, its relation to them, the present and prospective provision for
its support and welfare; the facts as to its present home — its dura-
tion, and whether with the father's consent, and upon understanding of
permanency; the strength of the ties formed, and the child's wishes
if it is of an age of discretion.
Guardianship. — Where the Best Interests of a Child require that
it should remain in the home where it has been fostered from in-
fancy, that consideration will be deemed paramount to the father 's
natural right, although the father is in every way competent and
suitable.
Guardianship. — The Custody of Minors is Always Within the
Discretion of the court; and this discretion is to be exercised in
the light of the particular and peculiar circumstances of each case.
The court is not bound to deliver the custody to any particular per-
son, not even the father.
Guardianship — Election and Nomination by Child. — It has become
the rule, in awarding the custody of a minor, to give the child, if
of proper age, the right of election in the matter. In California,
fourteen years is the age fixed, when the minor has a right of nomi-
nation, subject to the court's approval; and the law also permits
a minor, "if of sufficient age to form an intelligent preference," to
express such preference, which may be considered by the court.
Guardianship — Child's Choice of Custodian. — Mere mental pre-
cocity is not the test of a child 's capacity to express a choice of
custodian; acuteness of apprehension, sharpness of intellect on the
part of the child, will not alone be sufficient for the judge. The
minor must be capable of exercising a discretion in the premises;
Guardianship of Smith. 171
its mere impulses will not weigh. In this case, a child thirteen years
and eight months old was held "of a sufficient age to form an intel-
ligent preference," within the meaning and intent of section 246,
Civil Code, relating to the custody and guardianship of minors.
Guardianship. — The Welfare of a Minor Means Its Permanent,
not temporary, welfare. The court is governed by that which, look-
ing to the previous condition, and the future continued residence
of the child, will contribute to its permanent happiness and welfare.
Guardianship — Examination of Minor. — In this case, in accordance
with the practice of the court in matters of guardianship, the minor
was examined, separate and apart, at length, first by the respective
counsel and the judge, with the official reporter; then by the judge
alone, counsel being absent; and finally was requested to express
her own wishes in writing, she being alone and without any influ-
ence whatever. Her written views, with her transcribed testimony,
were then filed as part of the record.
Guardianship. — One of the Objects of the Court's Private Exam-
ination of the Minor, in guardianship matters, is to discover the
child's capacity; its appreciation of the object of the proceedings;
the strength of the natural affections, and its idea of filial duty and
parental right; and the child's freedom of expression, that is, ab-
sence of influence or teachings adverse to parents. The court looks
with distrust upon any choice of the minor contrary to the natural
affections in favor of a parent.
Guardianship Awarded to Aunt Rather than to Father. — In this
case an application for guardianship of a minor was filed by its
aunt, and a counter-application and opposition presented by its
father, the mother being deceased. The minor was aged thirteen
years and eight months, and held to have proven herself fully ca-
pable of expressing an ' ' intelligent preference ' ' in the matter, which
she did in favor of her aunt, after undergoing a thorough exam-
ination. The child was born in the dwelling of her aunt while her
parents were members of the aunt's domestic circle; and the mother
and child ever afterward continued to live with the aunt until the
mother's decease, when these proceedings were instituted. The
child 's mother had, some years before her death, obtained a divorce
from the father, by default, and with it the custody of the child;
and it was her last wish that her child should remain with the aunt.
Guardianship Awarded to Aunt — Right of Father to Visit Ward. — •
In this case the court found that the best interests of the child re-
quired that it should remain with the aunt, with the right of tlie
father to visit and enjoy the society of the child at all reasonable
times; and, in awarding the minor's custody to the aunt, the court
said that the parties ought to reach an amicable understanding
whereby the child should spend part of her time with her father.
172 Coffey's Probate Decisions, Vol. 1.
and so allow opportunities for mutual affections and interests to grow
up between her and her paternal relatives.
In the above matter, Caroline A. Taber filed a petition on
October 16, 1884, praying to be appointed guardian of the
person and estate of the minor, Gertrude A. Smith ; setting
forth, among other things, that the minor had no guardian
appointed by will; that its mother was deceased; that the
mother in her lifetime had been divorced from the father
of the child, and had been awarded the custody of the minor ;
and that the only relatives of the minor were the petitioner,
who was the aunt of the minor, petitioner's husband, and
the children of petitioner. Upon the twenty-second day of
October, 1884, Henry L. Smith filed a petition for the
guardianship of the person and estate of the minor, alleging
that he was the child's father and entitled to be appointed
the guardian, and giving the names of the child's relatives
as they were set out in the aunt's petition aforesaid.
On November 19, 1884, Smith filed objections to the grant-
ing of Mrs. Taber 's petition, alleging; first, that he was the
father of the minor, and entitled to guardianship in prefer-
ence to Mrs. Taber, the child's mother being deceased; sec-
ond, that Mrs. Taber was unsuitable to be guardian; third,
that it was for the best interests of the minor, and most con-
ducive to its temporal, mental and moral welfare, that he
(Smith) should be appointed guardian; and fourth, that it
was not the minor's best interests, etc., that Mrs. Taber be
made guardian. Upon September 8, 1885, the court, in con-
formity with the opinion below, made an order and decree
appointing Mrs. Taber guardian ; and in the decree further
ordered that : ' ' Henry L. Smith, father of minor, be and he
is hereby allowed to visit and enjoy the society of the said
minor, at all reasonable hours, and to take her to fit and
proper places with him at reasonable times."
Letters of guardianship were issued to Mrs. Taber Octo-
ber 10, 1885.
A. N. Drown, attorney for father, H. L. Smith.
J. E. McElrath, attorney for aunt, Mrs. C. A. Taber.
COFFEY, J. Gertrude A. Smith, the minor here, was
born March 19, 1871, in this city, in the dwelling-house of
Guardianship of Smith, 173
Jacob S. Taber, the father and mother of the minor being
inmates of the domestic circle, the mother a sister of Mrs.
Caroline A. Taber, one of the petitioners here, and the wife
of Jacob S. Taber. At the time of the birth of Gertrude
the family consisted of Mr. and Mrs. Taber, Mr. and Mrs.
Smith, and the only child of the Tabers ; subsequently, an-
f'ther child was born, and while the two families remained
together there were three children and the grown persons,
all living in comfort and in harmony. Subsequently, in
about two years thereafter, the family moved to Oakland,
and there resided for several years, until at the desire of
i^he ladies, Mr. Taber decided to break up housekeeping, and
removed to the Palace Hotel in San Francisco. Mr. Smith
strenuously objected to this course, as he was averse to
hotel life, but his wife persisting in her purpose, he per-
mitted her to take up her abode with her child in the family
of Mr. Taber, at the hotel, he remaining, as he has since re-
mained, in Oakland, and living with his mother, an aged
and estimable lady. Mr. Smith frequently visited his wife
and child in San Francisco, and treated them with respect
and consideration ; but after a while his wife instituted a
suit for divorce on the ground of failure to provide, which
he did not resist, and the divorce was granted, and the cus-
tody of the child awarded to the mother. There is reason,
from the evidence, to believe that the result of this suit was
reached by mutual understanding; but however this may
have been, the record must speak for itself. The parties to
the suit continued friendly, and, indeed, throughout, Mr.
Smith's conduct was amiable and conciliatory. The main
burden of the support of wife and child was borne by Mr.
Taber, although many items for tuition, clothing, etc., were
paid by Mr. Smith. In August, 1884, while Mrs. Smith,
Mrs. Taber and the children were in the country, the mother
of the minor died at a place called Wawona, a station
coming out of the Yosemite Valley. After this event ]\Ir.
Smith desired to obtain the custody of his child, and nego-
tiations between himself and the aunt-applicant were carried
on for a long time ; but failing of amicable arrangement cul-
minated in these proceedings. All the parties seem to be of
good social standing, and. as the matter is before the court.
174 Coffey's Probate Decisions, Vol. 1.
they are all entitled to respect. Mr. Smith occupies a sta-
tion of trust, secretary of the board of trade, with good
salary and fair prospects. Mr. Taber, the husband of the
other applicant, is president of the same board, and is in
constant business relations with the father of the minor and
on friendly terms with him. It should seem that, under
such circumstances, this controversy should have been set-
tled out of court, and without recourse to the harsh and
costly procedure of the law ; but it is reserved now for the
court to pass upon the facts and apply the law. In doing
so, I may say in the language of Brevver, J., in Chapsky v.
Wood (26 Kan. 651, 40 Am. Rep. 321, and note), a petition
of a father for the possession of his minor child, that :
"Counsel have in their arguments expressed very feelingly
and truthfully the embarrassments and difficulties which
surround the decision of a case like this. ' '
And further to quote from the same learned judge , I may
apply his description of the minor in that case to the one
at bar : ' ' The burden of the case is that the decision is one
which involves the future welfare of a little girl; and I
think no man can look upon the face of a bright and happy
little girl, like the one before us, and come to the decision of
a question which may make or mar her future life, without
hesitation and feeling; certainly we are not so insensible as
to be able to do it" (page 652).
Gertrude Smith is certainly entitled to the description
here quoted. She is more than ordinarily intelligent and
advanced in study; she has a happy temperament, a cheer-
ful temper, a firm yet entirely reasonable disposition, and a
full appreciation of the position which she is placed in by
these proceedings. She was examined for hours, first by the
respective counsel themselves, and the judge with the official
reporter being alone; then by the judge without the inter-
vention of counsel, they being absent; finally she was asked
to remain entirely by herself, and without any influence
whatever, to write her own views and indicate her own choice
of custodian, which she did in plain and concise terms, as
hereinafter transcribed. The first point to be considered
by the court is, according to section 246 of the Civil Code
of California, "tlie best interest of the child in respect to
Guardianship of Smith. 175
its temporal, and its mental and moral welfare"; and "if
the child be of a sufficient age to form an intelligent prefer-
ence, the court may consider that preference in determining
the question."
This court acts for and on behalf of the child, and must
regard as the paramount consideration the interests and wel-
fare of the child. To this every other consideration must
yield. There is no doubt, as was said by the eminent Chief
Justice Shaw, of Massachusetts, in Pool v. Gott et ux. (Au-
gust 20, 1851, at Chambers; 14 Monthly Law Reporter (Vol.
4, New Series), p. 269; not elsewhere reported), that the
father is prima facie entitled to the custody of the child.
This is the law of California (Code Civ. Proc, sec. 1751;
Civ. Code, sec. 197) ; but this is not an absolute right; it
may be controlled by other considerations; if unable or un-
fit to take charge of the child and educate it in a suitable
manner, the court will not interfere to take the child from
the care of persons who are fit and able to maintain and
educate it properly ; but it may be said in this case, as Chief
Justice Shaw said in the one before him, this is an excep-
tion which need not here be considered, for 'the evidence
shows in this case that the father of Gertrude is in a good
situation, pecuniary, domestic and social, and of a character
and reputation against which no objection can be made.
On the other hand, the aunt-applicant and her husband
are persons of respectability, in sufficient pecuniary circum-
stances, and have so far mainly educated and guarantee
hereafter to educate the child in a proper manner. In their
family the child has been reared from her birth, and, as she
says, she "has known no other home." To them the child
is devotedly attached, as appears by her private examina-
tion, conducted with great care and thoroughness, and with
an earnest endeavor on the part of the examiners to elicit
the exact truth; and I am satisfied, as Judge Shaw said in
that case, "that a termination of this relation would be, for
a long time at least, the cause of great suffering to her and
them" (14 Law Rep. 269, 270, 271). But the counsel for
the father-applicant contends for the natural right to the
custody of the child, as expressed in the Code of Civil Pro-
cedure (section 1751) and the Civil Code (section 197) ; and
176 Coffey's Probate Decisions, Vol. 1.
the learned counsel argues strenuously that his client has
done nothing to impair that right, and that the court is bound
now to respect the assertion of the father's right and to re-
spond to his demand by delivering to him the minor. Both
natural right and public policy, says counsel, as well as the
safety of the social structure, require that the father should
have the custody of the child (Schouler, Dom. Rel., cited).
As a general rule courts assent to such demands, but they
are not imperative upon the court. As was said by Judge
Finn, in the matter of the Piercy minor, the custody is al-
ways within the discretion of the court — a discretion to be
exercised in the light of the particular and peculiar circum-
stances of each case. The court is not bound to deliver the
infant over to any particular person, for it is not a matter
of right which even the father himself can claim at the hands
of the court as against the interest of the child. In the case
of Irma Linden, Judge Myrick [the predecessor of Judges
Finn and Coffey in the probate forum, San Francisco] de-
cided that where the father had intrusted his infant daugh-
ter to the custody of an aunt, at the request of his dying
wife, that when the child had been a member of the aunt's
family for six years, the custody would not be changed even
in favor of the father, who appeared to the court to be en-
tirely competent to support and educate his child. Judge
Myrick 's decision was placed on the ground that the best
interests of the child required that she should remain in the
home where she had remained from infancy, and that con-
sideration was deemed by the court paramount to. the father's
natural right.
This decision is in accord with the best American author-
ities, and Judge Finn [the predecessor, in the probate de-
partment of Judge Coffey] thought it correctly stated the
law. The cardinal principle relative to these matters is to
regard the benefit of the infant; to make the welfare of the
child paramount to the claims of either parent (Schouler,
Dom. Rel., 248), and the primary object of the American
decisions is to secure the welfare of the child and not the
special claims of the parent (Schouler, Dom. Rel., sec. 248).
It is sometimes a cjuestion (says Schouler, Dom. Rel., sec.
Guardianship of Smith. 177
250), in proceedings relative to the custody of minors, how
far the child's own wishes should be consulted. AVhere the
object is simply that of custody, the rule, though not arbi-
trary, rests manifestly upon a principle elsewhere often ap-
plied, namely : That after a child has attained to years of
discretion she may have, in case of controversy, a voice in
the selection of her own custodian ; the practice is to give the
child the right to elect where she will go, if she be of proper
age. What is proper age! Fourteen years is the age in-
dicated by the code (Code Civ. Proc, sec. 1748) at which
the minor has the right of nomination, subject to the court's
approval. The Civil Code (section 246) allows the minor,
"if of sufficient age to form an intelligent preference," to
express such preference, which expression may be consid-
ered by the court in determining the question of custody.
Let us inquire, now, what is meant by "intelligent prefer-
ence." Mere mental precocity, as was observed by Lord
Chief Justice Cockburn in Ex parte Barford (8 Cox C. C.
405, 408, 9 Week. Rep. 99, 3 L. T., N. S., 467), is not the
test of the capacity of the child to express effectually a choice
of custodian. If the child have arrived at an age to exer-
cise a discretion in the premises, her wish may be consulted;
but acuteness of apprehension, sharpness of intellect alone,
is not sufficient to justify the judge in confirming her choice
The action of the court will not be controlled by the mere
impulses of a child of tender years. The welfare of the child
means the permanent and not the temporary welfare. It
is not what will please or gratify the child for a day or an
hour which is to govern the court, but that which, looking
to its previous condition and to its future continued resi-
dence, will contribute to its permanent happiness and wel-
fare. Thorndike v. Rice, Supreme Court Massachusetts, 14
Law Rep., N. S., 19 ; opinion by Mr. Justice Bigelow. One
of the objects of the private examination is to discover how
far the child is capable; her appreciation of the situation
in which she is placed; the strength of her natural affec-
tions; her idea of filial duty and of parental right; her free-
dom of expression, i. e., freedom from influence adverse to
her father which might have taught her to determine in
Prob. Dec, Vol. 1—12
178 Coffey's Probate Decisions, Vol. 1.
favor of another. The court is concerned to ascertain her
real desire; her free, voluntary choice of custodian; and so
natural is the tendency of a child, normally constituted, to
seek the protection of the author of its being, that the court
looks with distrust upon any choice to the contrary.
Frequently courts have conformed to the wishes of minors
under the age of fourteen, as in the case of Rex v. Smith,
2 Strange, 982, cited in the Matter of the McDowles, 8 Johns.
328, 331, where a boy under fourteen was brought up on
habeas corpus, sued out by his father against his aunt, but
the court merely left the boy at liberty to go where he pleased,
and the boy chose to stay with his aunt.
In the Matter of the McDowles the infants were respec-
tively eleven and eight years of age, and yet the court de-
clared they were at liberty to go where they please.d, and the
chief justice, asking the infants where they chose to go, they
answered that they wished to return to their masters; after-
ward, upon the suggestion of the counsel for the father, that
improper means and constraint had been used to influence
their election, and that the answers were not freely given by
them to the court, three counselors were appointed to exam-
ine the boys and discover their real desire; thereafter the
examiners reported to the court that the boys, after being
carefully informed of the purpose of the inquiry, expressed
a decided and unequivocal desire to return to their masters,
and a strong and unaccountable repugnance to go back to
their father, and the court so ordered (8 Johns. 332).
In the State v. Libbey, 44 N. H. 321, 82 Am. Dec. 223, it
w^as held to be within the sound discretion of the court,
w^hether the custody of the child will be given to the father,
and in determining the question the court should consider
not only the fitness of the father for the trust, but the con-
dition of the child with the person from whose custody it
is sought to be taken, its relation to them, the present and
prospective provision for its support and welfare ; the length
of its residence there, and whether with the consent of its
father, and the understanding, tacit or otherwise, that it
should be permanent; the strength of the ties that have been
formed between them, and, if the child has come to years
Guardianship of Smith, 179
of discretion, her wishes in the matter. This is a clear enun-
ciation of the law, and commends itself to one's sense of jus-
tice (In re Scarritt, 76 Mo. 593, 43 Am. Rep. 768), and it
has been recognized as correct doctrine in every well-con-
sidered American case.
Gertrude Smith is of sufficient age to form an intelligent
preference; she is within a short interval of the time when
she will have the right of nomination; her preference has
been expressed, and the transcript of her testimony occupies
one hundred and five pages of legal cap paper, and has been
examined carefully by this court. In the private examina-
tion the judge strenuously endeavored to impress upon the
mind and heart of this child her filial obligation, her duty
to her surviving parent, the strength of his affection for her,
his kindn^s to her, and his natural right to her custody, and
his ability and willingness to provide for her in every way
(see page 73 and following pages of the Reporter's Tran-
script of Testimony) ; but, while professing respect for her
father, she resolutely refused to elect him as her guardian,
declaring that in no wise was her refusal inspired by any
influence, save her own judgment of what was best for her
interests. In order to illustrate her determination. I will
quote from her testimony (Trans., pp. 90-93) :
The Court (questioning) — "It is a very serious matter for
me to decide these questions. I don't want to decide so that
hereafter you will say that my decision was unjust or unfair
to you, or inconsistent with your happiness; nor do I want
your father to say, if I should decide against him, that my
decision was not right, and not based on sufficient grounds.
Do you understand that ? ' ' Ans.— ' ' Yes, sir. ' ' The Court—
"You understand, also, that the law allows you to say some-
thing about what you prefer?" Ans.— "Yes, sir." . . . .
The Court — "You have reasoned over this matter, you say?"
Ans. — "I have thought a good deal, and have come to a con-
clusion which I think I can never change, am certain of that.
That conclusion is that I want to live with my aunt, and
don't want to go to my father." (Page 94, this testimony
I here condense, preserving the language, avoiding repeti-
tions.) In answer to the Court — "If you should decide to
180 Coffey's Probate Decisions, Vol. 1.
give me to my father, I don't think I will be reconciled to
it in a few months, nor say that you were right, and under-
stood better than I. I should be very unhappy at such a de-
cision. Indeed, I would feel very bad about it. " The Court
(page 96) — "Don't you think your father has some feelings,
too 1 Didn 't you ever consider that ?".... Ans. — ' ' I feel
this way : I am sure he would not feel any the worse for see-
ing me regularly, as he has always done, and maybe stay
with him a week or two, and something like that, and then
stay sometime with auntie, and then go back with him; and
I know that she would be willing; but of course it must be
different the other way." The Court — ''You made me an
answer, a while ago, that when you should be fourteen years
of age you would be entitled to name your own guardian.
How do you know that?" Ans. — "Mamma told jne
She said to me she would be very happy when I was four-
teen, and I asked why, and she said if anything I would be
able to choose my own guardian." (Rptrs. Trs. Testy., p.
98.)
All through her examination the minor adhered to her de-
sire to remain with those with whom she has been domiciled
since her birth, and stated that her mother so desired in her
last hours: "She wanted me to remain with auntie because
aunt had been so good to her" (Reptrs. Trs., pp. 67, 68), etc.
Finally, at the instance of the court, the minor while alone
wrote freely her desire, in these words :
"San Francisco, December 3, 1884.
"Judge Coffey: — My desire is to live with my aunt, Mrs.
C. A. Taber, and hope you will consent to it. I am thirteen
years and eight months. I am now going to the Denman
School and getting along in my studies very well, being now
number one of my room. We now live on 737 Ellis street,
between Larkin and Polk. Hoping you w^ll be of the same
opinion as I am, in regard to living with my aunt, I remain,
' ' Yours respectfully,
"GERTRUDE A. SMITH."
It Avill be seen from the foregoing that the court has done
everything in its power to ascertain what is for the best in-
terests of this child, feeling an extreme reluctance to sepa-
Guardianship of Smith. 181
rate that interest from the father's right, and pajdng great
heed to the argument of his counsel. The right of the father
has been considered fairly and fully; and the court very
much regrets that its views of the minor's interests, and her
own earnest entreaty, compel it to deny his petition. As
was said in the case of Pool v. Gott, supra, this is eminerftly
a case for amicable arrangement between the parties. Some
agreement might have been made, might still be made, by
which the child should spend part of her time with her
father, to allow opportunities for mutual affections and in-
terests to grow up between herself and her paternal rela-
tions; but it is not in the power of the court in this proceed-
ing to decree any arrangement, except to permit the father
freely to visit his child, at such times and places as may be
suitable ; and his counsel will propose such restrictions which,
if agreed upon, will be accepted by the court ; and, if not
agreed upon, the court will settle the terms of the restric-
tions, subject to which the prayer of Mrs. Taber is granted.
The Father or Mother of the Minor if found by the court compe-
tent to discharge the duties of guardianship, ordinarily is entitled
to be appointed guardian, in preference to any other person: Cal.
Code Civ. Proc. 1751. This right of the parent may be lost by
abandoning the child, or by such a course of conduct as makes him
or her unfit to have its care and custody. The rigid rule of the com-
mon law which gave the father the right to the custody and services
of his child, superior to that of the mother and all others, has been
decidedly relaxed in modern times, and it is now universally con-
ceded that the parental right must yield and be subordinated to the
best interests of the child, even to the extent of its being placed in
the hands of strangers. Indeed, neither parent has any right that
can be made to conflict with the welfare of the child: In re Lund-
berg, 143 Cal. 402, 7 Pac. 156; In re Van Loan, 142 Cal. 423, 76
Pac. 37; Ex parte Becknell, 119 Cal. 496, 51 Pac. 692; Ex parte
Miller, 109 Cal. 643, 42 Pac. 428; In re Vance, 92 Cal. 195, 28 Pac.
229; In re Galleher, 2 Cal. App. 365, 84 Pac. 352; Jones v. Bowman,
13 Wyo. 79, 77 Pac. 439, 67 L. E. A. 860; Eusner v. McMillan, 37
Wash. 416, 79 Pac. 988; Nugent v. Powell, 4 Wyo. 173, 62 Am. St.
Eep. 17, 33 Pac. 23, 20 L. E. A. 199.
The Wishes of a Child, if he is of a sufficient age to form an in-
telligent preference, although not conclusive on the court, will al-
ways be given due consideration in determining who shall be named
182 Coffey's Probate Decisions, Vol. 1.
guardian: Stapleton v. Poynter, 111 Ky. 264, 98 Am. St. Eep. 411,
62 S. W. 730. It is not necessary, in order for a child to enjoy this
privilege, that he has reached the age of fourteen: Willet v. Warren,
34 Wash, 647, 76 Pac. 273.
Guardianship of THEODORA F. HANSEN, Minor.
[No. 4,243; decided January 26, 1886.]
Guardian — Eligibility of Nonresident. — Where the mother of a
minor is a nonresident, she is legally incapable of obtaining letters
of guardianship over the child in this state.
Guardian — Eligibility of Married Woman. — Where the mother of
a minor is a married woman, she is ineligible to become guardian.
Guardian — Choice of Child. — A child ten years of age who has been
educated carefully and is a bright girl may be capable of expressing
"an intelligent preference" for a guardian, which the court will con-
sider.
Guardian — Best Interests of Ward. — In awarding the custody of a
minor, or appointing a general guardian, the court is guided by what
appears to be for the child 's best interests as to its temporal, mental
and moral welfare.
Guardian. — Where Application is Made for Guardianship of a
Minor, if there is no person before the court who is legally entitled
to the guardianship, it must be shown, to justify a resistance of the
application, even by the nonresident mother, that no guardian is
needed for the child, or that the applicant is an unfit person.
Guardian — Stranger Preferred to Mother. — Where a mother, after
desertion by her husband, committed her child to the care of the pe-
titioner, agreeing that he should adopt it (which he never legally
did), and afterward, under judgment in an action for divorce by
the mother, the child was awarded to petitioner; and the petitioner
kept the child for nearly six years, until the mother wanted to get
the child again, when he applied for guardianship of her, the mother
opposing it, and the divorce decree being modified pending the
guardianship proceedings, so as to remit the question of custody to
the guardianship department; and during all the period aforesaid pe-
titioner and his wife treated and educated the child as if she were
their own; and the mother is legally incapable and ineligible to
become guardian, being a nonresident and married; and the child has
expressed a preference for petitioner, and it would not be for the
child's best interests to place her anywhere but with petitioner,
guardianship should be granted to petitioner; but so restricted that
the mother may communicate with and visit the child.
Guardianship of Hansen. 183
Guardianship — Interest of State. — In the matter of the guardian-
Bhip of minors, the state is interested in having beneficial influences
surround and impress its future citizens.
In the matter of the guardianship of the above minor, it
appears that letters of guardianship were granted to J. W.
Baldwin, on May 13, 1885, after the usual notices required
by the statute to relatives within the state (the mother, it
would seem, being absent therefrom). Immediately after
the granting of these letters, and on May 15, 1885, affida-
vits and a petition, on behalf of the child's mother (Fran-
ces E. Fairbanks), were filed, for a revocation of the letters
to Baldwin; and on May 18, 1885, an order to show cause
was made, and a citation issued against said Baldwin. There-
after, it would seem, from the record in the case, that pro-
ceedings were taken before Judge Coifey, as if there had
never been a grant of guardianship to Baldwin ; this course
no doubt having been deemed necessary or advisable, in view
of the claim of the child's mother, appearing of record, that
the divorce court, referred to in Judge Coffey's opinion, had
never surrendered or lost jurisdiction over the minor; and
in furtherance of the modification (subsequently had) of the
decree of the divorce court, remitting the question of the
child's custody to the determination of the probate depart-
ment of the court. Two written requests of the child, both
in favor of Baldwin, appear of record, filed on June 6th and
December 24, 1885. Each of them is entirely in the child's
handwriting, addressed to the judge, giving the name and
residence of the child, and expressing its wish to stay with
''Papa Baldwin."
M. A. Dorn and P. B. Nagle, for applicant Baldwin.
Thos. P. Ryan, for the mother, Mrs. Fairbanks.
COFFEY, J. This application has been a long time be-
fore the court, but the delay in deciding it is not due to the
court, except so far as the disposition to come to a cor-
rect conclusion has induced deliberation; and in that regard
the court has not gone beyond the constitutional limitations.
The facts are, as adduced in evidence : The minor was born
July 5, 1875, the parents being Theodore E. Hansen and
184 Coffey's Probate Decisions, Vol. 1.
Frances E. Hansen, who had contracted marital relations in
September, 1874; the parents did not live happily together,
and after a while parted, the husband deserting the wife, as
she alleges, leaving with her two children, one of them, the
minor, Theodora, aged at that time four years, September,
1879; the mother being in poor circumstances, under the ad-
vice of a friend, gave the custody of the child to J. W. Bald-
win, the applicant here, and agreed that he should adopt the
child ; but he did not do so according to law, and subsequently
the mother claims that she repented her agreement, and de-
sired to regain the custody of the child; but upon this point
there is a conflict of evidence, as Baldwin denies that the
mother ever expressed to him a change of mind, but, on the
contrary, he swears she always caused him to believe, until
the year 1885, that he could have the sole custody of said
minor, and that the child has been reared and educated by
himself and wife for six years, and that she has received
the constant care and attention of his wife, whose sole com-
panion she has been during such period; that they have no
child of their own, and that they have become greatly at-
tached to said minor, who reciprocates their attachment; and
that in sickness and in health they have treated the minor
as if she were their natural born child. The uncontroverted
fact is that the applicant, Baldwin, received the child from
her mother, and has retained the custody up to this time.
On the 11th of March, 1885, the minor's mother commenced
an action for divorce in this county against the minor's
father, Theodore E. Hansen, and on the 10th of April, 1885,
the superior court, department one, Wilson, Judge, rendered
a decree of divorce, and awarded the custody of said child
to said Baldwin until the further order of the court ; subse-
quently the lady was married to Mr. Fairbanks, a respect-
able gentleman, residing and doing business in the state of
Nevada, where she has since continued to reside. The decree
of the court in the divorce suit was modified pending these
proceedings, with respect to the custody of the child, by re-
mitting to this department that question.
There was but one application for guardianship — that pre-
ferred by Baldwin ; the mother of the minor is a nonresident.
Guardianship of Hansen. 185
and incapable under the code by reason of such nonresidence ;
and, moreover, ineligible, because she is a married woman :
Code Civ. Proc, sec. 1751. She is here, however, simply re-
sisting the application of Baldwin, in whose custody the child
is in the first place by her own act, and afterward by the
order of the court in the action for divorce.
The child is now ten years of age, and has been examined
by the court in the manner customary in such cases, and has
orally and in writing twice expressed her preference as to
custodians — June 6, 1885, and on December 24, 1885 — each
time declaring her desire to remain with Mr. Baldwin ; these
written requests or expressions of preference are filed among
the papers in the case, as is usual in such matters.
For six years the child has lived in that family, and has
been treated tenderly and educated carefully. She is a
bright girl, and capable of expressing "an intelligent pref-
erence," in the sense of the statute (Civ. Code, sec. 246),
which preference the court may consider.
In awarding the custody of a minor, or in appointing a
general guardian, the court is to be guided, as a paramount
consideration, by what appears to be for the best interests
of the child, in respect to its temporal and its mental and
moral welfare. The mother is a nonresident and a married
woman, and is beyond the jurisdiction of this court in this
proceeding, and if there were no other consideration, she
could not be considered as an applicant; and, in order to
justify her resistance to this application, it should be shown
that no guardian is needed, or that the applicant, Baldwin,
is an unfit person to be appointed guardian.
It appears from the evidence that the Baldwins, to whose
custody this child was primarily committed by the mother,
and subsequently confirmed by the divorce court, have a
comfortable home; they have had Theodora for six years
continuously; she is attached to them and they to her; she
knows no home but theirs; their care and management of
her have been unexceptionable; if she were to leave them
she could gain no better home temporarily, mentally or mor-
ally, while great risks would be run by a change; she would
have to part from her present friends and find new associa-
tions; to be summarily wrested from the only home life she
186 Coffey's Probate Decisions, Vol. 1.
has ever known, and separated from influences that have
been beneficial; and the state is interested in having such in-
fluences surround and impress its future citizens.
This is substantially the sentiment and language employed
by my predecessor on this bench in the Guardianship of
Irma Linden (Myrick's Reports, p. 221), which only follows
the current of decisions in similar cases, such as Cozine v.
Horn, 1 Bradf. 143. Foster v. Mott, 3 Bradf. 409, Holley
v. Chamberlain, 1 Redf. 333, Burmester v. Orth, 5 Redf.
259, and Macready v. Wilcox, 33 Conn. 321. These and
numerous other cases that might be cited to the same pur-
port leave no room for doubt as to the law.
However hard the conclusion may seem to the mother, the
Court must find from the evidence that it is necessary a
guardian should be appointed, and that the gentleman to
whose care she six years ago consigned the child, and in
whose custody the judge who decided the divorce suit or-
dered the child should remain, and with whom such child
desires to remain, should be appointed the guardian; and it
is so ordered.
Let a decree be prepared according to the conclusion here-
in reached, with the restriction that the mother shall from
time to time communicate with and be permitted to visit
the child, and the bond of guardian is fixed at one thousand
dollars. .
For Authorities bearing upon the decision in the principal case,
see Guardianship of Smith, ante, p. 169, and note.
Estate of PETER DONAHUE, Deceased.
[No. 4,796; decided May 10, 1887.]
Partial Distribution — Petition by Widow. — Where one petitions for
partial distribution of an estate, and alleges that she is the widow
of deceased, and is desirous of having her share of the community
property therein described assigned and distributed to her, it suffi-
ciently appears that the petitioner is an heir. As widow she is
included in the statutory term "heir."
Partial Distribution — SuflRciency of Petition as Showing Title and
Seisin. — Where the widow of a decedent petitions to have her share
of the community property assigned to her, by way of partial dis-
Estate of Donahue. 187
tribution, alleging that certain property described in the inventory
of the estate, and then particularly describing it, was conveyed to
decedent by a particular person named, and on a particular date
mentioned, such averments of title in the decedent and seisin at the
time of his death are sufficient.
Partial Distribution — Sufficiency of Petition as Showing Community
Property. — An allegation in the petition of a widow to have her
share of the community property assigned to her by way of partial
distribution, that the property (describing it) "was acquired by
the said deceased after his marriage with your petitioner, to wit"
on a day named, "and was not acquired by gift, bequest, devise or
descent; but, on the contrary, by purchase for a valuable considera-
tion, and as she is advised and insists was, and is the community
property," is sufficient, ae a statement of the character of the prop-
erty. It is sufficient treating the petition as a pleading; but es-
pecially so as an application for partial distribution.
Partial Distribution — Informality of Petition. — A petition for par-
tial distribution of a decedent 's estate should not be treated as
severely as a common-law pleading. All that it need show is that
the person applying has the status of an applicant as described in
the statute, and that the administration of the estate is in a sufficient
state of forwardness to authorize a distribution.
Partial Distribution. — Whenever the Administration of an Estate
has Advanced so far as to be in a sufficient state of forwardness to au-
thorize distribution, it is the duty of the court, upon petition of any
party interested, to proceed to a partial distribution, and for that
purpose to make the necessary investigation of facts.
Partial Distribution — Petition by Executrix. — A party is not in-
capacitated to apply for partial distribution of a decedent's estate
because she is an executrix of his will.
Partial Distribution. — Assuming that the Question of Giving a Bond
upon partial distribution can be considered upon demurrer to an ap-
plication for partial distribution, and the objection taken that the
party to give the bond is both distributee and executrix — obligor
and obligee; the answer is that the law is so written.
Partial Distribution — Petition by Administrator. — The Practice of
the Court since its institution, in recognizing the right of an heir or
devisee, although he is also the representative of the estate, to apply
for and have partial distribution, referred to and cases cited.
Partial Distribution — Petition. — Various Grounds of Special De-
murrers for ambiguity, presented to a petition for partial distribution
of a decedent's estate, are overruled in this case.
Decedent's Widow Applied for Partial Distribution of the Estate,
alleging that "a portion" of it was separate property, and "the
other portion" community property, particularly describing and
claiming the portion alleged to be community. Demurrer, on the
188 Coffey's Probate Decisions, Vol. 1.
ground that it appeared from the petition to be necessary to ascer-
tain and determine the title to the property asked to be distributed,
and that title could only be determined upon final distributipn, or
under section 1664, Code of Civil Procedure, overruled. (See Es-
tate of Jessup, 81 Cal. 408, 21 Pac. 976, 22 Pac. 742, 1028, 6 L. E.
A. 594, affirming Coffey, J.)
The opinion of the court in this matter was rendered up-
on two demurrers (considered together) to an amended pe-
tition for a partial distribution of the estate. The petition
was presented by the widow of the decedent, asking to have
her community rights in the property assigned and distrib-
uted to her by way of partial distribution. The following
quotations are made from the petition in order to give the
exact language of certain important allegations referred to
in the opinion of the court: 1. As to the motive and ob-
ject of the petition — "That she (petitioner) is desirous of
having her share or portion of the community property of
herself and the said Peter Donahue assigned and distributed
to her (page 2, of petition)"; and your petitioner declines
to release, relinquish or assign any claim or interest in com-
mon or community property; but, on the contrary, claims
her share thereof. Wherefore, your petitioner prays that
the said J. Mervyn Donahue and Mary E. Von Schroeder
(coexecutors) may be required to answer this petition, and
that partial distribution of said estate may be made oy or-
der of this court, and that one-half of all of the property
hereinabove described and claimed as community property,
exclusive of such household furniture as may be set apart
to her, be distributed and assigned to her as her share there-
of, and that she may have such further and other relief in
the premises as may be just and proper (Id., p. 35). 2. As
to the relationship and heirship of the petitioner — her status
— "The amended petition of Annie Donahue, widow of Peter
Donahue, deceased, respectfully shows (page 1 of petition) ;
That your petitioner was married to the said Peter Dona-
hue in the state of California, of which they were both resi-
dents, on the sixth day of August, 1864; and since which
time they resided in said state continuously until the death
of said Peter Donahue (Id., p. 2)"; signed, "Annie Dona-
hue" (also by her attorneys) (Id., p. 35) ; and verified hy
Estate of Donahue. 189
her (Id., p. 36). 3. As to the character and quality of the
property the title and seisin of the decedent and his estate,
etc. — "That the estate of the said deceased has been ap-
praised in the aggregate at the sum of 3,778,312 dollars,
whereof a portion is separate property of the said deceased,
and (the) other portion is community property of the de-
ceased and your petitioner (page 1 of petition), as to how
much and what particular parts of the said estate are com-
munity property, she alleges that the parcel of land in the
city and county of San Francisco, described in the inven-
tory of the estate of the said deceased as follows, viz. : 1,
(describing it) .... conveyed by Edward Martin to said
Peter Donahue January 25, 1879 ; recorded in Liber X of
Deeds, page 10, was acquired by the said Peter Donahue,
deceased, after his said marriage with your petitioner, to
wit : on or about the twenty-fifth day of January, 1879, and
was not acquired by gift, bequest, devise or decedent; but,
on the contrary, by purchase for a valuable consideration,
and, as she is advised and insists, was and. is community
property (pages 2 and 3 of petition)"; then follow the de-
scriptions of twenty-nine other parcels of realty, with aver-
ments in the same language as above, as to the inclusion of
each in the inventory of the estate, the date and record of
the conveyance of each to the decedent, and the character
and nature of the acquisition (Id., pp. 3-26) ; then follows
a particular and detailed description of "notes, accounts,
stocks, bonds, choses in action, and other personal property
embraced in the inventory of said estate and therein de-
scribed (Id., pp. 26-33)," with the allegation that "all
thereof were acquired by the said Peter Donahue in his life-
time, and after his marriage with your petitioner, and was
not, nor was any, or either, or any part thereof, acquired
by gift, bequest, devise or descent; but, on the contrary, by
purchase for a valuable consideration, and, as she is advised
and insists, the same, and each and every thereof, were and
are community property (Id., pp. 33, 34)"; then follow
similar averments respecting an additional chose in action,
separately specified on page 34 of the petition. Following
these allegations and specifications of the property of de-
ceased is the averment: "Your petitioner further shows that
190 Coffey's Probate Decisions, Vol. 1.
she has reason to believe, and does believe, that there are
other assets and property of the said Peter Donahue, the par-
ticulars of which are at present unknown to her, some or
all of which are community property; and she prays leave
whenever the same, or any part thereof, may be discovered,
to have the same, so far as may be necessary, included here-
in by proper amendment (page 34 of petition)."
There were ten (10) grounds of demurrer taken, seven of
the grounds being by way of special demurrer for ambig-
uity. All of these grounds are fully and separately set out,
and enumerated in their order, in the opinion of the court.
The opinion also analyzes the various grounds of the de-
murrers and makes them more clear by stating their
"objective points." After an oral argument upon the de-
murrers, a printed brief was prepared and submitted on be-
half of the demurrants, and a reply to this was presented
(March 11, 1887) on behalf of Mrs. Donahue. In this
printed brief but two points were urged upon the court,
viz.: (1) The averment that the property was purchased
after marriage for a valuable consideration is ambiguous and
uncertain, in not showing and virtually tracing the source
of the consideration ; and so vulnerable to special demurrer.
"Such valuable consideration may or may not constitute
the property, separate property. If the funds constituting
the valuable consideration were funds of the community,
then of course the property would be community property.
While if. on the contrary, such funds constituted the funds
of the separate estate of either of the spouses, then the prop-
erty would not be common property, but would give the
separate estate of the spouse out of whose separate funds
such consideration proceeded."
(2) That the statute which gives an heir a right to have
partial distribution of the succession is conditioned upon
giving a bond for the payment of his proportion of the
debts; that this bond must run to the executor or adminis-
trator for the creditor 's benefit ; that where an heir is al-
so the representative of the estate, he cannot give the bond
required by the statute (which must be presumed to be the
ordinary legal bond), for he would be both obligor and ob-
ligee, and thus rob the bond of its usual — and, it must be
Estate of Donahue. 191
held, indispensable — attributes; therefore, the statute must
be construed as excepting from its provisions an heir or lega-
tee who is at the same time the legal representative of the
estate — ^such heir is under a disability, has a want of ca-
pacity, to apply for a partial distribution.
Inasmuch as all the ten grounds of demurrer are enumer-
ated in the opinion of the court, and apparently considered
advisable to be passed upon, it may be of value to notice the
positions taken on the oral argument by the demurrants,
which were seemingly abandoned or tacitly consented to be
put aside, by their printed brief aforesaid. As the peti-
tioner's counsel in their "reply" to this printed brief
claimed every advantage that could be considered gained
from this apparent waiver of original positions, it has been
deemed best to state these positions in the language of such
reply brief; especially as there is also given, in a succinct
form, the answer of petitioner to each of these positions, as
advanced upon the oral argument. We quote from pages 2,
3 and 4 of "Reply to Points on Demurrer" (presented by
Mrs. Donahue's counsel, Messrs. Galpin, Scripture and
Loughborough), viz.:
"The paper (demurrants' brief) is as remarkable for what
it omits, as for its contents. It practically abandons num-
erous points urged with great apparent earnestness on the
oral arguments. Respondents had claimed : 1. That their
general demurrer, ' that the petition stated no cause of
action,' was good, upon the authority of Dye v. Dye; to
which we replied, that Dye v. Dye had been overruled by
Gimmy v. Doane, 22 Cal. 637-639; and that the petition
stated a cause of action within the latter case. 2. They
argued, also, 'that the petition did not allege that Peter
Donahue was seised at his death of the various pieces of
property described in the petition.' We replied, that the
petition did allege 'the date of each conveyance to Peter
Donahue as being subsequent to his marriage, and that said
property w^as now in the inventory as part of his estate.'
3. They argued that the petition did not allege 'that the
grantor of Peter Donahue was ever seised in fee of the
premises described.' We replied, that 'we were not declar-
ing in ejectment, but petitioning for distribution of com-
192 Coffey's Probate Decisions, Vol. 1.
munity property; and that the widow was entitled to her
share of all property in possession, whether held by titles
good, bad, indifferent or worthless.' 4. They argued that
'the petition should state the probative facts required by
the statute, as was decided in Dye v. Dye, and also it should
not state probative but ultimate facts, as was decided in
authorities read from eastern states.' We replied that the
argument defeated itself, for both propositions contended
for could not be true; and, further, that we did plead the
probative facts of marriage, subsequent acquisition of prop-
erty, etc., and that we also did plead the ultimate fact, that
the property specified was community property, that is,
property of the community; and that ownership, like seisin,
was the ultimate fact. 5. They argued that although 'we
had alleged that the property was purchased for a valuable
consideration after marriage, we should also have alleged
that said property was not purchased with the separate
estate of Peter Donahue.' We replied that, as a general
rule, the pleader was not required to plead negative matter,
because he was not required to prove it; and that this case
came within no exception to that rule. 6. They argued
on the next day, shifting their point from negative to
affirmative, that we 'must prove and allege that the prop-
erty was purchased with community funds.' We replied,
that we were compelled to plead such affirmative matter
only as we were required to prove; that because of the legal
presumption that the purchase was made with community
funds, we were not compelled to plead as claimed; on the
contrary, that respondents should allege and prove that said
property was separate estate, in order to raise and try that
issue The points now presented in support of the
demurrer are, by the printed argument, reduced to two. The
others, discussed at such length orally, we may deem aban-
doned. ' '
Finally, attention is directed to the fact that section 1664.
Code of Civil Procedure, referred to in the final (tenth)
ground of demurrer, is the new section added to the probate
law, approved March 18, 1885 (Stats. 1885, pp. 208-210). The
section provides for a proceeding, in the nature of a civil
Estate of Donahue. 193
action, to determine heirship and the status of all claimants
to any estate of a decedent in course of administration, be-
ing intended to meet such cases as the Blythe estate, for
which litigation it was avowedly devised. In the language
of the section, "at any time after the expiration of one
year from the issuing of letters testamentary or of adminis-
tration upon a decedent's estate, any person claiming to be
heir, or to be entitled to distribution of any part of the
estate, may 'file a petition in the matter of such estate,
praying the court to ascertain and declare the rights of all
persons to said estate and of all interests therein, and to
whom distribution thereof should be made ' " ; whereupon,
the elaborate proceedings mentioned in the section for bring-
ing in all claimants, and determining the respective inter-
ests of each, shall be taken.
A. H. Loughborough, P. G. Galpin, John T. Doyle, H. D.
Scripture, for petitioner, Mrs. Donahue, widow and execu-
trix.
R. H. Lloyd, for J. Merv,yn Donahue, executor.
0. P. Evans, for Mrs. Von Schroeder, executrix.
T. I. Bergin, of counsel (against the petition).
COFFEY, J. Annie Donahue, widow of Peter Donahue,
deceased, on the fifth day of February, 1887, filed her
amended petition in this court, praying for a partial dis-
tribution to her of one-half of all of certain property de-
scribed in said petition claimed by her to be community
property. To this petition, on the eleventh day of Febru-
ary, were interposed two separate demurrers on behalf
severally of J. Mervyn Donahue, and Mrs. Mary Ellen Von
Schroeder, devisees named in the last will of said Peter
Donahue, deceased.
GROUNDS OF THE DEMURRERS.
The points of both demurrers are the same: 1. The in-
sufficiency of the statement of facts. 2. The lack of legal
capacity in the petitioner. 3. The petition is ambiguous,
uncertain and unintelligible in this : That it is uncertain
therefrom whether or not said Peter Donahue left any com-
Prob. Dec, Vol. I — 13
194 Coffey's Probate Decisions, Vol. 1.
miinity or other property, and there is no direct averment
in the petition that he left common or any property ; and
the fact, if such be the fact, that he did leave common prop-
erty, appears from said petition only by recital and infer-
ence, and not by any direct or positive averment on that
behalf. 4. Also, that the petition does not distinctly allege
that there was any community property; but alleges merely
conveyance of certain parcels of land to the said Peter Don-
ahue, at the dates in the petition specified, with the aver-
ment that the same was acquired by said Peter Donahue,
deceased, after the said marriage with petitioner, and was
not acquired by gift, bequest, devise or descent; but, on the
contrary by purchase for a valuable consideration, and
without stating or alleging whether or not the considera-
tion for each and every of the respective purchases in said
petition mentioned was or was not funds of the community;
or that the persons, or any of them, so conveying, had any
title to be conveyed, or that by force of such conveyance
said deceased became the owner of the property so con-
veyed; also, that it is uncertain and not alleged that the
consideration for each of said purchases in said petition
mentioned was not part of the separate property and
separate funds of said Peter Donahue, and not any portion
of the community property or funds of the community.
5. Also, that the petition does not allege that the lands
in said petition described, or any part of the same, were
or was the property or estate of said Peter Donahue, de-
ceased, at the time of his death ; or that the same, or part
of the same, is now any part or portion of the property or
estate of said deceased, or that said Peter Donahue con-
tinued to own such several parcels of land from the time of
the alleged purchase of the same, as in said petition men-
tioned, up to the time of his death, or that such lands are
of the character as to entitle the petitioner to partial dis-
tribution of the same, or part of the same; and the mere
fact that said lands, or any part of said lands, may be found
in the inventory or described in the inventory of the estate
of said Peter Donahue, deceased, does not prove title in said
Peter Donahue, deceased, at the time of his death, or upon
petition for distribution thereof, at the time of said appli-
Estate op Donahue, 195
cation. 6. Also, that it is uncertain in this : that the aver-
ment therein contained in respect to the several parcels of
property therein mentioned and described — that the same
were severally acquired at the dates therein alleged, and
the same were acquired subsequent to the marriage therein
alleged, and that the same were not acquired by gift, be-
quest, devise or descent ; but, on the contrary, by purchase
for a valuable consideration, and, as the petitioner is ad-
vised and insists, was and is community property — is not
an averment that the same or any part of the same is com-
munity property, and no allegation that the petitioner is
informed and verily believes that the same or any part of
the same is community property; that, while said petitioner
may be advised and may insist that the same is community
property, such advice and insistence constitute no averment
of any issue of material fact, and the same is not the equiva-
lent of the apt averment that said petition should in this
behalf contain. 7. And that the petition is uncertain in
this : that in and from said petition it is uncertain whether
the same be merely designed to definitely ascertain what is
or what is not common property of said estate, or whether
the same is designed for partial distribution of the prop-
erty of the community heretofore existing between said
Annie Donahue and said petitioner, or for partial distri-
bution of said estate. 8. And that the same does not defi-
nitely describe the particular property whereof partial dis-
tribution is therein and thereby asked. 9. And that it is
not certain therefrom whether the proceedings therein and
thereby contemplated are the proceedings provided for in
and by sections 1658 to 1662, inclusive, of the Code of Civil
Procedure, or of the proceedings authorized and provided
for in and by section 1664 of said Code of Civil Procedure.
10. And, as a final ground of demurrer, it is claimed that
it appears, from the face of said petition, that it is necessary
to ascertain and determine the title to the particular prop-
erty, whereof said petitioner prays partial distribution, and
such title can only be determined either upon final distrib-
ution of said estate, or under the provisions of section 1664
of said Code of Civil Procedure, and not under said provi-
196 Coffey's Probate Decisions, Vol. 1.
sions of said code relating to partial distribution of the
estate of said deceased.
THE ALLEGATIONS OF THE PETITION.
The petition itself sets forth that Peter Donahue died
November 26, 1885, leaving a last will and testament, which
has been admitted to probate in this court, whereby, among
other things, he nominated the petitioner, Annie Donahue,
and James Mervyn Donahue, his son, and Mary Ellen Von
Schroeder, executors thereof, all of whom have qualified and
are acting as such; that the estate of said deceased has been
appraised in the aggregate at the sum of $3,778,312, where-
of a portion is separate property of the said deceased, and
the other portion is community property of the deceased
and the petitioner ; that the executors have caused notice
to be published as required by sections 1490, 1491, Code of
Civil Procedure, and that the time limited for the presenta-
tion of claims against the said decedent has expired; that
all the claims against the said deceased that have been pre-
sented, allowed and approved have been paid, and that the
claims which are disputed are few in number and insignifi-
cant in amount, in view of the magnitude of the estate ; that
more than ten months have elapsed since said will was
proved and letters testamentary issued; that the petitioner
was married to the said Peter Donahue in the state of
California, of which they were both residents, on the 6th
of August, 1864, and since which time they resided in said
state continuously until the death of said Peter Donahue;
that she is desirous of having her share or portion of the
community property of herself and the said Peter Donahue
assigned and distributed to her; and as to how much and
what particular parts of the said estate are community prop-
erty, she alleges that certain pieces of property described
in her petition were acquired by said Peter Donahue after
his said marriage with the petitioner, and were not acquired
by gift, bequest, devise or descent ; but, on the contrary, by
purchase for a valuable consideration, and that such pieces
of property were and are, as she is advised and insists,
community property. The petitioner in her petition de-
clines to release or relinquish or assign any claim or interest
Estate of Donahue. 197
in common or community property, but, on the contrary,
claims her share thereof.
OBJECTIVE POINTS OF THE DEMURRERS.
As stated in argument b}^ the counsel for the demurrants,
the objective points of- the demurrers are: (1) It does not
allege title in the decedent; (2) there is no averment that
decedent continued to own the property, or that it consti-
tutes any part of the estate; (3) that it does not state the
source of the title of the community ; that it should state the
facts; that the averments of community property are insuffi-
cient; (4) that the petitioner is incapacitated to make this
application by reason of the fact that she is petitioner for
partial distribution and executrix at the one time ; therefore,
practically, plaintiff and defendant in the same suit.
THE STATUTE UNDER V^HICH PETITION PRESENTED.
This is a petition presented under chapter 11, article 1,
part 3, title 11, the pertinent sections of which read as fol-
lows :
Section 1658. "At any time after the lapse of four
months from the issuing of letters testamentary or of ad-
ministration, any heir, devisee, or legatee may present his
petition to the court for the legac.y or share of the estate to
which he is entitled, to be given to him upon his giving bonds,
with security, for the payment of his proportion of the debts
of the estate."
Section 1659. "Notice of the application must be given
to the executor or administrator, personally, and to all per-
sons interested in the estate, in the same manner that notice
is required to be given of the settlement of the account of
an executor or administrator."
Section 1660. " The executor or administrator, or any per-
son interested in the estate, may appear at the time named
and resist the application; or any heir, devisee or legatee
may make a similar application for himself."
Section 1661. "If, at the hearing, it appear that the es-
tate is but little indebted, and that the share of the party
198 Coffey's Probate Decisions, Yol. 1.
applying may be allowed without loss to the creditors of the
estate, the Court must make an order in conformity with the
prayer of the applicant, requiring:
"1. Each heir, legatee, or devisee obtaining such order, be-
fore receiving his share, or any portion thereof, to execute
and deliver to the executor or administrator a bond, in such
sum as shall be designated by the court, or a judge thereof,
with sureties to be approved by the judge, payable to the
executor or administrator, and conditioned for the payment,
whenever required, of his proportion of the debts due from
the estate, not exceeding the value or amount of the legacy
or portion of the estate to which he is entitled;
"2. The executor or administrator to deliver to the heir,
legatee, or devisee, the whole portion of the estate to which
he may be entitled, or only a part thereof, designating it.
If, in the execution of the order, a partition is necessary be-
tween two or more of the parties interested, it must be made
in the manner hereinafter prescribed. The costs of these
proceedings shall be paid by the applicant, or, if there be
more than one, shall be partitioned equally amongst them."
Under section 1662 of the same code provision is made as
to the use of this bond and the manner in which it is to be
enforced.
It appears from this petition that the petitioner is an heir.
She is the widow, and in the sense of the statute is included
under the term heir: Estate of Rieaud, Myr. 158.
The averments of title in the decedent and of his seisin
at the time of his death are sufficient.
For the purposes of this petition the statement of the char-
acter of the property is sufficient : Meyer v. Kinzer and Wife,
12 Cal. 252, 253, 73 Am. Dec. 538; Smith v. Smith, 12 Cal.
224, 73 Am. Dec. 533; Payne and Dewey v. Treadwell, 16
Cal. 243 ; Rough v. Simmons, 65 Cal. 227, 3 Pac. 804.
Treating this petition as a pleading, it is sufficient. But
it is not necessary to treat a petition for partial distribution
with the same severity that one would treat a common-law
pleading. All that such a petition need show is that the
person applying has the status of an applicant, and that the
administration is in a sufficient state of forwardness to au-
Estate of Donahue. 199
thorize distribution. Whenever the administration has ad-
vanced so far, it is the duty of the court, on petition of any
party interested, to proceed to partial distribution, and for
that purpose to make the necessary investigation of facts.
But it is contended that the petitioner is incapacitated to
make this application, by reason of the fact that she is peti-'
tioner for partial distribution and executrix at the one time,
therefore, practically, plaintiff and defendant in the same
suit.
The demurrants argue that she cannot act in the dual
capacity of executrix and petitioner for partial distribu-
tion; that she cannot be virtually plaintiff and defendant
in the same suit; and support this proposition by an
abundance of citations, which it is claimed establish the
principle that the applicant is not in a position to seek
this remedy; that her attitudes as executrix and as an appli-
cant for partial distribution are irreconcilable; that she
labors under a disability which should determine the appli-
cation against her; and that, therefore, in form and substance
this application is obnoxious to the demurrer. All the cases
in support of this proposition have been examined and con-
sidered by the court, but it has been unable to reconcile them
with the circumstances of this case.
If the position of the demurrants be true, this court has
been proceeding against its institution upon an erroneous
theorv% for numerous applications of precisely similar char-
acter have been made and granted; one of the latest of
which I find in the matter of the Estate of Daniel T. Murphy,
deceased, where Anna L. Murphy, the widow of Daniel T.
]\Iurphy, deceased, and Samuel J. Murphy and others, the
children of the deceased, filed their petition and application
for partial distribution of the estate of said deceased, which
petition and application was granted upon the execution and
delivery to Anna L. Murphy, as executrix, of a bond, with
proper sureties, from Anna L. Murphy, as widow, and the
others as children and heirs and devisees of the deceased.
The attorneys for the applicant, Anna L. IMurphy, in that
case appearing individually and as the sole executrix of the
last will of David T. Murphy, detn^ased, were Messrs. McAl-
200 Coffey's Probate Decisions, Vol. 1.
lister & Bergin; Estate of Daniel T. Murphy, Deceased, No.
4,313. Decree of Partial Distribution. Filed March 4,
1887. See, also. Estate of Silas W. Sanderson, Deceased (No.
5,464).
Assuming, then, that the question of the giving of a bond
is in order at this stage of the proceedings, the answer to
the objection of the demurrants is that the law is so writ-
ten, and that as written it has been uniformly applied in
cases differing in no essential particular from the one now
before the court.
The demurrer overruled. Ten days to answer.
An Heir, Devisee or Legatee may, at any time after the lapse of four
months from the issuance of letters testamentary or of administra-
tion, present a petition for the share of the estate to which he is
entitled, or any portion thereof, to be given him upon his furnish-
ing security for the payment of his proportion of the debts of the
estate: Cal. Code Civ. Proc. 1658. No one but an heir, devisee or
legatee (Estate of Foley, 24 Nev. 197, 51 Pac. 834, 52 Pac. 649), or
his assignee or grantee (Estate of Straus, 144 Cal. 553, 77 Pac. 1122)
can petition for a partial distribution. An executor or administrator,
as such, has no authority to file a petition: Alcorn v. Buschke, 133
Cal. 655, 66 Pac. 15; In re Letellier, 74 Cal. 312, 15 Pac. 847.
The Codes Make no Attempt to Prescribe the Form and Contents
of petitions for partial distribution, and clearly do not contemplate
or require elaborate pleadings in such proceedings: Estate of Mur-
phy, 145 Cal. 464, 78 Pac. 960. For forms of petitions, see Estate
of Levison, 98 Cal. 654, 33 Pac. 726; Estate of Crocker, 105 Cal.
368, 38 Pac. 954.
Guardianship of the Person of WILLIE McGARRITY,
Minor.
[No. 3,386; decided June 4, 1884.]
Guardianship — Wishes of Deceased Mother. — In the appointment of
a guardian for a minor^ the court must regard the dying declaration
of the mother as to her wishes in the premises, when not inconsistent
with the welfare of the child.
Guardianship — Religious Instruction of Ward. — Where a child is bap-
tized in a particular faith to which its mother belonged, the guar-
dian of the child should secure to her instruction in the faith of the
mother, until the child arrives at an age when she is presumptively
competent to determine her own doctrine of religion.
Guardianship of McGarrity. 201
On May 27, 1884, Mary L. Graves filed a petition to be
appointed guardian of the person of Willie McGarrity.
The petitioner averred that the minor is a resident of San
Francisco; that both her parents are dead; that petitioner is
the sister of the deceased mother of the minor; that Sarah
C. Bachelder is also a sister of the deceased mother, and
Thos. F. Conklin a brother. The petition also contained the
further necessary averments.
A citation was issued to the aunt not petitioning- and the
uncle, returnable on June 3, 1884, at which time the appli-
cation was heard; the facts proved on the hearing appear
from the opinion of the court.
John M. Burnett, for petitioner.
COFFEY, J. In this matter it appears from the evidence
of Mrs. Graves, the applicant, and of her brother, Thomas
F. Conklin, and Mrs. Cathcart, a friend of the family, that
the mother of the minor upon her deathbed desired her sister,
the petitioner here, to take care of "Willie," the minor.
She desired her brother (Mr. Conklin) and her sister (Mrs.
Graves) to take care of the child. There is no formal oppo-
sition to the application, but the minor appears in court
accompanied by her aunt, Mrs. Bachelder, sister of decedent
and of applicant; and Mrs. Bachelder testifies that the child
was committed to her care and custody by the mother during
the latter 's illness and pending an operation upon her, and
the child has remained there ever since, and desires to remain
there.
All the parties are respectable and harmonious in their
mutual relations, and there is no individual incapacity in
either case. This being the fact, the court must regard the
proved dying declaration of the mother, when it is not incon-
sistent with the welfare of the child. While the child mani-
fests a tender devotion to Mrs. Bachelder, she evinces no
aversion toward ]\Irs. Graves, her mother's particular and
final choice, and the latter is amply competent, pecuniarily
and otherwise, to maintain the child. The child's true name
is Lucy; she was baptized in the Catholic Church, to which
her mother belonged (according to the child's statement to
202 Coffey's Probate Decisions, Vol. 1.
the court), and the guardian must be required to secure the
minor instructions in the faith of the mother until the child
arrives at an age when she shall be presumptively competent
to determine her own doctrine of religion. The minor is a very
intelligent girl between ten and eleven years of age, with
strong sentiments of affection toward her aunt, Mrs. Bach-
elder, who must be allowed to see her as frequently as prac-
ticable; and also Mr. Conklin will have the same privilege
guaranteed in the order of the court. The custody of the
child is awarded to Mrs. Graves, under the intimated re-
strictions, and with bond fixed at $500.
Estate of JEREMIAH WHALEN, Deceased.
[No. 2,328; decided February 11, 1885.]
Unsolemnized Marriage — Evidence to Establish. — Where it appears
that parties, without the sanction of any ecclesiastical ceremony,
agreed between themselves to live together as man and wife, and
did live as such in one place of domicile for years, and in .other
places, and so held themselves out to others moving in the same
limited social sphere; and it further appears that each of the parties
testified in a legal controversy, wherein they were both called as wit-
nesses, to being, respectively, married persons, and stated their re-
spective places of habitation to be where in fact they lived together
at the time, their marriage is proved.
Unsolemnized Marriage — Evidence to Establish. — Where persons
called to prove that a man and woman lived as husband and wife
and held themselves out as such to others living in the same social
sphere, are credible witnesses, no matter how circumscribed is their
social environment, their testimony is sufficient to establish repute.
Unsolemnized Marriage — Declarations to Support. — Where it ap-
pears that an alleged spouse of an unsolemnized marriage has testi-
fied as a witness, subsequently to the alleged marriage, that he was
a married man, such declaration is the most important evidence that
can be offered in support of such a marriage.
Marriage. — Where the Relation of Husband and Wife is Once Es-
tablished, no subsequent conduct of either spouse, which does not
culminate in a legal dissolution, can affect the judicial determination
of the question of their status.
Estate of Whalen. 203
Letters of administration were granted herein to Philip A.
Roach, as public administrator, on March 20, 1883. Subse-
qnently Henrietta C. Whalen gave and filed notice of her
appearance in the administration, as the surviving wife of
the decedent ; and thereafter, at the proper stage of the
administration, on November 19, 1883, filed her application
for a distribution of the estate, claiming a share thereof as
the widow of the deceased. This application was opposed
by Joseph L. Whalen, a brother, and Jane E. Gregory, a
niece of the decedent, upon the ground that the petitioner
was not the surviving wife of the decedent, as claimed by her.
The opinion of the court below was rendered after consid-
eration of the testimony produced in support of the issue
tendered by the opposition; and, in accordance with the deci-
sion of the court, distribution of the estate was thereafter
ordered, on February 11, 1885.
M. S. Eisner, for the petitioner, Henrietta C. Whalen.
M. Lynch, contra, for decedent's brother and niece.
COFFEY, J. In this matter all the propositions of law
are undisputed ; the only question is as to two or three matters
of fact. The applicant, Henrietta C. Whalen, claims that
she entered upon the marriage state with the decedent in
the city and county of San Francisco after a brief acquaint-
ance — a year or more — without the sanction of any eccle-
siastical ceremony, but after an agreement between them to
live together as man and wife, followed by an immediate
assumption of marital relations; and they continued to co-
habit for several years, except at intervals when she went to
the country on account of her health, being troubled with a
neuralgic affection which was aggravated at seasons by the
climate of San Francisco, according to her testimony. For
years these two lived together in the northeast corner of
Kearny and Jackson streets, and in other places, as man and
wife, and held themselves out as such to others moving in
the same limited social sphere; this is proved by the evi-
dence of j\Tr. ThurstoTi, Mr. Findley and IMrs. Taylor (or
McCarthy as she is now) and her daughters and son. They
are credible witnesses, and no matter how circumscribed their
204 Coffey's Probate Decisions, Vol. 1.
social environment it is sufficient to establish repute. Mrs.
Whalen herself testified that she was not in the habit of
making acquaintances, but "was a great hand to stay at
home," and that neither before nor after marriage did she
visit families, except those in the house wherein she was
domiciled.
There is one fact in evidence which is more important than
any other — the pivotal fact of this case, namely, the oath-
bound declaration of Jeremiah Whalen, the decedent, made
at a time while he and Henrietta were living on the north-
east corner of Kearny and Jackson streets, which shows
not only that they had a habitation there, but that they
held to each other the relation of husband and wife. This
is more important, I say, in support of applicant's case than
any other fact in evidence, because you cannot take a man's
declaration in a more solemn way than when on the witness-
stand under the sanction of an oath, and examined under
the forms of law and with a knowledge of the pains and pen-
alties of perjury, and the consecpiences of his declaration
with regard to his family circumstances and the influence of
his statement upon his private fortune. Under such circum-
stances in the case of Wight v. Wight, before Court Com-
missioner Robert C. Rogers, in 1866, Jeremiah Whalen, the
decedent, swore that he was a married man and lived in this
house , northeast corner Kearny and Jackson streets.
The applicant here Avas examined in the same controversy
before Commissioner Rogers, and testified that she was a
married woman living with her husband, and that her name
was Henrietta C. Whalen, and that she lived in that house
at the time of her testimony. She signed her name "Henri-
etta C. Whalen." It should seem that these two persons were
no other than the decedent and the applicant; and by their
own statements contemporaneously made, and in the same
proceedings under judicial oath, they sustained to each other
the relation of husband and wife. These declarations seem
to me to be sufficient corroboration of applicant's testimony
as to the contraction and consummation of the marriage
and the subsequent continuous cohabitation for years. In
addition, while she was absent from the city Mr. Whalen
Estate of Whalen. 205
constantly corresponded with her, although, except in one
instance, he did not address her as "my dear wife," or sub-
scribe himself as husband, yet he superscribed his letters to
her by his own surname, "Mrs. Henrietta C. Whalen." That
is a public recognition, which was fortified by declarations
made more than once to persons who addressed him ; j\Ir.
John H. Harney, for one, a fellow-clerk in a public office,
when the latter found on INIr. Whalen 's desk a letter so
superscribed ; also at another time to Mons. Perrier, the res-
taurateur. These declarations were made at a very late date
long after the informal nuptials. Mrs. Whalen, for reasons
already suggested by her, left this city and went into the
interior and to the mountains, and pursued an irregular
life for years; but, as I have had occasion to say in an-
other case, "once establish the relation of husband and wife
between these parties and the subsequent conduct of either
of them, which does not culminate in a legal dissolution, can-
not affect the judicial determination of the question of their
status." She may have misconducted herself, may have
been a bigamist, subsequently, still her legal rights were
vested by the law, which courts sit to administer, not to set
aside; the judge's personal views as to such marriages or such
misconduct should not affect the court's administration or
application of the law. The court finds the fact and applies
the law ; it finds the facts proved as alleged, and that the
applicant is the surviving Avife of the decedent intestate,
Jeremiah Whalen. His own conduct inconsistent with his
relation to Henrietta — the fact that he led Mrs. Stees, a
witness in this proceeding, to believe that he was unmarried,
does not detract from the strength of what has been said.
Mrs. Stees' testimony may be taken as true, and. so far as
this discussion is concerned, there is no necessity of imputing
inveracity to any witness in this proceeding; Mrs. Stees'
statement need not be challenged — her own eccentricity of
matrimonial conduct has no bearing upon her credit as a wit-
ness; and accepting her testimony as truthful, it would appear
that Jeremiah Whalen, for the purpose of deceiving her and
contracting an alliance with her, discarded his first spouse
and led the witness to believe that he was a free man. Cases
206 Coffey's Probate Decisions, Vol. 1.
f
of that kind are so numerous that it is not necessary to dilate
thereupon.
So far as such a marriage can or need be established, it
has been established in this case. The prayer of the peti-
tioner is granted. Let the appropriate decree be framed and
submitted to the court.
Estate op JEANNETTE HELD, Deceased.
[No. 3,025; decided June 30, 1884.]
Special Administrator — Person Entitled, to Letters. — In making the
appointment of a special administrator, the court must give pref-
erence to the person entitled to letters testamentary or of adminis-
tration, unless he is shown incompetent for the position. The court
has no discretion.
Special Administrator — Want of Integrity and Improvidence. — The
evidence in this case is held insufficient to establish improvidence
or want of integrity on the part of the applicant for special letters
of administration.
On June 9, 1884, John E. Hammersmith filed his petition
for special letters upon the estate of the above-named dece-
dent. He alleged that she died in San Francisco, a resident
thereof and leaving estate therein, on December 9, 1883 ; that
she left a last will and testament dated July 2, 1883, wherein
he, petitioner, was named as executor; that he was a son of
decedent ; that on December 19, 1883, he filed the will together
with a petition for its probate and for his appointment as
executor thereof, but that the probate of such will was being
contested and a special administrator was necessary. Peti-
tioner based his application on sections 1411, 1412 and 1413,
Code of Civil Procedure, and the petition contained the
further usual averments.
This application was opposed by Amelia Haxe, a daughter
of deceased, who asked that special letters be issued to the
public administrator.
It was asserted that the applicant claimed certain property
to be his own, which was alleged to be a part of the estate ,
Estate of Held. 207
of the decedent, and that he claimed interests adverse to said
estate; also that he had without right or authority assumed
to take charge of the estate of decedent since her death, and
had improvidently managed the same; as to the claim of
the applicant to certain property alleged to belong to the
estate, it was shown that shortly before her death the dece-
dent had executed a deed to him of certain real estate, under
which he asserted title in his own right, which deed was
claimed to be void on various grounds ; and the invalidity of
this deed was set up as a circumstance to prove the lack of
integrity of the applicant ; as to his improvidence, it was
claimed that while he had assumed control of the estate, he
had permitted certain premises belonging to it to remain idle
for some time, and that this was "improvidence" within the
meaning of the code ; the applicant had also expended $1,000
of the moneys of the estate as a retainer to his attorneys, on
the contest of the will, and it was claimed that he had no
right to pay attorneys' fees out of the estate until he should
be appointed executor, and that this was also ' ' improvidence. ' '
Thos. I. Bergin, for John E. Hammersmith, applicant.
Geo. Flournoy, for Mrs. Amelia Haxe, opposed.
Thos. V. O'Brien, for Gustave Held, absent heir.
Thos. F. Barry, for Haxe minors.
H. E. Highton, for Russ minors.
COFFEY, J. Applicant is the son of decedent and named
in the will offered for probate as executor. He is of legal age
and prima facie competent and eligible under the statute :
Code Civ. Proc, sec. 1413.
It is suggested that he is not a proper person to take letters
by reason of lack of integrity and also "improvidence"
(Code Civ. Proc, sec. 1369, subd. 4) ; but this is not estab-
lished; it is "not proven"; and, in view of that, the court
has no discretion to deny this application.
Granted.
In Appointing a Special Administrator, the court must give pref-
erence to the jiiTKon entitled to letters testamentary or of admin-
208 Coffey's Probate Decisions, Vol. 1.
istration (Cal. Code Civ. Proc. 1413; Ariz. Eev. Stats. 1689; Ida.
Rev. Stats. 5392; Mont. Code Civ. Proc. 2502; Nev. Comp. Laws,
2857; Okl. Rev. Stats. 1573; S. D. Pro. Code, 121; Utah Rev. Stats.
3823; Wyo. Rev. Stats. 4641); but no appeal lies from the order of
appointment: Estate of Carpenter, 73 Cal. 202, 14 Pac. 677; Estate
of Ohm, 82 Cal. 160, 22 Pac. 927.
The Courts have no Authority to Add to the Disqualifications of
Administrators which have been prescribed by the legislature, nor
to decline to issue letters to one who possesses the statutory right
to them: Estate of Muersing, 103 Cal. 585, 37 Pac. 520; Estate of
Brundage, 141 Cal. 538, 75 Pac. 175; Estate of Carmody, 88 Cal. 616,
26 Pac. 373. As to what improvidence or lack of integrity will dis-
qualify a person to act as administrator, see Estate of Carmody, 88
Cal. 616, 26 Pac. 373; Estate of Newman, 124 Cal. 688, 57 Pac. 686,
45 L. R. A. 780; Root v. Davis, 10 Mont. 228, 25 Pac. 105; Estate
of Courtney, 31 Mont. 625, 79 Pac. 317.
Estate of PETER G. PARTRIDGE, Deceased.
[No. 3,308; decided August 26, 1886.]
Inventory. — An Administrator must Make a True Inventory and
appraisement of all estate of the decedent coming to his possession
or knowledge; and he is accountable with respect to this duty.
Inventory — Adverse Claim Against Property. — If any portion of a
decedent's estate is the subject of an adverse claim, it is prudent on
the part of the administrator to add a memorandum to the inventory,
stating the asserted claim. But the property must be inventoried;
the administrator cannot stand neutral because the decedent 's title
is disputed.
Inventory — Property Claimed Adversely to Estate. — An adminis-
trator cannot omit to inventory property said to belong to his in-
testate which is the subject of an adverse claim, on the pretense
that he wants to stand neutral between the estate and the adverse
claimant, leaving the merits of the controversy to the court's de-
termination. The administrator cannot assume an attitude of neu-
trality; the statute points out his duty; and for the court to pass
upon the merits of the adverse claim would be to assume a jurisdic-
tion which, in probate, it cannot exercise.
Inventory — Disputed Title. — The Probate Court ought not, it seems,
to reject an inventory of a decedent's estate, or order it modified,
because it contains property, the title to which is disputed.
Estate of Partridge. 209
Inventory — Trying Questions of Title. — Where part of an inven-
toried estate of a decedent is in dispute, the adjudication of the
title belongs to common-law tribunals; a probate court cannot con-
clude the question.
On September 28, 1885, Annie E. Partridge filed an
affidavit and petition, the statements in each being the same,
viz. : That she was interested in the estate as one of the dis-
tributees thereof; that decedent at time of his death owned
and possessed certain bonds of the city of Sacramento, of the
face value of $25,300 (with interest), and of the actual value
of over fifty cents on the dollar; that upon information and
belief, the said bonds have, since decedent's death, been in
possession or under control of John Partridge, the agent of
the administrator in the matters of the estate; that on Sep-
tember 14, 1885, she made demand on the administrator
(Antoine Borel) to inventory said bonds as a part of said
estate, "and the said Borel informed affiant that he would
take no action, either for or against said estate, in the matter
of said demand." That said bonds are not mentioned or
included in the inventory of said estate on file. In response
to a citation issued, the administrator made answer on Octo-
ber 6, 1885, setting forth substantially that the decedent left
a will, which was duly admitted to probate, in and by which
decedent's brother, Patrick M. Partridge, was made the sole
legatee and devisee; that decedent left him surviving a son,
Louis G. Partridge, of the age of majority, who was the hus-
band of petitioner, Annie E. Partridge; that by reason of
a claim of the invalidity of the will set up by the son, nego-
tiations were entered into between the said son and the
aforesaid devisee, which resulted in an agreement whereby
the son withdrew his opposition to the will and consented to
its probate, in consideration that the devisee should assign
the son one-half of the decedent's estate; that the John Part-
ridge mentioned in Annie E. Partridge's petition is the son of
the devisee. Patrick M., and for many years prior to dece-
dent's death was employed by him in his business matters ; that
in course of the negotiations between the said Louis G. and
Patrick M., it became known that said John was in possession
of the bonds referred to in Annie E. Partridge's petition,
Prob. Dec, Vol. I — 14
210 Coffey's Probate Decisions, Vol. 1.
and that he claimed to be the owner of them; also that he
had a large claim against decedent for services performed;
that therefore, to effect a settlement of all matters of contro-
versy, it was agreed between John and Louis G. that upon
the admission of the decedent's will to probate John should
receive $1,500 from Louis Gr., and the latter should consent
that the said bonds were and should be considered as the
property of John and not of decedent's estate, and John
should waive all claims against the decedent's estate, and
against Louis G.
On October 17, 1885, the said administrator, Borel, filed
an amended answer to the aforesaid petition of Annie E.
Partridge, in which he set forth that the inventory of the
decedent's estate returned and filed by him contained all
the property of the estate coming to his knowledge or posses-
sion; that there was no other property except that returned
in the inventory; a denial that decedent owned the bonds
mentioned in the petition ; or that the bonds had ever been in
his (Borel's) possession, or under his control; or that John
Partridge had been his agent as administrator or otherwise.
Alleged, upon information and belief, that the bonds were
never the property of decedent, and never formed part of his
estate. The opinion below was delivered upon the hearing
of the order to show cause made upon the petition, and the
answers of the administrator.
T. Z. Blakeman, for applicant, A. E. Partridge.
E. S. Pillsbury, for John Partridge, claimant.
S. V. Smith, for A. Borel, administrator.
COFFEY, J. This is an application to compel the admin-
istrator to include in his inventory certain bonds — "Sacra-
mento County Bonds" — alleged to belong to the estate of
Peter G. Partridge, deceased. The administrator makes
response that the reason of his omission was and is that John
Partridge, nephew of deceased testator and son of Patrick
M. Partridge, the sole devisee and legatee under the will of
Peter G., asserted title to the lands, which title was recog-
nized by the disinherited only son of deceased testator, Louis
Estate of Partridge. 211
Partridge, now deceased, whose surviving widow is the mov-
ing part}' in this proceeding. The agreement between Louis
and John was in writing. There were only two persons in-
terested in the subject matter at that time, Louis, the disin-
herited child, and Patrick M., resident in Canada, who was
the universal devisee and legatee. Betw^een these two a
settlement was made outside of court, and without opposition
the will was admitted to probate. Thereafter the controversy
between Louis and John about the ownership of the bonds
was apparently adjusted. In this hearing the administrator
stood aside, as a "neutral" spectator, professing willingness
to submit to any order the court might make, after taking
testimony, as to the transaction between Louis and John.
John Partridge then came in, represented by special counsel,
and has undertaken to show that, inasmuch as he owned and
owns the bonds in question, the administrator cannot be
obliged to include them in the inventory. The administrator
cannot assume an attitude of neutrality. He must, under
the statute (Code Civ. Proc, sec. 1443 et seq.), make a true
inventory and appraisement of all the estate which has come
to his possession or knowledge, and he is accountable therefor.
If any portion of the estate is claimed by others, it seems
prudent to include this item in the list, with words or a
memorandum stating the asserted claim: Schouler's Execu-
tors and Administrators, sec. 233.
Without reference in any manner to the character of the
transaction between John Partridge and the deceased Louis,
it is clear that the administrator should have included the
disputed item in his inventory. The only reason why the
decision has been deferred is that the court was desirous of
placing the parties upon an equal footing in any litigation
as to the title in another tribunal. After a full and anxious
consideration of the whole matter, a consideration of the argu-
ments and briefs and review of the testimony, I am convinced
that the correct conclusion is that the administrator should
inventory these l)onds. Any other conclusion would, in my
judgment, be equivalent to assuming a jurisdiction which
this court sitting in probate may not exercise.
212 Coffey's Probate Decisions, Vol. 1.
A court of probate ought not, it would appear, to reject
an inventory, or order it modified, because it contains prop-
erty, the title to which is disputed: for to common-law tri-
bunals belongs the adjudication of the title, and the probate
court cannot conclude the question: Schouler's Executors and
Administrators, sec. 236; Gold's Case, Kirby (Conn.), 100
(see opinion on page 103).
Application granted.
When Dou"bt Arises as to Whether any Particular Piece or Arti-
cle of Property should be inventoried as a part of the estate of a
decedent, the court may institute an inquiry, and hear evidence to
ascertain the ownership of such property; not for the purpose finally
to determine the title, for that would exceed the jurisdiction of the
probate court, but to determine, prima facie, whether the property
belongs to the estate and should be inventoried. The investigation
involves the bona fides of the claimants and the faithfulness to his
trust of the executor or administrator; and the determination of
these questions may serve as a basis for compelling him to inventory
the property, or for removing him from office. But the adjudica-
tion of the court, or the recitals of the inventory, are not conclu-
sive in another forum of the decedent's ownership, either as against
third persons or against the executor or administrator: Estate of
Eathgeb, 125 Cal. 302, 57 Pac. 1010; Lamme v. Dodson, 4 Mont. 560,
2 Pac. 298; Estate of Bolander, 38 Or. 493, 63 Pac. 689; Estate of
Belt, 29 Wash. 535, 70 Pac. 74. The valuations given in the inven-
tory are not conclusive for any purpose: Estate of Hinckley, 58 Cal.
457, 516; Estate of Simmons, 43 Cal. 543.
Estate of JEAN PIERRE RICAUD, Deceased.
[No. 7,754, former Probate Court; decided November 7, 1883.]
A Legatee of a Specific Beciuest can Take Only Such Interest in
the property bequeathed as the testator had a right or power to dis-
pose of by will.
Where Property Specifically Bequeathed is Sold Under Order of
Court, the legatee is not entitled to the proceeds before distribution,
but the same must be held subject to administration.
An Executor can be Allowed Commissions only upon the amount
the estate accounted for by him; and he cannot be said to have
accounted for property as part of the estate of his testator, to which
it has judicially been determined that the estate has no title.
Estate of Ricaud. 213
Jean Pierre Ricaud died April 1, 1877, in San Francisco,
a resident thereof, and leaving estate therein.
He left a last will and testament, dated March 26, 1877,
in which Francois Larroche and Leon Auradou were named
as executors. Upon petition filed by them on April 6, 1877,
the will was admitted to probate, and they were appointed
executors thereof on April 26, 1877, and letters testamentary
were issued to them on April 28, 1877.
A part of the estate consisted of a saloon, which the dece-
dent bequeathed to his brother, Michael Ricaud.
On May 2, 1877, the executors, at the request of this legatee,
filed a petition praying for an order of sale of this saloon,
on the ground that its chief value consisted in its goodwill,
and that unless it could be kept open it would depreciate in
value and become worthless, and that its stock of wines and
liquors was diminishing by daily sales, and that they did
not feel authorized to expend the money of the estate in
replenishing it. An order of sale was accordingly made on
said day, and the saloon was thereafter sold, with the assent
of the legatee, for $2,000, and the sale confirmed by the court.
On August 30, 1878, the executors filed their first account,
from which it appeared that the saloon had been sold under
the order of court for $2,000, and the proceeds paid to the
legatee by the executors.
On September 13, 1878, ]\Iaria Ricaud, the widow of the
ilecedent, filed exceptions to this account, and contested this
])ayment to the legatee, on the ground that the same was unau-
thorized and illegal, but the question was reserved by the
court for future consideration, and the account, with the
exception of this item, settled.
On August 13, 1883, the executors filed their second
account, to which exception was again taken by the widow,
on the same ground.
The contestant also excepted to the amount claimed by
the executors as commissions, the facts in relation to which
matter are as follows: There was included in the inventory
and appraisement filed in the matter of the estate certain
real property valued at $7,500, and commissions were
claimed on this amount as part of the estate accounted for.
214 Coffey's Probate Decisions, Vol. 1.
From the account and report of the executors, it appeared
that a suit in ejectment had been commenced against the
decedent for this property in his lifetime, and that after trial
and appeal to the supreme court, subsequent!}' to the death of
the testator, the litigation terminated in a final judgment
against the estate, and the property was surrendered to the
successful parties.
The account was settled in accordance with the principles
laid down in the following opinion:
Jarboe & Harrison, attorneys for executors.
H. A. Powell and A. P. Needles, attorneys for widow.
COFFEY, J. 1. The claimant of the specific legacy (the
saloon) can take only such interest in the property as the
testator had a right or power to dispose of by will. It
follows, therefore, that the proceeds of the sale of the saloon,
to-wit, $2,000, should be retired from the account and held
subject to distribution, to be disposed of by the court
according to the circumstances at such time existing.
2. Commissions can only be allowed, according to the statute,
"upon the amount of estate accounted for" by the executor.
He cannot be said, in the sense of the statute, to have
accounted for estate to which it has been determined the
estate had no title, which it appears never belonged to the
estate, and is not returned or accounted for in this account.
The Principal Case was Affirmed by the supreme court of Califor-
nia in Estate of Eicaud, 70 Cal. 69, 11 Pac. 471, holding that an
executor cannot claim commissions on real estate involved in litiga-
tion that ultimately results in a decision adverse to the estate. To
the same effect is Estate of Delaney, 110 Cal. 563, 42 Pac. 981. Com-
missions are allowable, as a rule, upon all the property which comes
into the possession of the executor or administrator and for which
he is accountable, but upon no other: Estate of Simmons, 43 Cal.
543; Estate of Isaacs, 30 Cal. 106; Blackenburg v. Jordan, 86 Cal.
171. 24 Pac. 1061.
Estate of Riddle. 215
Estate of JAMES L. RIDDLE, Deceased.
[No. 1,209; decided April 27, 18S5.]
Letters of Administration — Who may Apply for. — The person to
whom letters of administration are issued must apply by his own
petition, signed by himself or his counsel; a petition by an heir
for the appointment of another person is insuificient, and an order
appointing an administrator on such petition must fall. Such pe-
tition is in effect no petition, and is not subject to amendment.
Administrator's Sale. — The Court Should Require an Additional Bond
from the administrator upon ordering the sale of any real property be-
longing to the estate.
James L. Riddle died in Santa Clara county, in this state,
but being a resident of San Francisco, and leaving estate
therein, on October 8, 1881.
He left a will, bearing date February 2, 1881, in which
Channing G. Fenner was named as executor.
On petition filed by Mr. Fenner, on October 13, 1881, the
will was admitted to probate, he appointed executor thereof,
and letters testamentary thereon issued to him, on October
■28, 1881.
The executor died on April 22, 1883, while still acting as
such.
On May 26, 1883, Grace L. Riddle, a daughter of the
testator, filed a petition signed by Samuel H. Dwinelle, as
her attorney, and verified by her, setting forth the facts, and
praying for the appointment of David IMcClure as adminis-
trator of the estate with the will annexed.
On June 8, 1883, an order was made as prayed for by the
petitioner appointing Mr. McClure, and on August 13, 1883,
letters of administration with the will annexed were issued
to him.
On December 17, 1884, Mr. McClure filed a petition for
an order to sell certain real property belonging to the estate,
and on January 28, 1885, an order of sale was made accord-
ingly.
A sale was had pursuant to such order, and on April 8,
1885, Mr. McClure filed his return and account of sales,
together with a petition for the confirmation thereof.
216 Coffey's Pkobate Decisions, Vol. 1.
On April 23, 1885, a purchaser (J. C. Johnson) filed
written objections to such confirmation, on the ground that
the sale was not legally made, in this:
1. That no petition in writing had ever been filed by
David McClure, signed by him or by his counsel, for his
appointment as administrator.
2. That there was no administrator of the estate, and that
the sale was without authority.
3. That no bond was required in the order of sale, or ever
given by Mr. McClure upon the sale, and that his original
bond was only $3,500, while the amount bid for the property
was $32,500.
The facts w^ere correctly stated in the grounds of contest.
Proceedings de novo were accordingly commenced, and new
letters issued to David McClure May 29, 1885.
F. J. French, attorney for objecting purchaser.
S. H. Dwindle, for administrator cum test. ann.
COFFEY, J. 1. There is no petition on file here signed by
David McClure or by his counsel. Grace Riddle 's application
that David McClure be appointed is not sufficient, as the
person to whom letters are issued must apply by his own
petition, signed by himself or his counsel: Code Civ. Proc,
sees. 1371, 1374. -
The order of June 8, 1883, had no proper basis as required
by the foregoing cited sections, and it must fall.
2. An additional bond should have been provided for in
the order of sale of the real estate : Code Civ. Proc, see. 1389.
The objections to the confirmation of the sale are sustained ;
they cannot now be cured by amendment ; there being no-
petition, there is nothing to amend.
Estate of Tate. 217
Estate of ROBERT N. TATE, Deceased.
[No. 5,084; decided February 24, 1887.]
Homestead. — A Widow Without Minor Children is Entitled to have
a homestead selected and set apart by the court out of decedent's
separate estate, there being no community property.
Homestead. — The Court must Set Apart a Homestead upon the ap-
plication of a widow, if none has been selected in the lifetime of
the deceased spouse. There is no discretion in the matter.
The Right of the Surviving Spouse to a Homestead in separate es-
tate of the decedent is limited to an estate for years, for life, or until
the happening of some event, as the marriage of the survivor, as may
be decreed by the court. But the exercise of the court's power is lim-
ited by a sound discretion acting upon the circumstances of the
particular case; if the survivor is young and likely to remarry, a
limitation for life might be indiscreet, otherwise where she is of an
advanced age.
Homestead. — The Purpose of the Statute in Giving a Homestead
right to the surviving spouse out of the decedent 's separate estate
is to provide a home for the survivor, which no one can touch; merely
depriving the survivor of the power of alienation.
J. A. Hosmer, for applicant, Margaret E. Tate.
W. C. Burnett, opposed.
COFFEY, J. This is an application by Margaret E. Tate,
surviving widow of Robert N. Tate, deceased, for an order
of court setting apart to her absolutely, as and for a home-
stead, a certain piece of real property mentioned in the estate
of said deceased, situated on Post street, between Broderick
and Baker, particularly described in her petition, with the
dwelling and improvements thereon. This property is
appraised at the aggregate value of $4,550. The petitioner
claims the same as community property, and by virtue of
having a homestead declared thereon in the lifetime of said
Robert N. Tate, which declaration of homestead compljang
substantially with the provisions of the Civil Code of this
state, was recorded on the first day of May, 1883, in tlie
recorder's office of the city and county of San Francisco.
The application is contested by a daughter of said deceased,
on the ground that i1 was not community property, but the
218 Coffey's Probate Decisions, Vol. 1.
separate property of the deceased, Robert N. Tate, and on
the further ground that being separate property the widow,
having no children by the deceased, is not entitled to a
homestead out of his separate estate.
After a patient hearing of the case in open court, and
a careful reading and examination of the able briefs pre-
sented by the respective counsel, and of the documentary
evidence of a very voluminous character which was submitted
to the court, I am unable to come to the conclusion that it
was community property. Upon the whole, after a complete
survey of the situation of the parties, and of the history of
the accumulations of the deceased, I am of the opinion that
the property was his separate estate. This being the court's
deduction from the facts as presented by the evidence, the
remaining question is, whether a widow without minor
children is entitled to have a homestead set apart to her out
of the separate estate of her deceased husband.
This question has been decided in this court in the Estate
of Richard T. Maxwell, Deceased, No. 2,625 [ante, p. 126],
in an application in a proceeding wherein Elena Maxwell,
the widow, applied for an order setting aside a homestead
out of the separate estate, the fact being that there were
no minor children. The counsel who participated in the
argument of that case were T. I. Bergin, Esq., for the appli-
cant; Daniel Rogers, Esq., for the executors in opposition;
and A. F. Morrison, Esq., for a legatee, also in opposition.
Each and all of these counsel argued the point involved in
the application elaborately^ and thoroughly covering the entire
ground, so that the court has, in addition to the advantage
of the argument in this present proceeding, the benefit of
former argument and of its own examination, and the court
has seen no reason to recede from its ruling in that case.
This court must, upon proper application, set apart to the
widow a homestead, if none has been selected in the lifetime
of the deceased. The court has no discretion to deny the
application : Estate of Ballentine, 45 Cal. 699 ; Estate of
McCauley, 50 Cal. 546 ; Mawson v. Mawson, 50 Cal. 539.
In the present case the application is founded upon a
statutory declaration of homestead, which, operating upon
Estate op Tate. 219
(separate) property appraised at not more than $5,000, should
be the subject matter of the court's decree. The power of
the court is limited by a sound discretion acting upon the
circumstances of the particular case. The fee passes to the
heirs, in this case the petitioner and the applicant, in equal
shares, with a limited estate as a homestead in the surviving
widow, which would be for years, for life, or until the
happening of some event, as the marriage of the widow. As
the counsel for the applicant says, the purpose of the statute
undoubtedly is to provide a home for the widow which no
one can touch, depriving her of the power of alienation
merely.
It does not impair or diminish the^ right of the widow
that there be no minor childen. The homestead is to be set
apart to the survivor. It is immaterial that the petition be
on behalf of the widow alone. It could not here be otherwise.
Her status is that of the "surviving widow": Sec. 1465
(Amdt. 1881) ; Estate of Lord, 2 W. C. R. 131 (Lord v.
Lord, 65 Cal. 84, 3 Pac. 96).
If the petitioner were young, and likely to remarry and
obtain a home and support by that act, a limitation for life
might be indiscreet, but considering her age — she is now
sixty-two — her domestic condition, and the probability that
the condition will not be modified by marriage, the court is
of opinion that she is entitled to have a homestead set apart
for life, and it is so ordered. Let an order be drawn accord-
ingly.
The Principal Case affirms the decision in Estate of Maxwell, ante,
p. 126. The duty of the court to set apart a probate homestead
when a proper application therefor is made is imperative. It has
no discretion to refuse the application, but must grant it, for the
words "may set apart," as employed in the statute, are construed
"must set apart": Demartin v. Demartin, 85 Cal. 71, 24 Pac. 594;
Tyrrell v. Baldwin, 78 Cal. 470, 21 Pac. 116; Estate of Burton, 63
Cal. 36; Ballentine's Estate, 45 Cal. 696; Estate of Walley, 11 Nev.
260; Estate of Syndegaard, 31 Utah, 490, 88 Pac. 616. In case
there are no. children the surviving spouse, nevertheless, has a right
to a homestead: Estate of Armstrong, 80 Cal. 71, 22 Pac. 79; Kearney
V. Kearney, 72 Cal. 591, 15 Pac. 769.
220 Coffey's Probate Decisions, Vol. 1.
When a Probate Homestead is Selected from the separate estate
of the decedent, the court can set it apart for a limited period only.
The remainder in fee vests in the heirs, even to the exclusion of
devisees named in the will. They take a vested estate, which may be
aliened by them voluntarily or by judicial sale. Only the homestead
is exempt; their interest in the property is subject to the claims of
creditors of the decedent, and may be ordered sold to pay a family
allowance made to the widow: Estate of Tittel, 139 Cal. 149, 72 Pac.
909; McHarry v. Stewart (Cal.), 35 Pae. 141; Lord v. Lord, 65 Cal.
84, 3 Pac. 96; Estate of Schmidt, 94 Cal. 334, 29 Pac. 714.
Estate of JEAN PIERRE RICAIJD, Deceased (No. 2).
[No. 7,754 former Probate Court; decided February 5, 1887.]
The Widow can Claim to Own an Undivided Half Only of Such
Property as is distributed in kind. If she receive one-half of the
community property, her right as survivor is satisfied.
Executors are Entitled to have the Costs of an Appeal Allowed them
in their account, the prosecution of which is necessary to obtain a
final determination of their rights in relation to commissions.
On October 20, 1885, Maria Ricaud, widow of the above-
named decedent, died intestate, and A. P. Needles was
thereafter appointed administrator of her estate.
On August 2, 1886, the administrator filed a petition for
distribution herein.
Decedent herein, by his will, left the sum of $5,000 to
his Avidow, and the sum of $2,000 to her daughter by a
previous marriage.
Before distribution herein this daughter also died, and
Selden S. Wright was appointed administrator of her estate.
On September 8, 1886, the executors tiled a supplemental
account, containing a charge of $45.10 for costs expended
on appeal (affirmed against them, 70 Cal. 69, 11 Pac. 471)
from an order made by the court, refusing to allow them
commissions on property inventoried as part of the estate,
but afterward judicially determined not to belong to it (see
Estate of Ricaud, ante, p. 212).
Estate of Ricaud. 221
This item was objected to by the administrator of the
widow, as arising out of an appeal taken by the executors
for their exclusive benefit.
The estate left by decedent was community property.
The executors had, under order of court, sold a saloon for
$2,000, which had been specifically bequeathed by the tes-
tator to his brother, Michael Ricaud, and the executors had
paid said legatee the full proceeds.
The administrator of the widow now claimed that as this
saloon was community property the testator could only be-
queath one-half of it, and that the legatee was only entitled
to one-half the proceeds.
The contention of the executors was that the widow had
already received more than one-half of the estate in money
on partial distribution, and that the bequest by the hus-
band of a specific piece of his estate does not make the
legatee a cotenant with the widow; that "the widow has the
right to claim any other portion equal in value to that which
the husband has given, but has not the right to claim the
half of the specific piece, so long as she receives the half of
the entire estate."
They further maintained that even if, as claimed by
counsel for contestants, the widow is entitled to an un-
divided one-half of all the community property, this is only
the rule when the property is distributed in kind, and that
it cannot be the rule when the property, or the bulk thereof,
is converted into money, and the widow receives, in money,
one-half of the whole estate as its money value.
"If the entire estate is converted into money, all that the
widow can receive is one-half of the money. She cannot,
after having received that one-half, claim that she is en-
titled to a portion of the very estate or its proceeds, out of
which the money received by her was realized."
Jarboe & Harrison, for executors.
H. A. Powell and A. P. Needles, for administrator of
widow.
Selden S. and Geo. T.' Wright, for administrator of wid-
ow's daughter.
222 Coffey's Probate Decisions, Vol. 1.
COFFEY, J. The final brief in this matter was filed
November 29, 1886, which should be considered the date of
actual submission of the controversy.
1. The theory of the contestants' counsel does not fit the
facts in this case. If I correctly apprehend the respective
arguments of counsel, the position assumed by the executors
is the true legal one. "The widow can claim to own an
undivided half only of such property as is distributed in
kind, and then only after distribution." If she have re-
ceived one-half of the community property her right as sur-
vivor is satisfied.
Exception and objection denied and overruled.
2. The prosecution of the appeal seems to have been
necessary to obtain a final judicial determination of the
rights and duties of the executors.
Exception and objection denied and overruled. Account
allowed.
Estate of HANNAH G. INGRAM, Deceased.
[No. 4,993; decided December 13, 1886.]
Will. — Every Person Over the Age of Eighteen Years, of Sound
Mind, may, by last will, dispose of all his estate remaining after
payment of his debts.
Will. — A Person is of Sound and Disposing Mind who is in the pos-
session of all the natural mental faculties of man, free from de-
lusion, and capable of rationally thinking, reasoning, acting and de-
termining for himself. A sound mind is one wholly free from de-
lusion. Weak minds differ from strong minds only in the extent
and power of their faculties; unless they betray symptoms of de-
lusion their soundness cannot be questioned.
Will — Delusion. — It is not the Strength of a Mind which deter-
mines its freedom from delusion; it is its soundness.
Will — Delusion of Mind is a Species of Insanity. — The main char-
acter of insanity, in a legal view, is the existence of a delusion.
Will. — A Person is the Victim of Delusion when he pertinaciously
believes something to exist which does not. Belief of things which
are entirely without foundation in fact is insane delusion; that is,
where things exist only in the imagination of a person, and the non-
Estate of Ingram. 223
existence of which neither argument nor proof can establish in his
mind.
Will. — If a Person is Under a Delusion, though there is but Partial
Insanity, yet if it is in relation to the act in question, it will defeat
a will which is the direct offspring of that partial insanity.
Will. — Belief Based on Evidence, However Slight, is not Delusion;
delusion rests upon no evidence whatever; it is based on mere sur-
mise. The burden of proof is upon the party alleging insanity or
insane delusion.
Will. — A Will Produced by Undue Influence cannot stand.
Will. — Undue Influence is any Kind of Influence, either through
fear, coercion, or importunity, by which the testator is prevented
from expressing his true mind. It must be an influence adequate to
control the free agency of the testator. If a weak-minded person
is importuned to such an extent that he has not sufficient strength
of mind to determine for himself, so that the proposed script ex-
presses the views and wishes of the person importuning, rather than
his own, and is not his free and unconstrained act, it is not his will.
Undue influence, or supremacy of one mind over another, is such as
prevents that other from acting according to his own wish or judg-
ment.
Will — Undue Influence. — Neither Advice, Argument, nor Persuasion
will vitiate a will made freely and from conviction, though such
will might not have been made but for such advice and persuasion.
Neither does undue influence arise from the influence of gratitude,
affection or esteem.
Will. — If the Testator has Sufficient Memory and Intelligence fairly
and rationally to comprehend the effect of what he is doing, to ap-
preciate his relations to the natural objects of his bounty, and un-
derstand the character and effect of the provisions of his will; if he
has a reasonable understanding of the nature of the property he
wishes to dispose of, and of the persons to whom and the manner in
which he wishes to distribute it, and so express himself, his will is
good. It is not necessary that he should act without prompting.
Will. — Undue Influence may be Defined as that which compels the
testator to do that which is against his will, through fear or a de-
sire of peace, or some feeling which he is unable to resist, and but
for which the will would not be made as it is, although the testator
may know what he is about when he makes the will, and may have
sufficient capacity to make it.
Will. — What would be an Undue Influence on One Man might be
no influence at all on another. This depends upon the capacity, in
other respects, of the testator.
WiU. — Undue Influence must be an Influence Exercised in Relation
to the will itself, and not in relation to other matters or transactions.
224 Coffey's Probate Decisions, Vol. 1.
But it need not be shown to have been actually exercised at the point
of time that the will was executed.
Will. — Undue Influence cannot be Presumed, but must be Proved,
and the burden of proving it lies on the party alleging it. Such
evidence must often be indirect and circumstantial, for undue in-
fluence can rarely be proved by direct and positive testimony. The
circumstances to be considered, stated,
Will — Insane Delusion — Undue Influence. — The Evidence in this
Case reviewed at length and the conclusion reached, that the testa-
trix was the victim of an insane delusion, of which the instrument
propounded was the offspring, and that the testatrix was unduly in-
fluenced to make the will in favor of proponent.
Geo. H. Perry and W. W. Bishop, for contestant, John
W. Ingram, husband of testatrix.
J. M. Seawell, for contestants, Samuel F. Clough and
others, nephews and nieces of testatrix.
Selden S. Wright and E. Thompson, for proponent, Jun-
ius L. Hatch.
COFFEY, J. On February 6, 1886, a petition was filed
by Junius L. Hatch in this court, praying for the admission
to probate of a certain document purporting to be the will
of Hannah G. Ingram, deceased, which petition set forth
that Hannah G. Ingram died on the 1st of February, 1886,
in this city and county, where she was at that date a resi-
dent, leaving a last will and testament in the possession of
Junius L. Hatch, who was named therein as executor and
principal devisee and legatee, the others being Samuel F.
Clough, James A. Clough, Olympia Wilson, Lillie D. Hatch
and John W. Ingram. That the next of kin of the testatrix
and heirs at law were said John W. Ingram, the husband of
decedent, residing at San Francisco, Samuel F. Clough,
James A. Clough, nephews, all residing in this state.
That at the time said will was executed, February 13,
1885, the testatrix was of the age of fifty-two, and other-
wise competent to make a will. The will is in the hand-
writing of the proponent, signed by the testatrix, and attested
by the subscribing witnesses, according to the statute in such
case made and provided, and the petitioner further prays
that letters testamentary be issued to him.
Estate of Ingram. 225
The will provides (1) that all the just debts and funeral
expenses be paid; (2) the testatrix gives to her husband.
John W. Ingram, the sum of $5; (3) to her nephew, Samuel
F. Clough, $5; (4) to her nephew, James A. Clough, $5;
(5) to Mrs. Olympia Wilson, of Farback, Germany, form-
erly France, the sum of $10 per month, to be paid monthly
out of her estate by her executor during the legatee's nat-
ural life; (6) she gives to Lillie D. Hatch, the daughter of
said J. L. Hatch, executor, all her personal property, con-
sisting of clothing, books, pictures, jewelry, etc.; (7) she
directs that an appropriate monument be erected by her
executor to her first husband John Dominic Wilson, and
herself, in her lot in the Odd Fellows' Cemetery, of such
cost and character as her executor may approve, to be paid
for out of her estate; (8) she gives, devises and bequeathes
to Junius L. Hatch, journalist, now of San Francisco, her
house and lot No. 1724 Hyde street, including the cottage
in the rear, No. 1235 Vallejo street, and she also makes the
.said Junius L. Hatch her residuary legatee, and finally nom-
inates the said Junius L. Hatch the executor of her will
without bonds.
The will purports to have been executed on the 13th of
February, 1885, in the presence of Amanda Arnold and
Algernon Hopkins.
On February 16, 1886, J. W. Ingram filed an opposition
to the admission of this instrument to probate, on the
grounds, first, that he was the husband of the deceased at
the time of her death, having been married to her on the
thirtieth day of July, 1884; that at the time of her death
she possessed real estate and personal property of about
$15,000 in value, and that at the time the said Hannah G.
Ingram executed the said will she was not of sound and
disposing mind, and was not competent to execute the said
will by reason of her unsoundness of mind, and that, at
that time, her signature was obtained by means of threats
made by one Hatch, the person named in said instrument as
the residuary legatee; further, that in order to obtain said
signature, said Hatch falsely and fraudulently, and with
intent to deceive said Hannah G. Ingram, and to prejudice
^nd defraud the opponent, represented to said Hannah G.
Prob. Dec, Vol. I — 15
226 Coffey's Probate Decisions, Vol. 1.
Ingram that he, the opponent and husband of decedent, was
unfaithful to his marriage vows, and that he was an idle and
dissolute person; and the petitioner further alleged that the
said Hannah G. Ingram believed the said false and fraudu-
lent representations of said Hatch to be true; and further,
the opponent alleged that from the date of the execution of
the said purported will up to the time of the death of the
said Hannah G. Ingram, the said Hatch falsely and fraudu-
lently and with intent to unduly influence the mind of said
Hannah G. Ingram, and with intent to weaken and destroy
the love and affection borne by the said Hannah G. Ingram
toward the opponent, her husband, continued to represent
and declare that the opponent was associating with lewd
women and was unfaithful and untrustworthy, and was not
a fit and proper person to associate and live with said dece-
dent, and was not a fit and proper person to whom the prop-
erty and estate of said decedent should be bequeathed; and
further, opponent alleged that said deceased was influenced
by false and fraudulent representations of said Hatch, and.
believing them to be true, forced the opponent, her hus-
band, to leave said deceased, and the said Hatch caused said
deceased to remain away from opponent, her husband, and
to conceal her whereabouts from opponent, her husband, and
at the time of the death of the said Hannah G. Ingram, and
for a long time prior thereto, the whereabouts of said de-
ceased w^ere unknown to opponent, her husband, and said
deceased so conducted herself, owing to the representations
and influence of said Hatch, as hereinbefore set forth. The
opponent therefore prayed that the probate of the purported
will be denied, and that he be appointed administrator of
the estate of said Hannah G. Ingram.
On February 25, 1886, Samuel F. Clough, James A.
Clough, Lulu B_ Clough and Albatena M. Weaver filed an
opposition on their own behalf, alleging that they are the
next of kin and heirs at law of Hannah G. Ingram, de-
ceased, being her nephews and nieces, and alleging as
grounds of opposition all of the statutory causes, the issue
of undue influence being tendered in these words :
"That said alleged will and testament was procured to be
made by said Junius L. Hatch by undue influence exerted
Estate of Ingram. 227
by him upon said Hannah G. Ingram, as follows, to wit :
'That said Hannah G. Ingram, prior to and at the time of
making said alleged will and testament, was of unsound
mind ; that prior to and at the time of the making of said
alleged will and testament, the said Junius L. Hatch, with
the sole intent and design of procuring said Hannah G. In-
gram to make said alleged will and testament, had professed
great friendship for said Hannah G. Ingram, and by divers
acts and practices unknown to these contestants acquired
an ascendency, influence and control over said Hannah G.
Ingram, and over her mind and will ; that prior to and at
the time of making said alleged will and testament, said
Junius L. Hatch importuned her to make and execute the
same, and himself wrote the same and presented the same to
her and urged and importuned her to sign the same; and
that owing to her said condition of mind and the influence
and control which he, said Junius L. Hatch, had over her,
she, the said Hannah G. Ingram, was unable to resist the
said importunity of said Junius L. Hatch, and signed said
alleged will and instrument.' "
To both and to each of these contests or oppositions
answer was made by Junius L. Hatch, the proponent of
the will, specifically denying all the allegations of the re-
spective oppositions or contests, and the issues thus joined
came up for trial before the court, a jury having been ex-
pressly waived in open court, on September 29, 1886. and
it was consented in open court that the two contests be con-
solidated for the purposes of the trial.
The issues to which response must be made are reduced
by the evidence to two: insanity and undue influence.
(1) Was the testatrix the victim of an insane delusion,
and was this will the product of that delusion?
(2) Was the testatrix unduly influenced by Dr. Hatch
to make this will?
As to the first of these questions — Was there an insane
delusion, and was this will the product of that delusion? —
we must first settle what constitutes an insane delusion ac-
cording to the law, and the decisions of the courts declaring
the law; and this is included within the general question as
to mental competency.
228 Coffey's Probate Decisions, Vol. 1.
The law of our state provides that every person over the
age of eighteen years, of sound mind, may, by last will, dis-
pose of all Ms estate, real and personal, chargeable, however,
with the payment of all his debts: Civ. Code, sec. 1270.
A person is of sound and disposing mind who is in the
possession of all the natural mental faculties of man, free
from delusion, and capable of rationally thinking, reasoning,
acting and determining for himself. A sound mind is one
wholly free from delusion. Weak minds differ from strong
minds only in the extent and power of their faculties; un-
less they betray symptoms of delusion their soundness can-
not be questioned. It is not the strength of a mind which
determines its freedom from delusion, it is its soundness.
Thus, it is often said that such or such a distinguished man
has a sound mind; yet a man in the plainer walks of life,
of faculties of less extent or power, may be equally sound.
The latter is of sound mind equally with the former, if free
from delusions. Delusion of mind is to an extent insanity
The main character of insanity, in a legal view, is said to
be the existence of a delusion, that is, that a person should
pertinaciously believe something to exist which does not
exist, and that he should act upon that belief. Belief of
things which are entirely without foundation in fact, and
which no sane person would believe, is insane delusion; that
is, when a person believes things to exist only, or at least
in that degree only, in his own imagination, and of the
nonexistence of which neither argument nor proof can con-
vince him, that person is of unsound mind. If he be under
a delusion, though there be but partial insanity, yet if it be
in relation to the act in question, it will defeat a will which
is the direct offspring of that partial insanity. Thus, in
one case, where the testator conceived the groundless delu-
sion that his nephew had conspired to effect his death, the
will was set aside. On the other hand, in Clapp v. Fuller-
ton, 34 N. Y. 190, 90 Am. Dec. 681, it was held that the
will could not be rejected on the ground that the testator
entertained the idea that one of his daughters was illegiti-
mate, if this belief was not founded on insane delusion, but
upon slight and insufficient evidence acting upon a jealous
and suspicious mind. Belief based on evidence, however
Estate of Ingram. 229
slight, is not delusion. One person, from extreme caution
or from a naturally doubtful frame of mind, will require
proof before acting, amounting, perhaps, to demonstration;
while another, of different faculties but of equally sound
mind, will act upon very slight evidence. Delusion rests
upon no evidence whatever; it is based on mere surmise:
Estate of Tittel, Myr. 12 ; Estate of Black, Myr. 24.
To apply these general principles to the case in hand:
If Mrs. Ingram believed that her husband, John W. Ingram,
was unfaithful to her, and if the belief of his infidelity was
entirely without foundation in fact ; if the belief was the
product of her own imagination ; and if the paper here pro-
pounded as her will was made under such belief; and if she
was influenced and controlled by such belief in making it,
then she was not of sound mind, but was under a delusion,
and the paper, so far, is not her will.
Did any fact exist which could cause a sane mind to be-
lieve that such was the case? If any fact did so exist,
she was not laboring under a delusion regarding the same.
If any fact existed, and was known to her, upon which she
could base such a suspicion of her husband's fidelity, she
was not laboring under a delusion respecting the same. A
person may act upon weak testimony, yet be under no de-
lusion. If the court finds that no fact existed upon which
a sane mind would form such a belief as is imputed to the
testatrix, then she was under an insane delusion, and the
court is bound to find that this is not a valid will.
John W. Ingram, one of the contestants, when about
twenty-six years of age, intermarried with the widow Wil-
son, July 30, 1884, she being about forty years his senior,
or say sixty-five years of age. He had been brought up
from about his tenth year by herself and her former hus-
band, John D. Wilson, who had practically, but not statu-
torily, adopted him as their son. She had a considerable
property, and it is in testimony that one reason why she
married her adopted son was to secure to him firmly his
rights of property. She appears to have had more than
a mother's fondness for him, since it appears in evidence
she was intensely jealous of him, a jealousy apparently more
conjugal than maternal. Why she should have been ap-
230 Coffey's Probate Decisions, Vol. 1.
prehensive that he would attract more than ordinary in-
terest, or inspire unusual affection in the heart of other
women, is not clear to the mind of the court, which must
depend upon normal conditions for its conclusions. Prior
to Ingram's marriage to the deceased, it appears he had
suffered a brief experience of like character with a lady,
from whom, after six weeks of cohabitation, he had been
divorced upon his own application upon the ground of ex-
treme cruelty.
Ingram was a plumber by trade, and seems to have pur-
sued his calling with reasonable diligence; in his work it
appears he was often embarrassed by the attentions of his
wife, the testatrix, who followed him about, and by her un-
usual conduct annoyed his fellow-workmen ; one of his em- .
ployers testified that he was a nice, quiet man, but the em-
ployer was compelled to discharge him several times, be-
cause Mrs. Ingram was in the habit of coming around and
bothering her husband on account of a "Spanish woman,"
whom she imagined to be after him. Upon this subject of
this "Spanish woman" the case as to insane delusion rests.
All the witnesses testify that, while upon the other subjects
she acted in a fairly rational manner, she labored under
hallucinations, fixed false ideas (testimony of Ilollwege and
others) as to the "Spanish woman"; she never tired of this
topic; and the almost uniform testimony is that she was
not in her right mind on the question of the "Spanish wo-
man."
See testimony of P. R. O'Brien, James Watson, Andrew
T. Field, J. H. Williams, Thomas O'Brien, Mrs. Stangen-
berger. Lottie M. Golden, INIrs. Letitia Ralph, Patrick Lee,
Charles C. Levy, W. H. Allen, George Dixon, Joseph Buck-
ley, Andrew McKinnon, Officer T. A. McKinnon, E. M.
Gallagher, William G. Thomas, John Evans, Benjamin
Davis, Guillaume Abadie, Mrs. Ida Carpenter, John W,
Shields, George H. Perry, Dr. S. S. Stambaugh, Miss Fran-
ces Pratt (the "Spanish woman"), and her mother, Mrs.
Josephine Pratt.
The burden of proof is upon the party alleging insanity
or insane delusion. The reports have rarely furnished a
case in which the weight of evidence is stronger in favor
Estate of IngRxVM. 231
of such an allegation than the one here presented. That
the testatrix was under an insane delusion with regard to
the "Spanish woman," which delusion controlled her in
disposing of her property, and that that delusion was fos-
tered by Dr. Hatch, I have no manner of doubt. It seems
to me impossible to go through the evidence, upon a re-
examination, without reaffirming the conviction that I sug-
gested when the case was submitted, that the testatrix was
the victim of an insane delusion, of which the instrument
here propounded was the offspring. There is not an atom
of evidence that her husband was unfaithful, not an iota of
testimony that the young woman, Miss Pratt, the "Span-
ish woman," was the cause of the jealousy of the decedent,
and, as all the counsel conceded at the trial, there is the
highest degree of improbability that she should have been
the active cause of provoking the jealousy with regard to
Ingram ; moreover it does appear, without contradiction,
that she was a total stranger to all the parties concerned,
and an innocent victim of a most extraordinary persecu-
tion. The deceased testatrix had absolutely nothing upon
which to base her suspicion of the infidelity of her husband,
and of the complicity of Miss Pratt, and the testimony of
I\Irs. Humphreys weighs not even a feather in the scale
against the overwhelming evidence to the contrary; there
is not, as counsel for proponent insists, in favor of this
theory, even one of those
"Trifles ligbt as air, which
Are, to the jealous, confirmation strong
As proofs of holy writ."
— Othello, Act III, Scene 3.
There was every reason, in the natural order, why In-
gram should have been the object of her bounty. The
testimony of most of the witnesses, disinterested and un-
impeached, was to the effect that she had contracted this
otherwise incongruous and unnatural alliance in order to
secure to her and her deceased husband's adopted child
"hi.s rights of property." (See testimony, uncontradicted,
of witnesses for contestant.) Amid all her vagaries and
eccentricities there stood out, in clear lines, affection for
this young man; nothing but the wholly imaginary "Span-
232 Coffey's Probate Decisions, Vol. 1.
ish woman" interfered with her intention to make him the
beneficiary of her bounty, and it would be a "judicial out-
rage," as intimated by one of the counsel, to defeat that
marital purpose. The "Spanish woman" was a myth, a
sheer delusion, a creature of diseased imagination, now, in
the light of legal evidence, entirely dissipated.
2. Was the testatrix unduly influenced to make this will?
A will produced by undue influence cannot stand. Un-
due influence is any kind of influence, either through fear,
coercion or importunity, by which the testator is prevented
from expressing his true mind. A question of this kind is
not likely to arise, except in regard to persons of naturally
weak, mind or facile disposition, or where such has become
their condition, either from age or disease. It must, of
course, be an influence adequate to control the free agency
of a testator. It is very properly said: "A testator should
enjoy full liberty and freedom in making his will, and pos-
sess the power to withstand all contradiction and control.
That degree, therefore, of importunity or undue influence
which deprives the testator of his free agency, which is such
as he is too weak to resist, and will render the instrument
not his free and unconstrained act, is sufficient to invalidate
it."
I have a legal right to ask of a person making his will,
that he direct his property to go in any given channel, I
may even urge and importune him, and if he has sufficient
strength of mind to determine for himself the will is good^
even though he adopt my suggestion ; but if I ask or im-
portune a weak mind, one exhausted by disease or otherwise,
to such an extent that he do not have sufficient strength of
mind to determine for himself, so that the proposed script
expresses my views and wishes rather than his own, it is
not his will. If the testatrix had sufficient memory and in-
telligence to fairly and rationally comprehend the effect of
whp,t she was doing, to appreciate her relations to the nat-
ural objects of her bounty, and understand the character
and effect of the provisions of the will; if she had a reason-
able understanding of the nature of the property she wished
to dispose of, and of the persons to whom, and the manner in
which she wished to distribute it, and did so express her-
Estate of Ingram. 233
self, it is good. It is not necessary that she should have
acted without prompting. Importunity or influence, to have
the effect of invalidating a will, must be in such a degree
as to take away her free agency.
The question here is, whether at the time of executing this
will Hannah G. Ingram was free to do as she pleased, or
whether she was then so far under the influence of Junius
L. Hatch that the will is not the act and will of Hannah G.
Ingram, but is the will of Junius L. Hatch.
Undue influence has been defined by our code (Civ. Code,
1575) to consist:
1. In the use, by one in whom confidence is reposed by
another, or who holds a real or apparent authority over him,
of such confidence or authority for the purpose of obtaining
an unfair advantage over him.
2. In taking an unfair advantage of another's weakness
of mind; or,
3. In taking a grossly oppressive and unfair advantage
of another's necessities or distress.
On this point evidence must often be indirect and circum-
stantial. Naturally, persons who intend to control the actions
of another, especially in the matter of the execution of wills,
do not proclaim that intent. Very seldom does it occur
that a direct act of influence is patent. The existence of
influence must generally be gathered from circumstances,
such as whether the testatrix had formerly intended a differ-
ent disposition of her property ; whether she was surrounded
by those having an object to accomplish to the exclusion of
others; whether she was of such weak mind as to be subject
to influence; whether the paper offered as a will is such a
paper as would probably be urged upon her by the persons
surrounding her; w^hether they are benefited thereby to the
exclusion of formerly intended beneficiaries.
Undue influence can rarely be proved by direct and posi-
tive testimony. It may be inferred from the nature of the
transaction, from the true state of the affections of the tes-
tatrix, from groundless suspicions against members of her
family, if any such have been proved, and from all the sur-
rounding circumstances.
234 Coffey ^s Probate Decisions, Vol. 1.
Undue influence may be defined to be that kind of influence
or supremacy of one mind over another by which that other
is prevented from acting- according to his own wish or
judgment. A testator should enjoy full liberty and freedom
in making his will and possess the power to withstand all
contradiction and control.
That degree, therefore, of importunity or influence which
deprives the testator of his free agency, which is such as
he is too weak to resist, and which renders the instrument
not his free and unrestrained act, is sufficient to invalidate it.
It is only that degree of influence which deprives the tes-
tator of his free agency, and makes the will more the act of
others than of himself, which will avoid it.
Neither advice, nor argument, nor persuasion would
vitiate a will made freely and from conviction, though such
will might not have been made but for such advice and per-
suasion.
Undue influence must not be such as arises from the
influence of gratitude, affection or esteem ; biit it must be
the control of another will over that of the testator, whose
faculties have been so impaired as to submit to that control,
so that he has ceased to be a free agent, and has quite
succumbed to the power of the controlling will.
Pressure of whatever character, if so exerted as to over-
power the volition without convincing the judgment, is a
species of constraint under which no valid will could be
made.
Undue influence may also be defined as that which compels
the testator to do that which is against his will through fear
or a desire of peace, or some feeling which he is unable to
resist, and but for which the will would not have been made
as it was.
The testator may have known what he was about when
,he made the will, and may have had sufficient capacity to
make it; this may be true, and still, if his mind were not
free to act, if it was constrained to act, or if it had become
submissive to the will of another who then exercised the
commanding control over the testator, by reason of which
freedom of thought and action in making the will was
Estate of Ingram. 235
suppressed, under such circumstances the will should be
declared invalid.
Considering together the two issues of mental soundness,
and unsoundness and undue influence, it must be noted that
although mere weakness of intellect does not prove undue
influence, yet it may be that, in that feeble state, the testator
more readily and easily becomes the victim of the improper
influences of unprincipled and designing persons who see
fit to practice upon him.
It may be necessary to consider what degree of influence
will vitiate a will, and this depends upon the capacity, in
other respects, of the testator. What would be an undue
influence on one man would be no influence at all on another.
A man of strong will, whose mind is in its wonted vigor,
could not be shown to have been influenced by what might
be such influence as to wholly invalidate the will of one
whose mind has been weakened by sickness, dissipation, or
age.
But as well in the case of the sick, dissipated, or aged, as
in that of one in health and vigor ; in the case of him whose
intellect is weak, as of him whose mind is strong, that influ-
ence which will be sufficient to invalidate a will must be such
as, in some degree or to some extent, to deprive the party
affected thereby of his free agency, and to make the will
not the product of his own untrammeled thoughts: Com-
stock v. Hadylone etc. Society, 8 Conn. 254, 20 Am. Dec. 100.
In all cases of this kind the validity of the will depends
more upon the abuse of a controlling influence than upon
the fact of its existence ; more upon the fact that the testator
was not fairly dealt with, and not left free to pursue his
own natural and healthful instincts and reasonable desires,
than that the person benefited by the will had the power to
control such will.
It need not be proved that there was actual exercise of
influence at the point of time the will was executed.
Influence at any time, the effect of which was to produce
the M'ill without the fair concurrence of the mind of tlio
testator, is sufficient to void the will.
236 Coffey ^s Probate Decisions, Vol. 1.
But the exercise of undue influence must be upon the
very act of making the will ; and must be proved, and cannot
be inferred from opportunit}^ and interest.
Undue influence must be an influence exercised in relation
to the will itself, not in relation to other matters or transac-
tions. But this principle must not be carried too far.
When it is seen that, at and near the time when the will
sought to be impeached was executed, the alleged testatrix
was, in other important transactions, so under the influence
of the persons benefited by the will, that as to them she was
not a free agent, but was acting under undue control, the
circumstances may be such as to fairly warrant the conclusion,
even in the absence of evidence bearing directly on the
execution of the will, that in regard to the will also the
same influence was exercised.
We should be satisfled by a comparison of the will in
all its provisions, and under all the exterior influences which
were brought to bear upon its execution, with the maker of
it as she then was, that such a will could not be the result
of the free and uncontrolled action of such a person so oper-
ated upon, before it can be declared invalid.
All influence is not undue influence. The procuring a
will to be made, unless by foul means, is nothing against its
validity. A man may by fair argument and persuasion, or
even by flattery, induce another to make a will, and even to
make it in his favor.
If the testator act upon the suggestion of others, this will
not invalidate the will, if there be no evidence of improper
dealing or undue influence.
On this subject no distinct or precise line can be drawn.
It is enough to say, that the influence exercised must be an
unlawful importunity on account of the manner or mode of
its exertion, and by reason of which the testatrix's mind
was so embarrassed and restrained in its operation that she
was not mistress of her own opinions in respect to the dispo-
sition of her estate. The only inquiry for the court is, was
the testatrix, from infirmity or age, or other cause, constrained
to act against her will, to do that which she was unable to
refuse by importunity or threats, or any other way, by which
Estate of Ingram. 237
one acquires dominion and control over another? If so, va-
lidity of the will may be impeached.
It is not possible to define or describe with exactness
what influence amounts to undue influence in the sense
of the law; this can only be done in general and approxi-
mate terms. In each case the decision must be arrived at
by application of these general principles to the special
facts and surroundings in the case.
No influence can be considered as undue influence which
does not overpower the inclinations and judgment of the
testatrix, and induce a disposition of her property contrary
to her own wishes and desires.
Undue influence cannot be presumed, but must be proved
in each case; and the burden of proving it lies on the party
alleging it.
Undue influence is not a presumption, but a conclusion
from the facts and circumstances proved.
In Children's Aid Society v. Loveridge (70 N. Y. 387),
Miller, J., said:
"The position of the contestant is that the execution of
the will was procured by the exercise of undue influence on
the part of those who were the beneficiaries, and who, at the
very time of the making of the same, were possessed of her
confidence and surrounded her.
"In order to avoid a will upon any such ground, it must
be shown that the influence exercised amounted to a moral
coercion which restrained independent action and destroyed
free agency, or which, by importunity which could not be re-
sisted, constrained the testatrix to do that which was against
her will, but which she was unable to refuse or too weak to
resist.
' ' It must not be the promptings of affection ; the desire of
irratifving the wishes of another; the ties of attachment
arising from consanguinity, or the memory of kind acts and
friendly offices, but a coercion produced by importunity, or
by a silent, resistless power which the strong will often
exercise over the weak and infirm, and which could not be
resisted, so that the motive was tantamount to force or fear. ' '
238 Coffey's Probate Decisions, Vol. 1.
To sum up the elements which go to constitute undue
influence, the facts proved must be such as:
1. To destroy the freedom of the will of testatrix, and
thus render her act obviously more the offspring of the will
of others than of her own.
2. That it must be an undue influence specially directed
toward the object of procuring a will in favor of the par-
ticular parties.
3. If any degree of free agency or capacity remained in
the testatrix, so that when left to herself she was capable
of making a valid will, then the influence w^iich so controls
her as to render her making a will of no effect, must be
such as was intended to mislead her to the extent of making
a will essentially contrary to her duty; and it must have
proved successful to some extent, certainly : 1 Redfield on
Wills, 523, 524; 1 Jarman on Wills ; Reynolds v. Root, 62 Parb.
250 ; 2 Phill. 449-451 ; Gardiner v. Gardiner, 34 N. Y. 155 ;
Saunders' Appeal, 54 Conn. 108, 6 Atl. 185; Disbrow's Estate,
58 Mich. 96, 24 N. W. 624 (see notes to this case, p. 629) ;
Maynard v. Vinton, 59 Mich. 139, 60 Am. Rep. 27, 26 N.
W. 401; Estate of Tittel, Myr. 16; Estate of Black, Myr.
31 ; Waterman v. Whitney, 11 N. Y. 165, 62 Am. Dec. 71.
Having stated these legal propositions, their application
to the facts in controversy remains to be seen. Had Mrs.
Ingram, at the time this instrument was executed, sufficient
memory to fairly and rationally comprehend the effect of
what she was doing? Did she understand and appreciate her
relations to her husband and her relatives ? And did she un-
derstand the character and effect of the provisions of the will ?
Did she have a reasonable understanding of the nature of
the property to be disposed of, and of the persons to whom
she wished to distribute it? Did she exercise her own choice
and did she express her own wishes? If she did have such
understanding, she had the legal right to make any disposition
of her property that she pleased.
If she acted freely and with proper understanding, she
had a legal right to ignore her husband and all her kin
— "to cut them off with a shilling"— and send her property
to strangers. Neither courts nor juries can say whether
Estate of Ingram. 239
this legacy or that is a prudent or wise one to make;
by attempting to do so we should attempt to make our will
take the place of that of the testatrix. Such an instrument
should not be lightly set aside. It is only when the court is
brought irresistibly to the conclusion, from the evidence, that
the will proffered for probate was procured by the applica-
tion of a dominant and controlling intelligence to an inferior
understanding or a feebler will in an improper manner, that
the instrument will be declared void.
The proponent of this instrument, Junius L. Hatch, is a
keen, shrewd, cool man of a large and varied experience
and extensive worldly knowledge, a fair judge of human
nature, with quick perceptions of the. weak points of his
fellow-mortals ; ready to seize advantages, and steadfast in
holding on; in address plausible, in deportment perfect, in
manner insinuating, in aspect benevolent ; in all exterior
attributes calculated to secure the trust of a woman whose
mind was weakened by the natural advance of senility and
tainted by the disease of jealousy.
Take such a man, as his counsel describes him, with his
manner and demeanor, and everything bearing the impress
of truth ; his actions invested with the appearance of honesty,
his utterance sympathetic and apparently sincere ; an out-
ward seeming of candor, calmness and consistency; qualities
which indicated a man of humane heart, kindly nature and
disinterested disposition. It was natural he should have
made a deep impression upon the morbid mind of this aged
woman. Once he discovered the vulnerable point in her
character, he operated adroitly and persistently. As against
the clever intrigues of such a man, the imperfect intellect
and infirm purpose of the youthful husband of this old lady
had no prospect of success. From the moment Junius L.
Hatch first met Hannah G. Ingram, the young husband was
deposed, his authority was gone, and to it succeeded the para-
mount influence of a will strong and resolute, an intelligence
always alert and vigilant in the prosecution of the design
to gain the confidence and to control the fortune of Hannah
G. Ingram. Between these two men there is the strongest
contrast of character and culture. The career of Hatch was
240 Coffey's Probate Decisions, Vol. 1.
that of a man of great adaptability to changing circumstances.
At this time, in his sixty-second year, he has been actively
employed in the ministry of the gospel, in the civil service
of the government, in the profession of a school teacher,
also as a journalist, being both an editorial writer and a
newspaper reporter. The title of "doctor," b}^ which he is
often described, he disclaims. He was regularly ordained at
Gloucester, Massachusetts, and for several years had charge
of a Congregational church. Changing his religious views,
he became a Unitarian minister, and accepted a settlement
over a Unitarian church in Massachusetts and in New Hamp-
shire, which he retained for about ten years. The last charge
he undertook was in San Jose in 1882, which charge he vol-
untarily relinquished, because of inadequacy of remuneration.
Subsequently he taught in the public schools, and privately,
for a number of years. Thereafter he became a clerk in the
custom-house of this port, and finally engaged in journal-
ism, which is his present occupation.
It was while plying his vocation as a journalist, acting as
a reporter for the "Morning Call" newspaper, that he first
encountered Mrs. Ingram, pending an inquiry into her sanity
in this court and department. He was sent by his employer
to interview her, to ascertain if, according to his opinion,
she was insane. Upon that occasion he had an hour's inter-
view with her. He called again the next day, and after that
saw her every day or two for several weeks. These visits
were made, according to his story, at her special instance and
request. Complying with her desire, he wrote articles to
correct public opinion as to her case, which articles he caused
to be inserted in various newspapers. His visits were con-
tinued by her wish, because she felt she needed a friend for
counsel and advice, and she had confidence in Dr. Hatch.
Their relations became very friendly and confidential. She
visited his family sometimes, and occasionally his daughter
visited her, and she expressed herself as grateful for the
kindness of his daughter in sending her delicacies during her
illness.
Dr. Hatch was assiduous in his attentions to Mrs. Ingram
being sometimes as frequent in his visitations as three or
Estate of Ingram. 241
four times a day, and the result of his visits seems to have
been a fastening of the delusion in her mind that her husband
was unfaithful to her, principally with the "Spanish
woman," otherwise Miss Pratt.
It is in evidence that Dr. Hatch himself said that he had
no doubt that there was truth in the "Spanish woman's"
story; that he had followed it up and found some basis for
it; and he also declared to one of the witnesses (see evidence
of George H. Perry) that Ingram was a lazy, shiftless
fellow, and that he had abused his wife.
"While he denies that he ever said or did anything to
encourage her in her impressions about her husband, it is
diiiicult to reconcile this statement with the declarations just
adverted to, made to witness Perry, and with the strain and
tenor of the letter from him, dated San Francisco, January
28, 1886, to Ingram.
(See Exhibit "F," a printed copy of which is here
inserted, as well as the letter to which it is an answer.)
Exhibit "D."
The first letter from Ingram to Rev. Dr. Hatch reads:
"San Francisco, Jan. 22d, 1886.
"Mr. Hatch: — The snake in the grass, you are a lier, a
villian and a coward of the deepest die. You put a piece
in the papers about me, and you lied when you did it. You
have been trying to seperate me and my wife by lieing to
her about the Spanish woman, you are a dam lier of the worst
kind. I defy you or anyone to prove that I know that Spanish
woman or had anything to do with her you are trying to
separate my wife and me so you can get hold of her proporate.
I tell you, you shall not get hold of her proporate as long
as I live. I am not afraid of you or your kind in Court or out.
I will make your grey hairs stand on ends when I get you
in Court. You dare not tell me to my face what you are and
have been telling in this city about me. they know you are
after my wife properately and lieing about me and now do
your damist you are a black villian and a coward and a pre-
tendend friend, you mean low life scoundle you can fine
me at 754 Folsom st at night or at Scott and Clay st in the
Prob. Dec, Vol. I — 16
242 Coffey ^s Probate Decisions, Vol. 1.
day time. I defy you to face me like a man and tell to my
face the lies you are telling I will handle you Hatch in a
differend way that I did Abbott which will be in Court I will
fight you face to face in any proceeding that you wish to
take I am working steady and am not a loafer as you say I
am. You mean low life villian you will have to prove all those
things if you do not think I can put you behind with your
grey hairs behind the bars as people has been trying to do
with me. I defy you to starte in.
"From JOHN W. INGRAM,
"754 Folsom st."
Exhibit "F."
The answer of Rev. Dr. Hatch to Ingram's epistle reads;
"San Francisco, January 28, 1896.
' ' John W. Ingram : — Your very abusive and insulting let-
ter is really unworthy of notice or reply, but I have con-
cluded to answer it so far as to remind you that you have
never received anything but kindness from me, and to say
that your language to me is, therefore, particularly dis-
creditable to you. 'Ingratitude is a monster,' and you are
certainly monstrously ungrateful for the many favors I have
done you, from the day I first saw you behind the bars in
the city prison, to the last time, when I gave you money to
pay for food and lodging.
"Have you forgotten who it was that exerted himself
to assist your wife's heroic efforts to save you from a fel-
on's cell at San Quentin, where, but for us, you would
probably at this time be wearing motley prison garb and
serving out a sentence of fourteen years? Have you for-
gotten that when there was a possibility that you might be
let off with a fine of $500 — I say, have you forgotten who it
was stood ready with his $500 to pay that fine? And when
you had to go to jail, instead, have you no recollection who
bought a bed .and other things to make you comfortable?
And, when Mrs. Ingram could not be admitted after hours,
who used his privilege as a reporter to carry you in food,
fruit, etc.?
"Is it possible, Ingram, that your memory is so treach-
erous and that you have really forgotten also the many
Estate of Ingram. 243
favors I have done you since your discharge, taking your
property out of pawn repeatedly; letting you have money
as you needed, and, when you had no work, going round
to one shop after another to get it for you? Or is it pos-
sible that, with all these favors in your mind, as you have
repeatedly acknowledged them to me in the strongest terms,
declaring that you would never, never forget my kindness,
would return it whenever you could, and be my friend for
life, you turn on me in this abusive way ? You remind me of
the venomous reptile the farmer found almost dead with
cold in the field. ]Moved with compassion, he carried it home
and w^armed it at his hearth, when it turned its fangs on its
benefactor and stung him for his pains.
"But why should I expect you to be grateful to me when
you have been ungrateful to your generous and long-suffer-
ing wife? Why kind to me when you have been so cruel
to her, who has done so much more for you than I ? You
falsely charge me with having tried to separate you and her.
On the contrary, I have always tried, when you had es-
tranged her from you by your bad conduct and your ex-
asperating taunts about being 'crazy,' etc.; I have tried, I
say, to smooth over matters and keep you together. You
pretend to think me actuated by mercenary and selfish mo-
tives — judging me by yourself, probably, for you have
thrown off the mask now completely, and in the letter you
wrote me, as well as in the letter you wrote her, you show
clearly that your great anxiety is to get hold in some way
of her property, which she is determined you shall never do^
after treating her as you have, and I cannot blame her for
it.
"Instead of going to work and keeping to work and re-
paying her, as you promised, a part at least of the expense
you had been to her, you have not earned your board since
you got out of jail, but have been au additional expense
and burden to her.
"I did not call you a 'loafer,' but I did say you seemed
to prefer to live on your wife's slender income without
work rather than to work and earn your own living, and
I say so still.
244 Coffey's Probate Decisions, Vol. 1.
"The proposition you have repeatedly made to her that
you would go to work and give her your wages if she would
deed the property to you, or have the deed made out in your
names together, shows your disposition plainly enough. If
you had not been so greedy and avaricious, you would have
fared much better, probably. With regard to what you say
of the woman Pratt, Mrs. Ingram showed me a note, written
by you while you were in jail, acknowledging that what she
(Mrs. Ingram) had said about the woman and of your re-
lations with her (Pratt) was all true, and at her request I
carried an item to that effect to the paper. She has that
note in her possession still, and the handwriting is unmis-
takably yours. You have made the last year and more of
your wife's life very unhappy, and the disease under which
she is now suffering severely, and which may terminate
fatally, I have every reason to believe was brought on by
mental worry on your account. I have done all I could for
her comfort and relief, and shall continue to do as long as
she lives. I have never given her an unkind word or wor-
ried her by an unkind act. It were well for your peace of
mind, methinks, if you could say the same. She does not
wish to see you at present, and has enjoined me not to in-
form you where she is, lest you should trouble and annoy
her, as you did the last time she saw you. When she wishes
to see you I will notify you, and she can tell you, if she
has not already told you, that I have never sought to influ-
ence her against you, or with regard to the disposition of
her property.
"I hold a note signed jointly by you and her for one
hundred and some odd dollars, on which she has paid me
sixty dollars. The remainder you promised to pay from
your earnings, with other moneys advanced since you were
living with her on O'Farrell and Polk streets. You kept
an account of this, I believe, and, if I am not mistaken, it
amounts to about thirty dollars. You owe me five dollars
more on your watch chain, which I took out of pawn for
the third time, and which I hold as security for the debt.
If you mean to be honest with me you will pay me out of
your wages as soon as you can. I will charge you no in-
terest if you do that, and will hold the chain for you.
Estate of Ingram. 245
"I am glad you are at work, as you say your are, and
hope you will keep at it, and show by your future con-
duct that you are determined to redeem your character,
and live so that you will have no occasion to be ashamed
of yourself in the future. If any person, man or woman,
advises you to any other course, and tries to induce you to
attempt to get possession of your wife's property, by force
or by fraud, or in any way except with her free will and
consent, on the ground of affection and regard, such per-
son is a poor counselor, and your enemy instead of your
friend. J. L. HATCH.
"P. S.— At Mrs. Ingram's request, I read the letter you
sent me, and also the one you sent her, to her, and I have
also read to her this reply. She says I have spoken the
truth, but have put it more mildly than she would have done
if w'riting to you. You have my permission to read this let-
ter to Mrs. Fitzgerald and her niece, or any others.
"J. L. H."
The association between Dr. Hatch and Mrs. Ingram,
under the circumstances, was extraordinarily confidential
In all his intercourse wdth her he appears to have been
her business adviser, and to have been substituted in her
confidence, if not in her afi^ections, for her husband. He
controlled her movements; when her husband was in jail
she communicated with him through Hatch; when she was
finally taken sick — so sick that she had to be carried to the
German Hospital — Dr. Hatch was still sedulous in his at-
tentions to her, and in his supervision over her affairs. It
was he who took her to the hospital, where, it appears, she.
never saw her husband. There she lay prostrated by dis>--.
tressing corporal maladies ; she had liver trouble, liver ob- .
siruction, and jaundice, to which diseases she succumbed on
the 1st of February, 1886. From the day he became ac-
quainted with her, in December, 1884, to the day of her
death, Dr. Hatch never lost sight or control of Mrs. Ingram.
This is the tenor of the testimony. In all her various lodg-
ing places he was her most frequent visitor ; his interviews ;
were commonly out of the presence of her husband; even
when Ingram was in the house, his wife and Hatch woulci^
246 Coffey's Probate Decisions, Vol. 1.
have their interview without his presence (testimony of Mrs.
Golden) ; and it is in evidence that whereas, before Dr.
Hatch's visit, she would be very friendly with her husband,
or "Johnnie," as she was accustomed to call him, after
Hatch's departure her manner toward "Johnnie" would
change (testimony of Mrs. Carpenter). Her talk about the
imaginary "Spanish woman" became, also, more pronounced
at these times; "she said if her husband had not run with
the 'Spanish woman,' she would leave it all (her property)
to him."
That Dr. Hatch did not discourage her in the entertain-
ment of this delusion as to the "Spanish woman" is shown
by the letter to Ingram, Exhibit "F," hereinbefore in-
serted. In this most extraordinary effusion, in reply to In-
gram's accusation (Exhibit "D") that he (Hatch) had
been trying to separate Ingram and wife by lying to her
about the "Spanish woman," so he (Hatch) could get hold
of the property, Hatch says: "With regard to what you say
of the woman Pratt, Mrs. Ingram showed me a note written
by you while you were in jail, acknowledging that what she
(Mrs. Ingram) had said about the woman and of your re-
lations with her (Pratt) was all true, and at her request
I carried an item to that effect to the paper. She has that
note in her possession still, and the handwriting is unmis-
takably yours." This note, the authorship of which is here
imputed to Ingram, but which is denied by him, was not
produced on the trial. It was not found among her papers,
and its nonproduction is significant. In the same connec-
tion the postscript to this letter from Hatch is noteworthy.
"P. S. — At Mrs. Ingram's request, I read the letter you
sent me, and also the one you sent her, to her; and I have
also read to her this reply. She says I have spoken the
truth, but have put it more mildly than she would have done
if writing to you."
Whatever may be said of Dr. Hatch's letter. Exhibit
"F," it can hardly be accused of drawing it mild. This
letter certainly speaks for itself, and it is of great conse-
quence in showing the closeness of his relation to and the
strength of his influence over the wife of Ingram. What
was the object of his frequent visits to Mrs. Ingram? It
Estate of Ingram. 247
was all business. Although, by virtue of his sacerdotal call-
ing, he might have administered to her spiritual consolation,
no hint of such ministration is shown by the evidence; no
such suggestion is contained in the letter to Ingram (Ex-
hibit "F") ; nowhere does it appear that in Dr. Hatch's
mind was there aught but business; "property" is his over-
mastering idea, his ruling thought in all his intercourse and
correspondence with the Ingrams. In his letter to Ingram
(Exhibit "F") he says: "If any person, man or woman,
advises you to any other course, and tries to induce you to
get possession of your wife's property, by force or by fraud,
or in any way except with her free will and consent, on the
ground of affection and regard, such person is a poor coun-
selor, and your enemy instead of your friend. ' ' In this curi-
ous contribution to the literature of will contests, it is diffi-
cult to discern the spiritual element. It is of the earth,
«arthy.
But how came the will into existence? One day, about
the middle of February, 1885, according to Dr. Hatch's
testimony, he called upon Mrs. Ingram; she gave him some
"specifications" from which he was to draw up the form;
lie did so, he did not write the specifications. Who did?
His son, William K. Hatch, a young man of twenty-one
years of age, who never thitherto had drawn a will — a bag-
gage and brakeman on the railroad — it was this inexperi-
-enced youth who was selected to take down the "memo-
randa" from which the will was elaborated. He purchased
the blank form, and from the "specifications" or "memo-
randa" the will was drawn by Junius L. Hatch, the propo-
nent, the principal beneficiary, residuary legatee, and execu-
tor. Where are the "specifications" or "memoranda"?
Their nonproduction must be regarded as important. Who
so much interested in their preservation and production as
the proponent? It was in his power to preserve this paper;
it was his interest to produce it ; and the circumstance that
it is not preserved and produced must tell against him.
The will itself is filled out in a printed form, the filling be-
ing in his handwriting, and the inspection of the paper
shows that it was carefully drawn in his interest. If
-drawn from the "specifications" dictated by her to a youth
248 Coffey's Probate Decisions, Vol. 1.
who had no experience in drawing wills, presumably un-
familiar with technical legal terms, it is strange that such
exactitude of legal expression should obtain, as is particu-
larly shown in the paragraph "Eighthly," in words as fol-
lows : " I hereby give, devise and bequeath to Junius L.
Hatch, journalist, now of the City and County of San Fran-
cisco, my house and lot, No. 1724 Hyde street, including
the cottage in the rear, now numbered 1235 Vallejo street;
and I do also hereby make the said Junius L. Hatch my
residuary legatee." It is hard to believe that this residuary
clause came from the lips of the decedent, and was set down
in such terms by the inexperienced hand of the young man
Avho had never before drawn a will; and the appearance of
the script adds to the improbability of such fact, and
strengthens the impression that it was the inspiration and
the act of the proponent of this instrument. While he dis-
claims having anything to do with the dictating of the terms
of that instrument, his own son testifies that he (the son)
went to Mrs. Ingram at the request of his father, and then
from her instructions prepared the "memoranda" for the
will. The proponent testifies that before Mrs. Ingram went
to Paso Robles Springs, she told him what she had deter-
mined to do about her property, because of her husband's
infidelity and his ill-treatment of her; she also spoke of the
Cloughs, her nephews, and their conduct.
To corroborate his statements that he had nothing to do
with the disposition of the property, he introduces a witness,
Dr. Thomas Grant, who testified that he knew Mrs. Ingram,
and also Dr. Hatch, the latter of whom lived in the same
house for awhile with them. Grant saw Mrs. Ingram on Polk
street before she went to Paso Robles Springs, and she said
she had everything all fixed in case she did not come back;
she left everything to Dr. Hatch, he and his family had
been kind to her; only $5 to her husband; he had been
unkind to her; all he wanted was her property; he had tried
to get her in the asylum; she left $5 each to her nephews;
they had been unkind; this was about the sum and substance
of what she said to the witness Grant, according to his
testimony. She asked him to remember what she told him
in case she didn't come back from the springs. Upon the-
Estate of Ingram. 249
cross-examination of this witness it appeared that his re-
lations with Dr. Hatch were quite friendly, and that he
went to see Mrs. Ingram at the instance of and in company
with him. What was the purpose of this joint visit? Al-
though this witness, according to his statement, had been
at one time a regular physician, it is many years since he
pursued that calling as a profession, and not at all in this
city, his nearest connection with the practice being that he
deals in medicines in a small way, being occupied at other
times in the building of houses, and his medical attentions
to Mrs. Ingram were of the slenderest character.
The conclusion that the court drew from his testimony
was that the real object and purpose of his visit to Mrs.
Ingram was to substantiate the premeditated plan of the
proponent of this will : that Mrs. Ingram was acting of her
own volition without restraint exercised by Dr. Hatch or
any one else, and upon rational premises as against her
husband and her nephews. If the deliberate design of Dr.
Hatch were to prepare his proofs in advance for the es-
tablishment of this paper as a valid will, he could not have
acted with greater care, the vice of his process being the
excess of precaution in laying his foundations in some par-
ticulars; as, for example, in the case of the witness Grant,
and the endeavor to materialize the mythical "Spanish
woman"; and for other instances, see his own testimony
and that of his son, and the testimony throughout.
In the infrequent intervals afforded by the other occu-
pations of this department, and in the face of interruptions
necessarily suffered bj^ and in the discharge of other
duties, I have endeavored to make a careful examination
and collation of the legal principles applicable to the issues
in this case, and a fair statement of the facts adduced in
evidence. If there is any omission to comment upon any
particular statements of witnesses, it is because I have at-
tached more importance to what I have set down than to
what I have passed by lightly or omitted to enlarge upon;
but upon the whole case, as presented, I do not see how the
conclusions can be escaped: (1) That at the time of making
this will the testatrix was laboring under an insane delusion,
and that this will was the product of that delusion ; and (2)
250 Coffey ^s Probate Decisions, Vol. 1.
that she was unduly influenced to make this will in favor of
the proponent, Junius L. Hatch, and that, consequently, the
instrument here propounded should be and it is refused ad-
mission to probate. Let judgment be entered accordingly.
"An Insane Delusion is the spontaneous production of a diseased
mind, leading to the belief in the existence of something which
either does not exist or does not exist in the manner believed — a
belief which a rational mind would not entertain, yet which is so
firmly fixed that neither argument nor evidence can convince to the
contrary": Estate of Kendrick, 130 Cal. 360, 62 Pae. 605; Potter
V. Jones, 20 Or. 239, 25 Pac. 769, 12 L. E. A. 161; note to People v.
Hubert, 63 Am. St. Eep. 30, on insane delusions. A delusion which
will destroy testamentary capacity must spring up spontaneously in
the mind, without extrinsic evidence of any kind to support it. If
it has any foundation in fact, if it has any evidence, however slight,
as its basis, it is not an insane delusion. One cannot be said to be
under such a delusion if his condition of mind results from a belief
or inference, however irrational or unfounded, drawn from the facts
which are shown to exist: Estate of Scott, 128 Cal. 57, 60 Pac. 527;
In re Cline's Will, 24 Or. 175, 41 Am. St. Eep. 851, 33 Pac. 542;
Skinner v. Lewis, 40 Or. 571, 67 Pac. 951, 62 Pac. 523. Moreover,
the belief must be real, not simulated; and it must be persistent,
not a "fleeting vagary" or a temporary hallucination: Estate of Eed-
field, 116 Cal. 637, 48 Pac. 794; Estate of Caleb, 139 Cal. 673, 73
Pac. 539. And furthermore, a delusion, to be fatal to the validity
of a will, must be operative in the testamentary act: Estate of Eed-
field, 116 Cal. 637, 48 Pac. 794; Estate of Dolbeer, 149 Cal. 227, 86
Pac. 695. It is not enough that a delusion may exist; its connection
with the will must be made manifest, and shown to have influenced
its provisions: Potter v. Jones, 20 Or. 239, 25 Pac. 769, 12 L. E. A.
161.
"In ordinary language, a person is said to be under delusion who
entertains a false belief or opinion which he has been led to form
by reason of some deception or fraud, but it is not every false or un-
founded opinion which is in legal phraseology a delusion, nor is
every delusion an insane delusion. If the belief or oijinion has no
basis in reason or probability, and is without any evidence in its sup-
port, but exists without any process of reasoning, or is the sponta-
neous ofl^spring of a perverted imagination, and it is adhered to
against all evidence and argument, the delusion may be truly called
insane; but if there is any evidence, however slight or inconclusive,
which might have a tendency to create the belief, such belief is
not a delusion. One cannot be said to act under an insane delusion
if his condition of mind results from a belief or inference, however
Estate of Ingram. 251
irrational or unfounded, drawn from facts which are shown to exist":
Estate of Scott, 128 Cal. 57, 60 Pac. 527.
The Undue Influence Which Invalidates a Will must be such as
relates to the will itself, and operates upon the testator at the time
of his making the will: Estate of Kaufman, 117 Cal. 288, 59 Am.
St. Eep. 179, 49 Pac. 191; Estate of Flint, 100 Cal. 391, 34 Pac. 863;
Estate of Shell, 28 Colo. 167, 89 Am. St. Eep. 181, 63 Pac. 413, 53 E.
E. A. 387; Gwin v. Gwin, 5 Idaho, 271, 48 Pac. 295; Estate of Hol-
man, 42 Or. 345, 70 Pac. 908. General influence, not directly brought
to bear upon the testamentary act, though strong and controlling, is
not enough: Estate of McDevitt, 95 Cal. 17, 30 Pac. 101; Estate of
Black, 132 Cal. 392, 64 Pac. 695; Estate of Donovan, 140 Cal. 390,
73 Pac. 1081; In re Darst's Will, 34 Or. 58, 54 Pac. 947. The in-
fluence must be used directly to procure the will, and must amount
to coercion destroying the free agency of the testator at the time
of the execution of the instrument: Estate of Carpenter, 94 Cal. 406,
29 Pac. 1101; Estate of Motz, 136 Cal. 558, 69 Pae. 294; Estate of
Keegan, 139 Cal. 123, 72 Pac. 828; Goodwin v. Goodwin, 59 Cal. 561;
Hurley v. O'Brien, 34 Or. 58, 54 Pac. 947; Estate of Holman, 42 Or.
345, 70 Pac. 908; Waddington v. Busby, 45 N. J. Eq. 173, 14 Am. St.
Eep. 706, 16 Atl. 690.
When a Will is Contested on the Ground of Undue Influence, the
burden of proof is generally on the contestant: Estate of Motz, 136
Cal. 558, 69 Pac. 294; Estate of Latour, 140 Cal. 414, 73 Pac. 1070,
74 Pac. 441; Dausman v. Eankin, 189 Mo. 677, 107 Am. St. Eep.
391, 88 S. W. 696; note to Eichniond's Appeal, 21 Am. St. Eep. 94-
104. See, however. Estate of Holman, 42 Or. 345, 70 Pac. 908. Such
influence cannot be inferred merely from opportunity and motive:
Herwick v. Langford, 108 Cal. 608, 41 Pac. 701; Estate of Nelson,
132 Cal. 182, 64 Pac. 294; Estate of Black, 132 Cal. 392, 64 Pac.
695; Estate of Donovan, 140 Cal. 390, 73 Pac. 1081; Estate of Shell,
28 Colo. 167, 89 Am. St. Eep. 181, 63 Pac. 413, 53 L. E. A. 387;
Hubbard v. Hubbard, 7 Or. 42. But while undue influence is not
presumed, still, like fraud, it rarely is susceptible of proof by direct
and positive evidence. Hence it is that courts are liberal in allow-
ing a wide range of investigation, and permitting the introduction
in evidence of all facts and circumstances, even though of slight
significance in themselves, which tend to throw light upon the is-
sue: Clough V. Clough, 10 Colo. App. 433, 51 Pac. 513; Blackman
v. Edsall, 17 Colo. App. 429, 68 Pac. 790; Estate of Shell, 28 Colo.
167, 89 Am. St. Eep. 181, 63 Pac. 413, 53 L. E. A. 387; Dausman
V. Eankin, 189 Mo. 677, 107 Am. St. Eep. 391, 88 S. W. 696. How-
ever, although circumstantial evidence may be suflieient, it must
amount to proof; and it has the force of proof only when circum-
stances are proved which are inconsistent with the claim that the
will was the spontaneous act of the testator: Estate of McDevitt,
252 Coffey's Probate Decisions, Vol. 1.
95 Cal. 17, 30 Pac. 101; Estate of Calkins, 112 Cal. 296, 44 Pac.
577.
"The question of undue influence is one of peculiar character; it
does not arise until after the death of the one who alone fully
knows the influences which have produced the instrument; it does
not touch the outward act, the form of the instrument, the signa-
ture, the acknowledgment; it enters the shadowy land of the mind
in search of its condition and processes This opens a broad
field of inquiry and gives to such a contest over a will a wider
scope of investigation than exists in ordinary litigation": Mooney
V. Olsen, 22 Kan. 69, approved in Estate of Miller (Utah), 88 Pac.
338. For cases considering the sufiiciency of the evidence to estab-
lish undue influence, see Estate of Welch, 6 Cal. App. 44, 91 Pac.
336; Estate of Carriger, 104 Cal. 81, 37 Pac. 785; Estate of Sil-
vany, 127 Cal. 226, 59 Pac. 571; Estate of Kendrick, 130 Cal. 360,
62 Pac. 605; Estate of Tibbetts, 137 Cal. 123, 69 Pac. 978; Estate
of Calef, 139 Cal. 676, 73 Pac. 539; Estate of Morey, 147 Cal. 495,
82 Pac. 57; Ames v. Ames, 40 Or. 495, 67 Pac. 737; Estate of Abel
(Nev.), 93 Pac. 227.
Estate of ELIZABETH D. TRAYLOR, Deceased (No. 2).
[No. 4,705; decided April 18, 1887.]
Will. — A Bequest of "Ornaments" is in this case construed to
embrace jewelry and "jewels in general."
Will. — A Bequest of "Her Wardrobe" by the testatrix is held in
this case not to include her ' ' ornaments. ' '
J. F. Swift, for executors.
Wm. Thomas, for Louise E. Matthews, legatee.
Selden S. Wright, for certain absent devisees and legatees.
D. Wm. Douthitt, for heirs at law.
J. C. Bates, of counsel with Douthitt, for heirs.
COFFEY, J. Elizabeth D. Traylor died, leaving a will,
duly admitted to probate in this court, November 10, 1885.
in which (inter alia) she made a bequest in terms as follows:
"To my niece, Louise E. Matthews, of this city, I give ten
thousand dollars, my piano, sewing machine, finger rings
(save the diamond ring I habitually wear), and so many of
Estate of Traylor. 253
my books, pictures and ornaments (not otherwise bequeathed
specifically) as she shall choose to take. I also charge my
executors, hereinafter named, to purchase, or otherwise pro-
vide for said Louise E. Matthews, a house, such as in their
judgment shall best befit her condition in life, and to permit
her to furnish the same from the furniture of my home."
In a codicil admitted to probate at the same time, she pro-
vides that:
"Mrs. Margaret A. Wilson shall have so much and so
many articles of my wardrobe as she shall care to take."
The question presented is, "What passes to the legatees
under the terms "ornaments" and "wardrobe"?
1. What are "ornaments"?
"The words of a will are to be taken in their ordinary
and grammatical sense, unless a clear intention to use them
in another sense can be collected, and that other can be ascer-
tained": Civ. Code, sec. 1324.
"In case of uncertainty arising upon the face of a
will, .... the testator's intention is to be ascertained from
the words of the will, taking into view the circumstances under
which it was made, exclusive of oral declarations ' ' : Civ.
Code, sec. 1318.
We must, in such case, take the will, holding it "by the
four corners," and read it in the light of the circumstances
surrounding its execution.
The word "ornaments" is of Latin derivation, and, going
to the source for a definition, we find in Andrews' Latin-
English Lexicon :
"Ornamentum, n. (1) Apparatus, accoutrement, equip-
ment, furniture, trappings, etc. ; ceterae copiae. orna-
menta, praesidia, Cic. Cat. 2, 11, etc. (2) An ornamental
equipment, ornament, decoration, embellishment, jewel,
trinket; pecuniam, omniaque ornamenta ex fano herculis
in oppidum cartuUt, jewels, Caes. B. C. 2, 18; quae
(nrhs. praesidio et ornamento est civitati, Caes. B. C. 7,
15 ; ipse ornamenta a chorago haec sumpsit, i. e., a dress,
costume, Plant, Trin. 4, 2, 16, etc. ; ornamenta trium-
pJiaiia constdaria, the insignia of triumphing generals,
etc."
254 Coffey's Probate Decisions, Vol. 1.
"Worcester defines:
"Ornament. (1) Embellishment; decoration; that which
adorns or beautifies.
'^Illustration: I hold every man a debtor to his profession,
from the which, as men of course do seek to receive coun-
tenance and profit, so ought they of duty to endeavor them-
selves, by way of amends, to be a help and ornament there-
unto. — Bacon.
"(2) [Fine Arts.] Any accessory part of a work which
has the merit of adding to its beauty or effect.
" Illnstration: Pedestals, pediments, draperies, fringes, gar-
lands, vases, cameos, utensils of elegant and picturesque
form, are the usual subject of ornament in painting.
—Fairholt."
Webster's definition is:
' ' That which embellishes ; that which adds grace or beauty ;
embellishment; decoration.
"The ornament of a meek and quiet spirit, which is in the
sight of God of great price. — 1 Peter, Hi, 4.
"Is it for that such outward ornament
Was lavished on their sex? — Milton.
"Ornamental, a. [Lat. as if ornamentalis from ornamen-
tum. ] Serving to ornament ; giving additional beauty ;
embellishing.
"Some think it most orname^ital to wear their bracelets on
their wrists ; others about their ankles. — Browne."
There are many terms of frequent occurrence in legacies,
in regard to which there have been almost an indefinite
number of decisions; but cases generally depend so much
upon their peculiar circumstances, and the accompanying
context, that one can afford very slight aid toward the deter-
mination of another not precisely similar. Thus, the word
"jewels" is often brought under discussion, as in Attorney
General v. Harley, 5 Russ. 173, where the testatrix directed
all her jewels to be sold, except certain rings, and her neck-
laces of every description, pearls, garnets, carnelians and
watches, which she gave specifically; and it was held that a
diamond necklace and cross came under the direction for
Estate of Traylor. 255
sale, and the pearl necklace passed under the specific be-
quest: 2 Redfield on Wills, *123, *124, sec. 13.
Webster defines:
"Jewel, n. 1. An ornament of dress in which the precious
stones form a principal part.
"Plate of rare device,
And jewels of rich and exquisite form. — Shakespeare.
"Sweet are the uses of adversity,
Which, like the toad, ugly and venomous.
Wears yet a precious jewel in his head. — Ibidem.
"2. A precious stone; a gem."
From a careful study of the will and codicil, and from an
elaborate examination of the authorities cited by counsel, I
have come to the conclusion that the contention of the attor-
ney for the heirs at law (that the word "ornaments" in the
bequest "does not apply to jewelry," and is not used in that
sense) is not sustainable; and that, applying the canons of
construction to this instrument, the court must, and it does,
conclude that jewelry, "jewels in general," are within the
meaning of the clause "ornament (not otherwise bequeathed
specifically) as she shall choose to take."
2. The second point presented for construction is : What
is included in the word "wardrobe," in the bequest to ]\Irs.
Margaret A. Wilson?
Counsel for this legatee argues strenuously that "ward-
robe" is a general term and includes "ornaments." Among
the authorities relied upon by the ingenious and able counsel
was Thomas Carlyle, not generally recognized in controver-
sies of this character, but entitled to respect for his skill and
exactitude in the use of words. The counsel cited Carlyle 's
Sartor Resartus, and I find on pages 25-27 (of the People's
Edition, London, Chapman & Hall, see in the [San Francisco]
Law Library) reference to Herr Teuf elsdroch 's dissertation
on "Clothes," beginning with the remark:
"The first purpose of clothes was not warmth or decency,
but ornament."
256 Coffey's Probate Decisions, Vol. 1.
Webster defines wardrobe to be:
"1. A room or apartment where clothes are kept, or wear-
ing apparel is stored ; a portable closet for hanging up clothes.
"2. Wearing apparel in general; articles of dress or decora-
tion."
In Gooch V. Gooch, 33 Me. 535, it was decided that a
watch, which the testator had been in the habit of carrying
with his person, did not pass by a bequest of his wearing
apparel. We see that, according to Webster, "wardrobe" is
"wearing apparel in general," so that the Maine case is in
point. As the reasoning of the court in Gooch v. Gooch is
applicable, we shall appropriate it to the present purpose.
Ihe judge, in delivering his decision, said that if the watch
belonged to the plaintiff it must have been given by being
included in the words "wearing apparel." It appears that
the testator purchased the watch a few years before his death,
and generally used it by carrying it upon his person. Words
used in wills are to be taken in their common and ordinary
sense. The ordinary meaning of wearing apparel is vesture,
garments, dress; that which is worn by or appropriated to
the person. Ornaments may be so connected and used with
the wearing apparel as to belong to it. There are implements,
such as pencils and penknives, carried about the person but
not connected with the wearing apparel. These are not to
be considered as clothing. To which class does a watch
belong? It may not properly be called an implement, for
it is used merely to look at. Neither is it used as clothing
or vesture (wearing apparel or "wardrobe"). The .judge
deduced the conclusion that the watch did not pass under the
phrase "wearing apparel."
If the context of the will of Mrs. Traylor did not show
clearly that she intended a limitation or restriction of her
bequest to articles of bodily vesture, the authorities cited
would render the conclusion inevitable, but the terms of the
will, in this instance at least, are plain enough to exclude
"ornaments" from the bequest of the "wardrobe."
The Principal Case was Affirmed by the supreme court in 7.5 Cal.
189, 16 Pac. 774.
Estate of McLaughlin (No. 2). 257
Estate of CHARLES McLAUGHLIN, Deceased (No. 2).
[No. 3,061; decided April .5, 3 887.]
Probate Court — Jurisdiction. — The Superior Court, sittiag in pro-
bate, cannot exercise other than purely probate jurisdiction; its ju-
risdiction, as succeeding the powers of the former probate court, is
not enlarged.
Revocation of Probate Because Obtained by Fraud. — The superior
court, sitting in probate, has no jurisdiction to revoke the probate
of a will because procured by fraud or artifice; the remedy of the
party aggrieved is by independent suit in equity.
Charles McLaughlin died in San Francisco, on December
13, 1883, leaving a will, bearing date February 8, 1866, with
a codicil executed December 22, 1869.
The operative portions of the will and codicil made Kate
D. McLaughlin, wife of the testator, his sole devisee, legatee
and executrix.
The heirs of the decedent were his widow, above named;
a brother, named Michael McLaughlin; a niece, named Mary
Grace McLaughlin, and two sisters, named respectively Ellen
J. Hogan and Arabella Hinkle.
On January 9, 188-4, the will was filed, together with a
petition for its probate and the appointment of Mrs. Kate
D. McLaughlin as executrix. Within due time, the above-
named heirs (with the exception of the widow, the petitioner)
filed written grounds of opposition to the will and codicil,
and to their probate, contesting the same.
Thereafter, and before the sixteenth day of June, 1884, the
opposition on the part of said heirs, was v/ithdrawn by
them, and their contest dismissed ; and on the last-named day
the will and codicil were admitted to probate, and the peti-
tioning widow appointed executrix.
On June 15, 1885, two of the heirs, Arabella Iliukle and
Ellen J. Hogan filed a petition for the revocation of the
probate.
On March 16, 1886, the executrix filed her answer thereto,
and on September 18, 1886, the matter came on for hearing.
Prob. Dec, Vol. I — 17
258 Coffey's Probate Decisions, Vol. 1.
It was continued from time to time until October 6, 1886,
when the executrix moved for judgment on the pleadings.
This motion was met by a counter-motion on the part of the
contesting heirs, for leave to file an amended petition. The
latter motion was granted and the former denied, and on said
day the amended petition was filed.
On October 26, 1886, the executrix filed her notice of motion
to strike out certain portions of the amended petition, specified
in the opinion of the court below. The motion was thereafter
argued and submitted to the court, and granted on April 6,
1887.
The matter sought to be stricken out, and stricken out —
was in substance to the following effect:
It was alleged that the contestants and the other heirs
(excepting the widow) had filed their contest to the will
and codicil, and to their probate, in due time, as hereinabove
stated.
That the executrix filed her answer to the contest, and
a trial by jury had been demanded, and the widow had
been appointed special administratrix until the petition for
probate should be determined.
That certain real estate, of the value of about $200,000,
owned by the decedent, was, at the time of his death, held
in secret trust by Tully R. Wise, his attorney and the attor-
ney for the executrix ; and that at said time certain personal
property of the decedent, of the value of about $800,000,
was held in trust by his widow, and that this personal prop-
erty, as also all books of account, stocks, bonds, etc., of the
decedent, passed into the possession of the widow at the
time of decedent's death, and remained in her exclusive con-
trol until the filing of the inventory on May 11, 1885.
That the petition for probate alleged the value of the
estate to be $1,000,000, while the widow knew it to be of far
greater value ; and that she has continuously and persistently
concealed its true value from the contestants and the court,
and that contestants have had no knowledge or means of
knowledge as to its value, except such as the executrix fur-
nished them.
Estate of McLaughlin (No. 2) . 259
That while the contest was pending, the executrix made
overtures to contestants and set on foot negotiations to
purchase and secure their rights and interests in the estate,
as the heirs of deceased.
That while such negotiations were pending, and for the
purpose of acquiring accurate information as to the value of
the estate, so as to make a just and intelligible sale of their
interests, contestants requested the executrix to furnish them
with a statement in writing of the assets and liabilities of
the estate.
That she furnished them a statement showing the value
of the estate, over its liabilities, to be about $240,000, a copy
of which is attached to the amended petition and made part
thereof, marked Exhibit "A."
That the executrix represented this to be a true and
correct exhibit of the actual condition of the estate, and
that she further caused it to be represented to contestants
that the estate is not large, and is involved in litigation,
and that the litigation would consume nearly the whole estate,
and in the end it would be worth little or nothing, and that
$23,000 was the fair and reasonable value of the interest
of each of the contestants as such heirs.
That the contestant, Ellen J. Hogan, at that time resided
in Illinois and was never in California, and was sixty-three
years of age ; had no business experience, and was ignorant
and illiterate, being unable to read or write, and that con-
testants were wholly unacquainted with the character or
value or extent of the estate.
That they relied upon the information given them by the
executrix, and so relying and supposing that she had made
a full and perfect disclosure of the property of the estate,
and had concealed nothing, and induced thereto by her state-
ments and representations, contestants consented to sell the
whole of their interest in the estate to the widow for $23,000
each, and to withdraw and dismiss their contests to the
probate of the will and that without reliance upon such
statements they would not have done so; and that accordingly
they executed a conveyance of their interests and dismissed
their contests.
260 Coffey's Probate Decisions, Vol. 1.
That thereafter, the executrix returned her inventory,
and procured the court, by some means, to appoint as two
of the appraisers two persons who were in her employ.
That on the eleventh day of May, 1885, the inventory and
appraisement was filed; that the estate was appraised at
$2,476,162.72 by said appraisers.
That the newspapers of this city and county published the
appraised value of the estate, and therefrom contestants for
the first time learned that the estate was worth more than
$2,000,000 over and above what the executrix had repre-
sented its value to be.
That upon examination of the inventory, contestants
learned for the first time of the large and valuable por-
tions of the estate held in trust by said Tully R. Wise and
by said widow, and that said two appraisers were her em-
ployees.
That the inventory does not contain all the property of
the estate, and the appraisement is far below its actual
value, and that its real value is upward of $4,000,000.
The last paragraph sought to be stricken out concludes :
"By reason of the foregoing facts, it is manifest that the
foregoing conveyances from these petitioners to Kate D. Mc-
Laughlin, wherein and whereby they conveyed to said Kate
D. McLaughlin their interests in the estate of said Charles
McLaughlin, were all procurefl by the fraud, imposition and
deceit of said Kate D. McLaughlin, and that by reason
thereof said conveyances are, as to these petitioners, in
equity, null and void."
S. M. Wilson, L. D. McKisick, for motion.
D. M. Delmas, J. B. Mhoon and Flournoy & Mhoon, con-
tra.
COFFEY, J. This is a motion to strike out certain por-
tions of the amended petition of Arabella Hinkle and Ellen
J. Hogan to revoke the probate of the will of Charles Mc-
Laughlin, deceased. The parts of the petition which it is
proposed to strike out are all of paragraphs 6, 7, 8, 9, ex-
cept lines 20 to 27 inclusive, on the seventh page of the peti-
tion, and all of paragraphs 10 and 11, also all of the paper
Estate of McLaughlin (No. 2). 261
marked Exhibit "A," and annexed to said amended peti-
tion and made a part thereof.
If this motion should prevail, the petition will then con-
tain allegations (1) of the time and place of the death of
Charles ]\IcLaughlin ; (2) of his residence at the time of
his death; (3) the persons interested iii his estate; (4) the
value of the property left by him; (5) the filing of the
paper purporting to be a will with codicil, and of a petition
for the probate thereof, and for the appointmnet of the
proponent as executrix; (6) the admission of said paper
to probate, and the appointment of the proponent as execu-
trix, her qualification as such executrix, and that she con-
tinues acting as such executrix: (7) allegations (paragraph
12 of amended petition) that said will so probated was not
executed, attested and published as required by law; that it
was not an olographic will, and was not subscribed at the
end thereof by said McLaughlin in the presence of both the
attesting witnesses thereto ; that the signature of the said
McLaughlin was not acknowledged to said witnesses to have
been made by him or by his authority; that the attesting
witnesses did not sign their names at the end of said paper
at the request of said McLaughlin, or in his presence, or in
the presence of each other, or at all; that said will is not
the last will of said Charles McLaughlin; that said will was
by him in his lifetime revoked; that said will was by said
McLaughlin, in his lifetime, torn, canceled, obliterated and
destroyed, with the intent and for the purpose of revoking
the same; that said will was never published by said Mc-
Laughlin as his will; that said will so filed for probate on
the 9th of January, 1884, is not the last will of said Mc-
Laughlin ; but that he, many years subsequent to the date of
said paper, to wit, on the 12th of October, 1878, made,
executed and published another and different will, where-
by the said IMcLaughlin revoked and annulled the said paper
presented and filed on the 9th of January, 1884, by said
Kate D. McLaughlin.
The grounds of the motion nre that each of the first
above enumerated portions of the amended petition are
irrelevant and redundant within the meaning of section 453
of the Code of Civil Procedure of the state of California ;
262 Coffey's Probate Decisions, Vol. 1.
and on the further ground, that said portions of said
amended petition are wholly immaterial and irrelevant to
the proceedings provided for in sections 1327 and 1328 of
the Code of Civil Procedure of this state, and contrary to
the same, and are not matters of probate, or within the
jurisdiction of this court sitting as a court of probate.
Section 1327, Code of Civil Procedure, reads: "When a
will has been admitted to probate, any person interested
may, at any time within one year after such probate, con-
test the same or the validity of the will. For that purpose
he must file in the court in which the will was proved a
petition in writing containing his allegations against the
validity of the will, or against the sufficiency of the proof,
and praying that the probate may be revoked."
For the purpose of such application he need only put in
issue (1) the competency of the decedent to make a last
will and testament; (2) the freedom of the decedent at the
time of the execution of the will from duress, menace, fraud
or undue influence; (3) the due execution and attestation
of the will by the decedent, or subscribing witnesses; (4)
any other question substantially affecting the validity of the
will.
This court sitting in probate may consider only the
will and the sufficiency of the proofs upon its probate. It
cannot exercise other than purely probate jurisdiction. If
the judgment or order was obtained by the employment of
frauds or artifices such as would justify a court of equity in
annulling it, the remedy of the party aggrieved is by in-
dependent action in equity. The matter has passed beyond
the jurisdiction of the superior court as a court of probate:
Dean v. Superior Court, 63 Cal. 477.
The jurisdiction of the superior court, as succeeding to
the powers of the probate court, is not enlarged. In such
cases courts of equity have jurisdiction to afford proper re-
lief; and, if it be true that the probate court was imposed
upon, and induced to make a decree which it would not
otherwise have done, resort must be had to a court of equity
for relief: Estate of Hudson, 63 Cal. 454.
This is a statutory proceeding for a specific purpose; it
has its scope and limitations, and can go no further. The
Estate of McLaughlin (No. 2). 263
jurisdiction of the probate judge, relating to revocation of
probate, is wholly statutory. In exercising the power, he
can in no way alter or disregard the provisions of the stat-
ute : Pryer v. Clapp, 1 Dem. (N. Y.) 390.
It follows, therefore, that all the parts of the petition
assailed by this motion should be struck out as not within
the jurisdiction of this court sitting in probate. Motion
granted.
The Conclusiveness of the Probate of a Will, when attacked on
the ground of fraud, is a question that recently has been before
the supreme court of California in Estate of Davis, 151 Cal. 318, 121
Am. St. Eep. 105, 86 Pac. 183, 90 Pac. 711; Tracy v. Muir, 151
Cal. 363, 121 Am. St. Eep. 117, 90 Pac. 832.
RELIEF IN EQUITY FROM THE ORDERS AND DECREES OF
PROBATE COURTS.
The Power of Courts of Equity to Grant Relief from the orders ;
and decrees of probate courts, in case of fraud or other ground of '
equitable jurisdiction, has often been recognized, so that it may !
safely be affirmed that the orders and decrees of courts of probate i
may, as a rule, be relieved from by independent suits in equity under •
the same circumstances, to the same extent, and subject to the same
limitations as relief may be had from other judicial determinations: .
Shegogg V. Perkins, 34 Ark. 117; Silva v. Santos, 138 Cal. 536, 94 Am.—^
St. Rep. 45, 71 Pac. 703; Gafford v. Dickinson, 37 Kan. 287, 15 Pac.
175; Grady v. Hughes, 80 Mich. 184, 44 N. W. 1050; Searles v. Scott,
14 Smedes & M. 94; Foute v. McDonald, 27 Miss. 610; Froebrich v.
Lane, 45 Or. 634, 106 Am. St. Rep. 634, 76 Pac. 351. Thus equity has
jurisdiction to set aside orders in probate procured by the fraudulent
suppression of the decedent's will: Ewing v. Lamphere, 147 Mich. 659,
118 Am. St. Rep. 563, 111 N. W. 187.
Decrees Settling Accounts. — The most familiar application of the
rule just stated relates to orders and decrees settling the accounts
of administrators, executors, and guardians, and of trustees perform-
ing analogous duties. These settlements, when once made and ap-
proved by courts of competent jurisdiction, have the force of res judi-
cata both at law and in equity, and will not be vacated or annulled
by courts of equity, except upon the establishment of some well-rec-
ognized ground for equitable relief: Alexander v. Alexander, 70 Ala.
357. The temptation to fraud is, however, not less in these cases
than in others coming before courts, and the opportunity for exer-
cising it is much greater than in litigation where all of the parties
are generally well informed both respecting the facts of the contro-
versy and the legal rights attending them, and furthermore, arc rep-
264 Coffey's Probate Decisions, Vol. 1.
resented by counsel attentive in safeguarding their interests. So,
though there is no fraud, there may be accident or mistake such as
authorize the granting of relief from other judicial determinations.
"The courts of chancery have no power to take such cases out of
probate courts, for the purpose of proceeding with the administration.
But their powers and functions to relieve against fraud, accident,
mistake, or impending irremediable mischief is universal, extending
over suitors in all of the courts and over the decrees in those courts ob-
tained by fraud, or rendered under circumstances which render it in-
equitable that they should be enforced. Hence, any fraud in the
settlements of administrators or executors may be corrected": Eein-
hardt v. Gartrell, 33 Ark. 727; Shegogg v. Perkins, 34 Ark. 117;
Jones v. Graham, 36 Ark. 383; Green v. Creighton, 10 Smedes & M.
159, 48 Am. Dec. 742; Oldham v. Trimble, 15 Mo. 225; Dingle v. Polliek,
49 Mo. App. 479; Froebrich v. Lane, 45 Or. 13, 106 Am. St. Eep. 634,
76 Pae. 351; Bertha Z. & M. Co. v. Vaughan, 88 Fed. 566. If trustees
under a will, with intent to defraud the person benefited, present a false
account and secure its settlement by the court, they are guilty of
fraud upon the court extrinsic to the case, as well as upon the bene-
ficiary, and if he has no knowledge of the fraud until after the expir-
ation of the time for moving to vacate the order of settlement
or for appealing therefrom, he may maintain a suit in equity to
compel the trustees to pay the amount of which he has been de-
frauded by the settlement: Aldrich v. Barton, 138 Gal. 220, 94 Am.
St. Eep. 43, 71 Pac. 169. The same principles apply to a decree set-
tling the account of the guardian of an infant or incompetent person,
who, through fraud or mistake has failed to account for the funds
or assets of his ward: Nelson v. Cowling, 77 Ark. 351, 113 Am. St.
Eep. 155, 91 S. W. 773; Willis v. Eice, 141 Ala. 168, 109 Am. St.
Eep. 26, 37 South. 507; Silva v. Santos, 138 Cal. 536, 94 Am. St.
Eep. 45, 71 Pac. 703; Anderson v. Anderson, 178 111. 160, 52 N.
E. 1038; Neylans v. Burge, 14 Smedes & M. 201. This rule is not
abrogated by statutes purporting to make decrees and orders of
courts of probate conclusive. Such statutes merely place the de-
termination of those courts on the same footing as the determin-
ations of other judicial tribunals without interfering with the
power of equity, in proper cases, to relieve from them: Black v.
Whitall, 9 N. J. Eq. 572, 59 Am. Dec. 423.
In some of the states statutes have been enacted under which the
authority of equity is clearly expressed and which remove any doubts
that otherwise might exist upon this subject. Thus, in Iowa, a sec-
tion of the code provides that mistakes in the final settlement of
accounts may be corrected after the settlement "by equitable pro-
ceedings and showing such grounds as would justify the interference
of the court": Tucker v. Stewart, 113 Iowa, 449, 86 N. W. 371.
These statutes authorize relief to be granted against an order settling
an account, and so does a statute authorizing judgments to be va-
Estate of McLaughlin (No. 2). 265
cated for fraud practiced by the successful parties in obtaining
them: Eoll v. Stum, 20 Ky. Law Rep. 661, 46 S. W. 223. But these
statutes are not essential to the jurisdiction of the court. Thus,
where, as in California, in which state no special statute existed
upon the subject and where its courts of probate were of exclusive
jurisdiction, a bill was filed to compel an accounting for certain
property, notwithstanding its omission from the accounts of an ad-
ministrator, which had been settled by the court. The supreme court
of the United States, reversing the judgment of the trial court, said:
"It is well established that a settlement of an administrator's ac-
count, by the decree of a probate court, does not conclude as to
property accidentally or fraudulently withheld from the account. If
the property be omitted by mistake, or be subsequently discovered,
a court of equity may exercise its jurisdiction in the premises, and
take such action as justice to the heirs of the deceased or to the
creditors of the estate may require, even if the probate court might,
in such cases, open its decrees and administer upon the property
omitted. And a fraudulent concealment of property, or a fraudulent
disposition of it, is a general and always existing ground for the in-
terposition of equity": Grifiith v. Godey, 113 U. S. 89, 5 Sup. Ct.
383, 28 L. Ed. 934.
Orders Directing the Sale of the Property of a decedent or incom-
petent, and confirming such sales when made, are, not less than
those of other judicial tribunals, subject to attack in courts of equity,
not, indeed, for the purpose of showing them to be erroneus or irreg-
ular, but of proving that they were obtained under such circum-
stances that relief ought to be granted against them to the extent
of setting aside the sales, or requiring persons acquiring title under
them to hold it as trustees, or to otherwise so act that equity shall
not be offended: Van Horn v. Ford, 16 Iowa, 578; Grant v. Lloyd,
12 Smedes & M. 191; Hull v. Voorhis, 45 Mo. 555; Lander v. Abra-
hamson, 34 Neb. 553, 52 N. W. 571. Where suit was commenced by
creditors of a decedent to set aside for fraud a sale of his property
authorized and confirmed by a probate court of Louisiana, the su-
preme court of the United States said: "The administration of
General Morgan 's succession undoubtedly belonged to the probate
court of the parish of Carroll, and, in a general sense, it is true that
the decisions of that court in the matter of the succession are con-
clusive and binding, especially upon those who were parties. But
this is not universally true. The most solemn transactions and judg-
ments may, at the instance of the parties, ba set aside or rendered
inoperative for fraud. The fact of being a party does not estop a
person from obtaining in a court of equity relief against fraud. It
is generally parties that are the victims of fraud, whether committed,
in pais or in or by means of judicial proceedings. In such cases the
court does not act as a court of review, nor docs it inquire into
any irregularities or errors in proceedings in another court; but it
266 Coffey's Probate Decisions, Vol. 1.
will scrutinize the conduct of the parties, and if it finds that they
have been guilty of fraud in obtaining a judgment or decree, it will
deprive them of the benefit of it, and of any inequitable advantage
which they have derived under it": Johnson v. Waters, 111 U. S.
640, 4 Sup. Ct. 619, 27 L. Ed. 547.
Decrees of Distribution. — In many of the states, courts whose
orders and decrees we are here considering are authorized and re-
quired, after the settlement of the estate of a decedent, to make,
a decree distributing the property remaining undisposed of among
the heirs, devisees, and other parties entitled thereto, and the stat-
utes conferring this authority impart conclusive effect to the action
of the court, to the end that thereafter there shall be no question
remaining respecting the persons entitled to such property. As in
every other judicial proceeding, fraud may be employed, mistakes
may occur, or accidents may prevent the due presentation of the
claims of the persons entitled, and an adjudication may result which
equity will not allow to be enforced. It may declare that the per-
son in whose favor a decree of distribution is, or his successor in
title with notice, holds the property in trust for an heir or other
person to whom it should have been distributed (Baker v. O'Eiordan,
65 Cal. 368, 4 Pac. 232; Sohler v. Sohler, 135 Cal. 323, 87 Am. St.
Eep. 98, 67 Pac. 282; Maney v. Casserly, 134 Mich. 252, 96 N. W.
478), or in some jurisdictions the decree of distribution may be set
aside so far as inequitable: Benson v. Anderson, 10 Utah, 135, 37
Pac. 256; Beem v. Kimberly, 72 Wis. 343, 39 N. W. 542.
f Orders Granting Probate of Wills and Letters of Administration. —
There is no doubt that courts of equity have always disclaimed
/ jurisdiction over the probate of wills and have refused to cancel or
j set aside such probate, though assailed on the ground that the wills
Lin question were forgeries, and their admission to probate had been
procured by fraud and perjury: Watson v. Bothwell, 11 Ala. 650;
Ewell V. Tidwell, 20 Ark. 136; State v. McGlynn, 20 Cal. 233, 81
Am. Dec. 118; Langdon v. Blackburn, 109 Cal. 19, 41 Pac. 814; Sharp
V. Sharp, 213 111. 332, 72 N. E. 1058; Hughey v. Sidwell's Heirs, 18
B. Mon. 259; Lyne v. Marcus, 1 Mo. 410, 13 Am, Dec. 509; Graland
V. Smith, 127 Mo. 583, 28 S. W. 195, 29 S. W. 836; Loosemore v.
Smith, 12 Neb. 343, 11 N. W. 493; Post v. Mason, 91 N. Y. 539,
43 Am. Eep. 689; McDowall v. Peyton, 2 Desaus. 313; Archer v.
Meadows, 33 Wis. 166; Traver v. Traver, 9 Pet. 174, 9 L. Ed, 91;
Ellis V. Davis, 109 U. S. 485, 3 Sup. Ct. 327, 27 L. Ed. 1006; In
re Broderick's Will, 21 Wall. 504, 22 L. Ed. 599; Allen v. McPherson,
1 H. L, Cas. 191; Kerrick v. Bransby, 1 Brown P. C. 588; and
the same rule has been applied to grants of letters of administra-
tion: Simmons v. Saul, 138 U. S. 439, 11 Sup. Ct. 369, 34 L. Ed,
1054.
Such proceedings as will contests cannot be inaugurated in courts
of equity; the jurisdiction of probate courts is exclusive in such
Estate op McLaughlin (No. 2). 267
matters: Curtis v. Schell, 129 Cal. 208, 79 Am. St. Eep. 107, 61
Pac. 951; Langdon v. Blackburn, 109 Cal. 19, 41 Pae. 814; Sohler
V. Sohler, 135 Cal. 323, 87 Am. St. Rep. 98, 67 Pac. 282; Froebrich
V. Lane, 45 Or. 13, 106 Am. St. Eep. 634, 76 Pac. 351; Benson v.
Anderson, 10 Utah, 135, 37 Pac. 256; Carrau v. O'Calligan, 125 Fed.
657, 60 C. C. A. 347.
There is doubtless much in the opinions in these cases from which
the inference might be supported that, under no circumstances, can
any relief be had in equity from an order admitting a will to pro-
bate. It must be remembered, however, that every ground upon
which relief in equity might be urged is also available in the
probate court in opposition to the probate of a will, and that in most,
If not all, of the states a considerable period of time is allowed after
such probate in which applications for its revocation may be made.
In nearly, if not in all, of the cases cited, the persons seeking re-
lief were guilty of laches in long delaying their application for such
relief, or in failing without adequate excuse in the court having
jurisdiction of the probate of the will to take advantage of the
remedies there available to them. Hence, we think none of these
cases warrants the broad proposition that in no event can relief
in equity be obtained against the probate of a will. Of course, it
may be conceded that, unless specially authorized by statutes, a
court of equity cannot directly cancel or set aside such probate.
This, however, is by no means conclusive of the question. It was,
and perhaps still is, the rule that a court of equity could not and
would not attempt to set aside a judgment at law. This, however
did not prevent it from granting effective relief in personam. Re-
lief of this character would, doubtless, in many instances j)ractically
annul the probate of a will, or, at least, prevent its inequitable oper-
ation. The right to proceed in equity against the probate of wills
has been given by various American statutes which we shall not
here undertake to summarize: Sharp v. Sharo, 213 111. 332, 72 N. E.
1058; Bartlett v. Manor, 146 Ind. 621, 45 N. E. 1060; Pryer v. Howe,
40 Hun, 383; Ocobock v. Eells, 37 N. Y. App. Div. 114, 55 N. Y.
Supp. 1118; Dillard v. Dillard, 78 Va. 208; Couch v. Eastham, 27
W. Va. 796, 55 Am. Rep. 346. Where, upon the trial of an issue
devisavit vel non, a will was set aside, it was held that relief might
be granted in equity and the probate of a will reinstated upon proof
of fraudulent combinations between the proponents and the con-
testants: Smith v. Harrison, 2 Heisk. 230.
The question remains whether, though the probate of a will can-
not be set aside in equity, some other adequate relief niay not be
there obtained, as by declaring the party receiving the benefit of the
will to be a trustee holding in trust for those who have been de-
frauded by its probate. That this may be accomplished has been
intimated in certain English and American cases: Barnesly v. Powell,
I Ves. Sr. 284; Sohler v. Sohler, 135 Cal. 323, 87 Am. St. Rep. 98,
268 Coffey's Probate Decisions, Vol. 1.
67 Pac. 282; and necessarily determined in Smith v. Boyd, 127 Mich.
417, 86 N. W. 953. The bill in this case was to set aside certain
codicils to a will on the ground of fraud, and for an accounting.
A demurrer to the complaint was overruled, and the defendants ap-
pealed. The bill stated that the complainant was a grandchild of
W. M., deceased, and that the defendants were his children and
grandchildren, and they, with the complainant, constituted his heirs
at law; that complainant's mother died when he was about eight
months old, and that at the age of seven he went to live with
his grandfather, with whom he remained until the death of the lat-
ter; that the grandfather, when complainant was five years of age,
made a will, and that several years later, and when the grandfather
was in feeble health and of unsound mind, he was, by undue in-
fluence, fraud, and deceit, induced to change his will to the preju-
dice of the complainant; that in July, 1889, the grandfather died,
and the will and codicils were admitted to probate on the petition of
one of the defendants; that the complainant had no general guardian;
that his father was absent from the state; that no guardian ad
litem was appointed, and that complainant had no knowledge of
the proceedings in the probate court. The defendants, in support
of their demurrer, insisted that the proceeding in the probate court
was substantially in rem, and that the remedy was by appeal. The
supreme court affirmed the judgment overruling the demurrer to the
bill apparently on the ground that the complainant was without any
remedy in the probate court, and that his case was to be treated
substantially as if it were one to set aside the settlement of an
account in the probate court when obtained by fraud. So far as
the opinion of the court shows, there was no consideration by it of
the English and American authorities with which its conclusions
seemed to conflict.
" The Limitations upon the Right to Obtain Relief in Equity from
orders and decrees of probate courts and other tribunals exercis-
I ing a like jurisdiction is the same as when relief is sought from judg-
\ ments at law. Equity will not assert a mere revisory jurisdiction
by attempting to correct or relieve from mere errors or irregulari-
ties, there being otherwise no sufficient ground for the interposition
of equity: Seals v. Weldon, 121 Ala. 319, 25 South. 1021; Greely
Burnham G. Co. v. Graves, 43 Ark. 171; Dajy_X!_E£finiej_86_CaL_552j
> 21 Am. St. Eep. 61, 25 Pac. 67; Eatliff v. Magee, 165 Mo. 461, 65 S.
/ W. 713; Froebrich v. Lane, 45 Or. 13, 106 Am. St. Rep. 634, 76 Pac.
'' 351; Gee v. Humphries, 28 S. C. 606, 5 S. E. 615; Central Nat. Bank
v. Fitzgerald, 94 Fed. 16. Nor will it act where the complainant
still has an adequate remedy in the courts having jurisdiction of
the estate: Hankins v. Layne, 48 Ark. 544, 3 S. W. 821; Ladd v.
j, Nystol, 63 Kan. 23, 64 Pac. 985j]]nor where he has been guilty of
laches, either in not presenting his claims and not pursuing his rem-
edy in that court, or in not seeking his remedy in equity within a
Estate OP McLaughlin (No. 2). 269
reasonable time after having notice of his rights and of the wrongs
of which he complains. In other words, he must always aver and
prove facts which excuse his not appearing and protecting his in-
terests in the court of probate: Moore v. Lesueur, 33 Ala. 237;
Lyne's Admr. v. Wann, 72 Ala. 43; Boswell v. Townsend, 57 Ala.
308; Tynan v. Kerns, 119 Cal. 447, 51 Pac. 693; Froebrich v. Lane,
45 Or. 15, 106 Am. St. Rep. 634, 76 Pac. 351; and where sufficient
cause exists for resorting to equity, he must proceed with reason-
able diligence; otherwise relief will be denied him because of his
laches: Hankins v. Layne, 48 Ark. 544, 3 S. W. 821; Tucker v.
Stewart (Iowa), 86 N. W. 371; Duryea v. Granger's Estate, 66 Mich.
.393, 33 N. W. 730; Williams v. Petticrew, 62 Mo. 460; Slaughter v.
Cannon, 94 N. C. 189; Handley v. Snodgrass, 9 Leigh, 484; Hays v.
Freshwater, 47 W. Va. 217, 34 S. E. 831; Eames v. Manly, 54 C. C.
A. 561, 117 Fed. 387.|_Furthermore, if fraud is relied upon, it musf^
be extrinsic or collateral to the questions examined and determined \
in the adjudication complained of: Gruwell v. Seyboldt, 82 Cal. 10, \
22 Pac. 938; In re Griffith, 84 Cal. 107, 23 Pac. 528, 24 Pac. 381; j
Hanley v. Hanley, 114 Cal. 690, 46 Pac. 736; Mulcahey v. Dow, 131 '
Cal. 73, 63 Pac. 158; Sohler v. Sohler, 135 Cal. 323, 87 Am. St. Rep. 98,
67 Pac. 282. The strict application of this rule must prevent the
award of all relief in equity, for such relief is never granted, unless
the adjudication complained of is unjust, and the only method by
which its unjustness can be established is by re-examination of the
issues involved. Thus, where an executor or administrator presents
and obtains an allowance of his accounts, and relief in equity is
sought therefrom, it must always be alleged and proved that the ac-
count as presented and allowed is unjust, as well as that there was
some fraud, accident, or mistake to which the allowance was due,
and yet all -the cases cited in the second paragraph of this note show
that, in a proper ease, relief may be obtained, though it must neces-
sarily involve a re-examination of the question. The same may truly
be said where relief is sought and obtained from a decree of distribu-
tion or an order directing the sale of property of a minor or decedentj
In no part of the proceedings in probate is there more temptation
to fraud or more opportunity to successfully employ it than in
proceedings to set aside to the widow property to which she claims
to be entitled, either because it was a homestead of the decedent
selected by him in his lifetime, or ought to be selected as ht>r home-
stead because he had never made any selection. There are several
cases denying relief from orders setting aside a homestead on the
ground that the fraud complained of was not extrinsic, and that the
court hence could not proceed without the re-examination of is-
sues already tried and determined: Fealey v. Fealey, 104 Cal. 355,
43 Am. St. Eep. Ill, 38 Pac. 49; Wickersham v. Comerford, 104
Cal, 494, 38 Pac. 101; Hanley v. Hanley, 114 Cal. 690, 46 Pac. 736.
The case last cited is an extreme one, and, if carried to its logical
270 Coffey's Probate Decisions, Vol. 1.
result, should prevent relief being granted in nearly, if not in all,
cases where fraud is practiced in probate proceedings. The action
was brought to set aside a decree in the administration of the es-
tate of Patrick Hanley, deceased, by which certain property was set
aside to his widow as a homestead; and the complaint, among other
things, alleged that the premises were the separate property of the
deceased, that his widow willfully, falsely, and fraudulently rep-
resented to the court, and testified, that they were community prop-
erty; and also falsely represented to it that a certain declaration
of homestead had been filed on the premises while she and her de-
ceased husband were actually residing thereon; and it was further
contended that the complainants had no notice of the proceeding to
set aside the homestead. A demurrer to tiie complaint was sustained,
on the ground that the proceeding, being in rem, all parties inter-
ested were bound by it without personal notice, and that the fraud
alleged was not extrinsic or collateral to the matter which was tried
and determined by the court. As the question was presented upon
demurrer, there was no suggestion that the widow testified as she
did through any mistake; on the contrary, the demurrer necessarily
admitted that she acted willfully, fraudulently, and falsely. Pro-
ceedings of this character are ordinarily ex parte, and we do not
think that the rule to which we refer should be applied to them
where such is the case. As those who are adversely interested are
not present in court and usually have no actual knowledge of the
proceeding, it ought to be regarded as a fraud, entitling them to
relief when one, taking advantage of their absence, willfully misrep-
resents facts to the court, though the facts so represented involve
the merits and go to the very foundation of the proceedings. The
case of Sohler v. Sohler, 135 Cal. 323, 87 Am. St. Kep. 98, 67 Pac.
282, though it does not profess to overrule any of the decisions re-
ferred to, seems to be necessarily in conflict with them, unless it can
be said that the principles applicable to decrees of distribution dif-
fer from those applicable to orders setting apart homesteads. In
the case last cited relief was obtained from a decree of distribution,
on the ground that a widow conspired with her son, who was not the
son of the decedent, to procure for him a share of the latter 's prop-
erty as one of his children, filed a petition naming him as such, and ob-
tained a decree in accordance therewith. The court proceeded, how-
ever, partly upon the ground that the widow, being the executrix
of the decedent, was the trustee of all the heirs and of other par-
ties in interest, was the mother and natural guardian of such heirs,
and was obligated to protect their legal rights and see that the legal
claims to the estate were properly presented to the probate court.
Estate of Scott. 271
Estate of ANGELIA R. SCOTT, Deceased.
[No. 19,473; decided August 29, 1898.]
Insanity of Testator — Evidence and Burden of Proof. — The legal
presumption is in favor of the sanity of a testator, and the burden
of proof is on the contestant of his will to demonstrate the con-
trary; and if the contestant prevails, in a case of doubt, it must
be by a preponderance of proof, and the number. Character and in-
telligence of witnesses, and their opportunity for observation, should
be taken into account.
Witnesses — Credibility as Affected by Station in Life. — Persons
employed in domestic service and other categories of honest labor
are entitled, as witnesses, to credence equally with those who plume
themselves on their higher level, affecting to look down on those
who work for wages as. inferior. Before the law there is no such
distinction, and in courts of justice all must be co-ordinated, irre-
spective of the accidents of artificial and conventional social rela-
tions.
Witnesses — Manner of Testing Credibility. — Each witness is a man
or woman to be treated as an individual, a moral unit, tested for
integrity and veracity on his merits or her title to credit by the in-
herent and extrinsic elements of belief, or the circumstantial criteria
of credibility. These are the only considerations for the court in
weighing evidence.
Insane Delusions — Business Capacity. — Business capacity may co-
exist with monomania or insane delusions.
Insane Delusions — Vulgarity of Testatrix. — Where the vulgarity in
behavior and speech of a testatrix is relied upon to establish the
presence of insane delusions, her whole c'onduct, at home and aboard,
should be considered, and not merely her conduct within her own
house, the alleged acts of immodesty in this case being confined to
the home premises of the testatrix, while her behavior abroad was
not subject to adverse criticism.
Insane Delusions — Eccentricities not Suddenly Acquired. — Eccentric
habits of speech, if not suddenly acquired, are not evidence of in-
sanity.
Expert Evidence — Its Nature and Value. — Expert evidence is really
an argument of the expert to the court, and is valuable only with
regard to the proof of the facts and the validity of the reasons ad-
vanced for the conclusions.
Insane Delusions — Suspicions as to Husband's Constancy. — Where
there was at least one instance in the conduct of a husband which
might arouse in the mind of the wife a suspicion as to his con-
stancy, the fact that her suspicions may have been unjust and her
272 Coffey's Probate Decisions, Vol. 1.
inferences too general, is merely an error of logic, and not an evi-
dence of insanity or of an insane delusion. She has a right to in-
fer, however erroneously, or from inadequate premises, to a universal
conclusion.
Insanity — Faulty Logic. — False logic or faulty ratiocination is far
from the manifestation of insanity, so long as the process is formally
correct, not incoherent or inconsequential.
Insane Delusions — Fear of Poisoning. — A fear of poisoning on the
part of a testati'ix, even though a delusion, must, in order to in-
validate her testamentary act, be continuous, persistent, and opera-
tive upon her volitional capacity.
Insane Delusions — Fear of Poisoning. — The mistaken belief of a
testatrix, when suffering with chronic stomach trouble, that her food
has been tampered with, does not, as a matter of law, amount to
an insane delusion.
Insanity — Unreasonable Suspicions.— Unfounded and unreasonable
suspicions are not insanity.
Insanity — Insomnia. — The mind of a testatrix is not necessarily
diseased because she is at times troubled with insomnia while af-
flicted with an intestinal ailment.
Insane Delusions — Unfounded Suspicions. — The sanity of the testa-
trix in this case being questioned because she suspected that her
husband was unfaithful to her, and that he was attempting to poison
her and to send her to an insane asylum, the court observed: There
is a very large class of people whose sanity is undoubted, who are
unduly jealous or suspicious of others, and especially of those closely
connected with them, and who upon the most trivial, even whimsical,
grounds wrongfully impute the worst motives and conduct to those
in whom they ought to confide. This insanity, which is developed
in a great variety of forms, is altogether too com;non, and too many
persons confessedly sane are to a greater or less degree afflicted with
it, to justify us in saying that because the deceased was so af-
flicted she was insane, or the victim of an insane delusion.
Insane Delusions — Suspicions — Evidence and Burden of Proof. — The
line between unfounded and unreasonable suspicions of a sane mind
and insane delusions is sometimes quite indistinct and difficult to
define. However, the legal presumption is in favor of sanity, and on
the issue of sanity or insanity the burden is upon him who asserts
insanity to prove it. Hence, in a doubtful case, unless there ap-
pears a preponderance of proof of mental unsoundness, the issue
should be found the other way.
Insane Delusions — Suspicions — Tests of Insanity. — Suspicion is the
imagination of the existence of something, especially something
wrong, without proof, or with but slight proof; it is an impression
in the mind which has not resulted in a conviction. It is svnonvmcus
Estate of Scott. 273
with doubt, distrust, or mistrust — the mind is in an unsettled con-
dition. Suspicion existing, slight evidence might produce a rational
conviction or conclusion; this without evidence, however slight, would
be a delusion. Is there evidence, however slight? This is the test.
The suspicion may be illogical or preposterous, but it is not, there-
fore, evidence of insanity.
Insane Delusions — Suspicions as to Husband's Constancy. — If a
wife has evidence, though slight, on which to base a suspicion of her
husband 's unfaithfulness, and has no settled conviction on the sub-
ject, her suspicion does not amount to an insane delusion.
Insane Delusion — Conspiracy to Confine Wife in Asylum. — The con-
tention in this case that the testatrix was afflicted with an insane
delusion in that she believed her husband conspired to confine her
in an insane asylum, was found by the court to be unsupported by
the evidence, especially in view of the fact that the husband had
twitted her of being crazy and threatened to break her will.
Insane Delusions — Testimony of Business Men. — The value of the
testimony of business men and acquaintances, acquired in commercial
dealings with a person alleged to be the victim of insane delusions, is
favorably regarded by the courts, on the issue of insanity.
Testamentary Capacity — Inquisition Before Execution of Will. —
The examination by medical experts of a testatrix prior to her exe-
cution of her will, for the purpose of determining her testamentary
capacity, is discussed by the court, both as a suggestion of insanity,
and as a wise precaution.
Testamentary Capacity — Will as Evidence. — A will may be consid-
ered in proof of its own validity and of the sanity of its maker.
Testamentary Capacity — Suspicion of Husband. — If there are causes
sufficient to induce a sane woman to ignore her husband in her will,
or reduce what otherwise would have been a just allowance, the
fact that she entertains an unjust or an unfounded suspicion in re-
gard to his treatment of her, or an unjust prejudice against him, does
not affect the will nor demonstrate that she is necessarily of un-
sound mind.
Testamentary Capacity — Test for Determining. — The tests of tes-
tamentary capacity are: (1) Understanding of what the testatrix
is doing; (2) how she is doing it; (3) knowledge of her property;
(4) how she wishes to dispose of it; (5) and who are entitled to her
bounty.
Testamentary Capacity — Testimony of Attesting Witnesses. — The
testimony of the attesting witnesses, and, next to them, the testimony
of those present at the execution of the will, are most to be relied
upon in determining the question of testamentary capacity.
Testamentary Capacity — Insane Delusions. — In this case the hus-
band of the testatrix contests her will on the ground that she was
Prob. Dec, Vol. I — 18
274 Coffey's Probate Decisions, Vol. 1.
of unsound mind by reason of being the victim of insane delusions
that her husband was unfaithful, that he was trying to poison her,
and that he was conspiring to confine her in an insane asylu-m, but
the court finds against the contestant and sustains the will.
Morris M. Estee, A. Everett Ball, and Charles A. Shurt-
leff, for contestant, Emerson W. Scott.
A. E. Bolton, C. S. Peery, J. H. Henderson, J. B. Gart-
land, R. E. Houghton, P. G. Galpin, H. M. Owens, and Guy
C. Earl, for proponents and respondents.
E. D. Sawyer, for persons otherwise unrepresented.
COFFEY, J. This is a contest instituted by E. W. Scott
to the probate of certain papers filed herein on December
22, 1897, purporting to be the last will and codicils of
Angelia R. Scott, deceased, the proponents being the execu-
tors named therein, C. S. Tilton, Frank Garcia, Junior, and
C. M. Gerrish, who simultaneously present a petition for
admission to probate and the issue of letters testamentary
to them thereon and thereunder.
The petition for probate sets forth that decedent died on
December 16, 1897, in San Francisco, of which city and
county she was a resident and left estate therein and also
in the counties of Santa Clara and Tulare, consisting of
real and personal property not exceeding $450,000 in ag-
gregate value, all of which was her separate estate; that she
left a will and codicils, copies of which are hereinafter in-
serted in this opinion; that the petitioners named as execu-
tors consent to act; the names of the devisees and next of
kin are given; and it is alleged that decedent had no other
devisees or heirs at law; it is further alleged that decedent
left a husband, E. W. Scott, but no children, and that her
father and mother had predeceased her; it is finally alleged,
in proper phrase and form, that she was of sound mind at
the time of executing the papers propounded and that in
all respects and circumstances her testamentary acts were
free from legal fault or blemish, and, therefore, should be
consummated through the court.
The will and codicils are as follows :
Estate of Scott. 275
"In the Name of God, Amen. I, Angelia R. Scott, of
the City and County of San Francisco, State of California,
being of sound and disposing mind and memory, do make,
publish and declare this my last will and testament.
"I. I give, devise and bequeath to the officers of Apollo
Lodge of the Independent Order of Odd Fellows in the City
and County of San Francisco, and their successors in office, the
sum of Two Thousand (2,000) Dollars, to be by them invested
and the proceeds thereof to be used in the preservation and
care of the cemetery lots in the Odd Fellows Cemetery in the
City and County of San Francisco, in which my late hus-
band, Salvin P. Collins, and my nephew, John Quincy Wor-
mell, are buried.
"II. I give, devise, and bequeath to Horatio Stebbins the
sum of Three Thousand (3,000) Dollars, to be used by him
at his discretion to advance the interests of the First Uni-
tarian Church in this City and County.
"III. I give, devise, and bequeath to Carl Anderson, my
coachman, who has served me faithfully for five years, Five
Hundred (500) Dollars.
"IV. I give, devise, and bequeath my diamond earrings,
one bar pin with one diamond, one finger ring set with three
large diamonds, my chain and charms to my niece, Helen
Garish, and my watch to my niece, Ella Perkins.
"V. I give, devise, and bequeath my cluster diamond
ring and one small solitaire diamond finger ring, the gift
of my late hiLsband, S. P. Collins, to his sister, Mrs. Rachel
Johonnot.
"VI. I give, devise, and bequeath one diamond solitaire
finger ring to Mrs. Frank Garcia, wife of my nephew, Frank
Garcia.
"VII. I give, devise, and bequeath all the rest and
residue of my property as follows : One fiftieth thereof to
each of the following persons, children of my late brother,
Amos P. Wormell. namely : One-fiftieth to Andrew Wor-
mell of Dover, New Hampshire: one-fiftieth to Charles Wor-
mell, of Sunbury, Ohio; one-fiftieth to AVilliam Wormell
of the same place ; one fiftieth to Eugene Wormell of Liver-
more, Maine; one-fiftieth to Lettie AVormell of Colorado;
one-fiftieth to Salvin Ulysses Wormell of Phillips, Maine;
276 Coffey's ProbxVte Decisions, Vol. 1.
two-fiftieths thereof to Louisa E. Roe, daughter of my late
brother, Amos P. Wormell, of Island Pond, Vermont; six-
fiftieths thereof to my sister Mary A. Cowan and her daugh-
ter Amanda Meily, share and share alike; six-fiftieths there-
of to M. S. Chamberlain, nephew of my late husband,
S. P. Collins, now residing at Concord, New Hampshire;
one-fiftieth thereof to Mrs. Rachel Johonnot, sister of my
late husband, residing at Montpelier, Vermont; one-fiftieth
thereof to Florence Swall, wife of George Swall of Moun-
tain View, California, niece of S. P. Collins, deceased; one-
fiftieth thereof to Eugene Wormell, son of my brother Na-
thaniel Wormell, now residing at Seattle, Washington; one-
eighth to my nephew Franlv Garcia ; one-eighth to my niece
Helen Gerrish, wife of Charles Gerrish of Port Townsend,
Washington; one-eighth thereof to Mrs. Ella Perkins, of
Santa Clara County, California, wife of Caleb F. Perkins;
one-tenth thereof to Mrs. Louisa Garcia, my sister; one
fortieth thereof to Chester and Nellie Swall, son and daugh-
ter of George and Florence Swall of Mountain View, Cali-
fornia, share and share alike, two-fiftieths thereof to my
husband, E. W. Scott.
"In case any of my legatees contest the probate of this
will, I, hereby revoke the legacy of such contestant, and di-
rect that such legacy become a part of my estate.
"VIII. I nominate and appoint Charles S. Tilton, Caleb
F. Perkins, and Frank Garcia, Jr., as executors of this my
last Will and Testament without bonds.
"In Testimony Whereof, I have made, published and de-
clared the foregoing as' my last Will and Testament.
"ANGELIA R. SCOTT. (Seal.)
"Signed, sealed, published and declared to be her last
Will and Testament by the aforesaid Angelia R. Scott, in
our presence, who in her presence and in the presence of
each of us, and at her request have hereto set our hands and
seals, as witness this seventh day of November, A. D. 1891.
"JACOB C. JOHNSON, 1519 Van Ness Ave.
"EDWARD H. HORTON, 30 Post Street.
"Whereas, I Angelia R. Scott, by my will subscribed on
the 7th day of November, 1891, appointed Caleb F. Perkins
Estate of Scott. 277
together with Charles S. Tilton and Frank Garcia, Jr., to
be executors of my last Will and Testament.
"Now, then, I hereby revoke the nomination and appoint-
ment of said Perkins as one of my said executors, and it is
my desire that this Codicil be annexed to and made a part
of my last Will and Testament as aforesaid to all intents
and purposes. ANGELIA R. SCOTT.
"Signed, sealed, published and declared to be and as and
for a codicil to her last Will and Testament by Angelia R.
Scott, in our presence, who in her presence, and in the
presence of each of us and at her request have hereto set
our hand and seals as witnesses this 25th day of February,
A. D. 1892. J. C. JOHNSON.
"E. H. HORTON.
"Whereas, I. Angelia R. Scott, of the City and County of
San Francisco, have made my last AVill and Testament in
writing, bearing date the seventh day of November, in the year
of our Lord, one thousand, eight hundred and ninety-one. and
in and by which I give and bequeath to my sister, Mary A.
Cowan and her daughter, Amanda Meily, six-fiftieths of the
residue of my estate (after providing for certain legacies)
to be divided share and share alike between them, and where-
as, since then said Mary A. Cowan has died, and I desire to
revoke so much of said Will as devises six-fiftieths to her
and her daughter Amanda Meily.
"And Whereas, by the same instrument, I have devised
one-fiftieth of said residue to Florence Swall, wife of George
Swall of Mountain View, and since that time said Florence
has died, leaving three children ; and whereas I also devised
to Eugene Wormell, son of my brother, Nathaniel Wormell.
residing at Seattle, Washington, one-fiftieth part of said
residue, and since then he has died, and whereas, I also de-
sire to change the devise to Frank Garcia, of one-eighth of
my estate, and to decrease the amount thereof and whereas
I did devise one-eighth of my said estate to Helen Garish.
Avife of Charles Garish; and I desire to increase the amount
devised to her; and whereas, I did devise one-eighth of the
residue of my said estate to mj^ niece Ella Perkins. I now
desire to devise something to her four children ; and whereas, I
278 Coffey's Probate Decisions, Vol. 1.
now desire to make a bequest to the Old People's Home of
San Francisco, and to the three children of my present
husband, E. W. Scott; and whereas, I desire to revoke the
gift of two thousand dollars to the Apollo Lodge of the
Independent Order of Odd Fellows, and desiring to preserve
the general features of my former will making new dis-
tributions when necessary by deaths which have happened
since the making of that will, I prefer to do this by way of
another codicil to my former Will instead of executing a new
Will; but in any respect in which this codicil shall conflict
with the provisions of my former Will, I fully intend that
this codicil shall control the provisions of the former Will and
that otherwise the former Will and the codicil thereof shall
stand unaffected by it.
"I revoke the bequest I made in my said Will of Two
Thousand Dollars to the Apollo Lodge of the Independent
Order of Odd Fellows, and I give, devise and bequeath Two
Thousand Dollars to the Apollo Lodge of the Independent
Order of Odd Fellows in the City and County of San Fran-
cisco, and I request them to take care of my cemetery lot in
the Odd Fellows Cemetery in this city and County of San
Francisco.
"I give, devise and bequeath the sum of One Dollar to
each of the following persons : To Mrs. Amanda Miley,
daughter of Mary A. Cowan ; to Mrs. Nellie Swall, wife of
George Swall; to Mrs. Eliza Paisley, wife of Donald Paisley,
sister of my late husband.
"I give, devise and bequeath to my maid, Estella Burn-
ham, Five Hundred Dollars if she is in my employment
down to the time of my decease.
"I give, devise and bequeath my emerald finger ring set
with diamonds, and also my large solitaire diamond finger
ring to Mrs. Helen Garish.
"I give, devise and bequeath all the rest and residue of
my estate subject to all unrevoked legacies and bequests o*
my Will, and subject to those herein contained as follows :
"Of such residue, two-fiftieths thereof to my nephew, An-
drew Wormell of Dover, New Hampshire.
"Two-fiftieths thereof to Charles Wormell, of Sunbury,
Ohio.
Estate of Scott. 279
"Two-fiftieths thereof to my nephew, William Wormell of
the same place.
"Two-fiftieths thereof to mj'' nephew, Salvin Ulysses Wor-
mell, of Phillips, IMaine.
"Three-fiftieths thereof to my niece, Louisa E. Roe, of
Island Pond, Vermont, daughter of my brother, Amos P.
Wormell.
"One-fiftieth thereof to Lulu Wormell, of Oakland, daugh-
ter of my nephew Eugene Wormell, now deceased.
"Six-fiftieths thereof to Mortimer S. Chamberlain, resid-
ing at Concord, New Hampshire, nephew of my late hus-
band, S. P. Collins.
''Three-fiftieths thereof to Mrs. Rachael Johonnet, sister
of my late husband, S. P. Collins.
"Three-fiftieths thereof to Ella Perkins, of Santa Clara
County, wife of C. F. Perkins,
"Three-fiftieths thereof to be divided share and share
alike between the four children of said Ella Perkins, or the
survivors of them at my decease.
"Seven-fiftieths thereof to Helen Garish, my niece, wife
of Charles Garish of Port Townsend, Washington.
"Four-fiftieths thereof to my sister, Mrs. Garcia, wife of
Frank Garcia, (senior).
"Three-fiftieths thereof to be divided share and share
alike between the children, now^ living or the survivor of
them, at my death, of Florence Swall, and George Swall, of
Mountain View, California, said Florence Swall being a niece
of my late husband, S. P. Collins.
"Four-fiftieths thereof to Frank Garcia, Jr. son of Frank
Garcia.
"Two-fiftieths thereof to my husband, E. W. Scott.
"One fiftieth thereof to Lloyd N. Scott, for himself, for
his brother, Wesley B. Scott, and his sister, Laura May
Scott, share and share alike; but he is to receive and hold
in trust the shares of Wesley B. Scott and Laura B. Scott.,
invest the same, and use the income or principal, if neces-
sary, for their education and support until both beneficia-
ries shall die or become of age; and in case of death of
either beneficiary the share of such decedent shall be di-
vided equally between the survivors, unless decedent leaves
280 Coffey's Probate Decisions, Vol. 1.
issue him or her surviving:, and in that event the share of said
decedent shall go to said issue.
''One-fiftieth thereof to the Old People's Home of San
Francisco.
"One-fiftieth thereof to the San Francisco Protestant
Orphan Asylum.
"And in case any of my devisees or legatees shall contest
the probate of this Will the bequest or devise to them is
hereby revoked, and the amount bequeathed or divised to
such contestant shall go back and become a part of my es-
tate, and be divided pro rata among the residuary devisees.
"I also nominate and appoint Charles Garish to be an-
other executor of my estate.
"I also revoke the bequest of my one large solitaire dia-
mond finger ring to Mrs. Frank Garcia, formerly wife of,
Frank Garcia, Jr., and I give, devise and bequeath the same
to Helen Garish.
"(Seal) ANGELIA R. SCOTT.
"Signed, sealed and published and declared to be and as
for a codicil to her last Will and Testament by Angelia R.
Scott in our presence, who in her presence and in the pres-
ence, of each of us and at her request, have hereto set our
hands and seals as witnesses this 22nd day of October, A.
D. 1897.
"JACOB C. JOHNSON, 1519 Van Ness Ave.
"EDWARD H. HORTON, 2110 Devisadero St.
"PHILIP G. GALPIN, 1738 Broadway."
The contestant alleges that he is the surviving husband of
deceased, of the age of sixty-one years, and as such survivor
is an heir at law of said deceased and interested in the es-
tate, and is a legatee under the instrument propounded to
the extent of two-fiftieths of said estate. He denies each
and all the matters set forth in the petition for probate ex-
cept the death, age and the residence of decedent. He then
sets up two grounds of opposition and contest: (1) Un-
soundness of mind; (2) Undue influence exercised by Louisa
Garcia, a sister, Helen Gerrish, a niece, and Frank Garcia,
a nephew of said decedent, the undue influence consisting in
falsely representing to decedent that her husband was un-
Estate of Scott. 281
true to her for the purpose of misleading, deceiving, and
prejudicing her against him and controlling her in making
her Will and inducing her to neglect to provide suitably
for him, the natural object of her bounty, and that such false
representations had the purposed effect. The contestant
further alleges that at the time of the alleged testamentary
acts the testatrix was laboring under certain insane delu-
sions, (a) that her husband was untrue to her, (b) that he
was trying to poison her, and (c) that he was engaged in a
conspiracy with others to commit her to an insane asylum,
and that the said Louisa Garcia, Helen Gerrish, and Frank
Garcia in furtherance of their purpose fostered and encour-
aged these insane delusions. All of these allegations are
traversed in due form by proponents and respondents.
Contestant claims a right to institute and prosecute a eon-
test under section 1307, Code of Civil Procedure, as a per-
son interested, as one who would take under the statute of
succession if decedent had died intestate.
Issue having been joined, this contest came on for trial
before the court, a jury being waived, on Tuesday, the
twTntj^-second day of March, 1898, and continued with in-
termissions until Thursday, the nineteenth day of May, 1898,
when after ample argument extending over four days, the
issues were submitted for deliberation and decision.
The entire time of trial, including the taking of testimony
and the audition of argument, was eighty-one hours and
forty-five minutes ; divided as follows :
Examination of witnesses: Sixty-six hours.
Arguments of counsel : P^'ifteen hours and forty-five min-
utes.
There were forty-two witnesses for contestants, thirty-six
for respondents, seventy-eight in all.
These minutiae are material only as intimating the im-
portance imputed to the issues by counsel and their clients
and suggesting the magnitude of the interests involved em-
])loying the energies and abilities of lawyers, of experience
and eminence, whose intellectual resources and professional
skill seemed to be taxed to the utmost in honorable endeavor
1o achieve success for what each in good faith from his point
of view conceived to be the right.
282 Coffey's Probate Decisions, Vol. 1.
It may be that, in these cases, the right might be developed
and determined in a shorter space, but those whose fortunes
are at stake in such a struggle and who bear the brunt of
its expense of time and treasure are more immediately con-
cerned in the calculation of cost than the critics to whom
the result is indifferent, except that it affords a theme for
censorious comment upon the tedious process of eliciting
evidence and the unrestricted scope accorded to advocates in
their examinations and arguments. Keform in this particu-
lar may be necessary, but it must not be so sharp or sudden
as to collide with justice to individual suitors who demand
thoroughness of treatment.
The issues raised by the pleadings are reduced in proof,
as stated by counsel for contestant in final argument, to the
following :
That the testatrix was of unsound mind by reason of cer-
tain delusions, to wit: 1. That her husband was unfaithful;
2. That he was trying to poison her; 3. That he was con-
spiring to confine her in an insane asylum.
If it has been established that any one of these delusions
infected her mind and operated upon the testamentary act,
the will should be set aside.
Added to these delusions were certain peculiarities which
served to aggravate the cardinal crotchets of her cerebral
constitution, to magnify her malady, and to intensify her
insanity, which are thus summed up by counsel in his clos-
ing condensation of the case: (a) She was profane and vul-
gar in her language; (b) She danced perfectly nude before
mirrors; (c) She imagined that she saw visions; (d) She
heard noises in the hall at night; (e) She asked many of
her associates if they thought she was insane; (f) She thus
evidenced her own belief that she was insane; (g) She
sought to be examined by experts before she made her will-
(h) She was inordinately suspicious; (i) She was troubled
with insomnia; and (j) She was insanely jealous; — all of
which symptoms indicate a mind diseased.
The pith of contestant's contention may be stated in his
counsel's words: That the testamentary acts were the prod-
uct of a mind diseased by delusion caused by morbid jeal-
ousy.
Estate of Scott. 283
This, then, is what'we have to consider in this case: Is
it established by the evidence that the mind of decedent was
so far diseased by delusion on the dates of the documents
in dispute as to destroy her tastamentary capacity? The
dates to which this question is addressed are: November 7,
1891, date of the original will; Febniary 25, 1892, date of
the first codicil; October 22, 1897, date of the second and
final codicil.
The legal presumption is in favor of sanity, and therefore,
as is conceded by contestant, the burden of proof is upon
him to demonstrate the contrary, he occupies the affirmative
of the issue in this case, and it is incumbent upon him to
establish the proposition that the testatrix was of unsound
mind by reason of certain delusions, and he claims to have
discharged this obligation by abundant evidence of numer-
ous witnesses.
If contestant prevail, in case of doubt, it must be by a
preponderance of proof ; and the number, character, and in-
telligence of witnesses, and their opportunity for observa-
tion, should be taken into the account: Will of Cole, 49 Wis.
181, 5 N. W. 346; Lee v. Lee, 4 McCord (S. C), 183, 17
Am. Dec. 722.
Criticism was made upon some of the witnesses because
they were assumed to be subordinate socially to others sup-
posed to belong to a superior caste, but we have no such
Hindoo scale in our American tribunals, and persons em-
ployed in domestic service and other categories of honest
labor are entitled to credence equally with those who plume
themselves on their higher level affecting to look down on
those who work for wages as inferior; but before the law,
human and divine, there is no such distinction, and in
courts of justice all must be co-ordinated irrespective of the
accidents of artificial and conventional social relations.
Each witness is a man or woman to be treated as an in-
dividual, a moral unit, tested for integrity and veracity on
his merits or her title to credit by the inherent and intrinsic
elements of belief, or the circumstantial criteria of credi-
bility. These are the only considerations for the court in
weighing evidence.
284 Coffey's Probate Decisions, Vol. 1.
It is claimed by counsel for contestant that at the time of
the date of the original will, November 7, 1891, testatrix
was laboring under well-defined delusions, in relation to her
husband and affecting her testamentary capacity. These
delusions had their origin prior to that date, as is sought to
be shown by the testimony of witnesses for contestant, and
covered the years 1889, 1890, and 1891, forming a complete
chain showing their continuation and persistence; they had
their inception in unjust and unfounded suspicions and
grew to such an extent and proportion as to render her ir-
rational and insane, a victim of insane delusion, which, as
said by the expert witness Dr. F. W. Hatch, often arises
from misinterpreted suspicions, the gradual building up of
which finally results in a fixed delusion, a condition that is
not amenable to argument nor mutable by reason; and it is
further claimed by counsel that the proof for proponents
supports the theory of contestant as" to the existence and
effect of these delusions and is, in the main, corroborative
of his contention.
Angelia R. Scott died on December 16, 1897, rising sixty-
five years of age, having been born July 14, 1833, in Strong-
ville, Maine ; she was over fifty-eight years when she made the
original will, over fifty-nine years when she made the first
codicil, and over sixty-four years when the final paper was
executed, October 22, 1897. She was the widow of Salvin
P. Collins, when on March 6, 1889, at the age of fifty-five
years, she married Emerson W. Scott, a widower, fifty-two
years old, several years her junior. Each had passed the
period of probation in the spousal relation; they were no
longer young ; both were mature and experienced in married
life, with knowledge of the weakness as well as the worth of
the opposite sex, with no general illusions of the perfectness
of the individual man or woman ; what faults they had were
carefully concealed, and each was concerned to appear to
best advantage in the presence of the other, as persons seeking
each other's society in the way of sparking usually exhibit
only the favorable aspects of their character, and are adroit
in avoiding the exposure of the shady and the seamy sides
of selfishness and coarseness in the grain of the garb of human
Estate of Scott. 285
nature; such is life in love previous to marriage which is, as
we are advised by one of the counsel, "a leap in the dark,"
which young men and maidens should not venture upon too
rashly, but these parties had each survived their first venture
and hesitated not to embark upon another. She had been
well reared, her parents were persons of respectability and
refinement and afforded her the means and opportunity of
education suited to her situation and sex ; she had come to
California at an early date, in the primitive and pioneer
period of American settlement and domination, and had mar-
ried her first husband, Mr. Collins, a well-known restaurateur
and wine merchant, who founded an establishment which still
bears his name and continues flourishing and perpetuating
the goodwill and good cheer that brought him local fame and
the considerable fortune that made his wife a wealthy widow,
and which was at the time of her second marriage some com-
pensation for the impairment of those graces of person which
caused her to be envied of her own sex and the admired of
the other, for she is described as having been endowed with
physical form and symmetrical proportions, with stately
presence and dignified carriage, conscious of her charms,
proud and vain of her beauty, alive to and avaricious of
admiration and jealous of attentions bestowed by her husband
upon others of her sex, of whom she was not fond, having
little confidence in the virtue of women and less faith in the
honor of men.
This woman, who in her youth possessed such a striking-
personality as to command attention from the passing throng,
believed in her advancing years that she still retained the
fatal gift which might claim no worse a husband than the
best of men, and at the age of fifty "and upward" she met
and married Scott. She was now neither fresh, nor fair, nor
perfect in health, whatever might be her conceit that age had
not withered nor custom staled her. He had passed the
meridian of life, but was tall, shapely, broad-shouldered, a
fine figure of a man, somewhat soldierly in bearing, dis-
tinguished in appearance, amiable and suave in manner,
rather soft and subdued of speech, "genteel in personage,
conduct and equipage," in deportment dignified, always cour-
286 Coffey's Probate Decisions, Vol. 1.
teous, especially to women, all of whom as witnesses speak
favorably of his conduct, to them he seemed to be the pink
of perfection and propriety, calculated to please their eye and
attract their admiration, conscious of his natural physical
gifts, not averse to feminine regard,— altogether the style of
man to captivate the still ardent imagination and to arouse
the flickering embers in the heart of this ancient dame, for
she realized what was said by an author, that so long as the
hearts of women preserve the feeblest spark of life, they
preserve also shivering near that pale ember, a longing for
appreciation and affection ; and although she was aged, if
we may believe one of the witnesses, the heyday in her blood
was neither tame, nor humble, nor did it always wait upon
the judgment, but it was sometimes as riotous in her veins
as in younger days. She had been a widow for five years,
childless and alone, and she yearned for love and companion-
ship ; she had abundance of material means but the heart
hunger was unappeased; she craved for something more than
money, and she met Scott and surrendered at discretion to
his smooth speech and subduing tongue.
She was a childless widow of fifty-six years ; he was a
widower of uncertain age, for in this contest he sets himself
at sixty-one years, in the marriage license with this decedent
in 1889 at fifty, and in the petition for letters of administra-
tion upon the estate of his first wife in 1881 his age was
stated at forty years, but whichsoever of these ages and dates
is correct, whether it be 1841, 1839, or 1837, he was much
younger than his second wife, who was born in 1833 ; she was
wealthy, he had no assessable property in his own right and
derived no independent fortune through the will of his
former wife, who had left her estate, which was separate
property, to her three children, to be held in trust by three
trustees, Scott being one. The youngest child, a daughter,
was in the Atlantic states at the time of his second marriage,
and the two boys, aged eleven and thirteen years respectively,
he took to his new home, the palatial mansion erected as a
homestead bj^ Mr. Collins, and left by him to his widow,
who occupied it as her abode until her death. To the new
community Mr. Scott added nothing but his portly presence
Estate of Scott. 287
and his two sons, and they made this house thenceforward
their home, contributing nothing substantial to its main-
tenance, although their father as their guardian had a con-
siderable allowance for their support from the estate of their
mother. He himself had been unfortunate in business and
at the time he married it does not seem that he possessed
any tangible property, although there appears somewhat
obliquely, if not obscurely, in the evidence that there was
always speculation in his eye and that he had a number of
good things in sight, but on his own personal account he had
nothing in hand. He had passed through insolvency, into
which he had been driven by the conduct of a partner, and
came out in his own personal reputation legally unscathed,
but had not retrieved his fortunes up to the time when he
assumed, through his marriage with the widow Collins, charge
and control of her property and affairs. It is said by his
intimate friend of twenty-eight years' standing, who has also
been his attorney, Mr. Ball, that he was at one time in large
business as an importer and commission merchant and was
worth considerable money, but he failed through no fault of
his own and subsequently engaged in various ventures and
enterprises of great pith and moment, and with no notable
success, until the opportunity presented by his union with
the rich relict of the deceased wine merchant Collins. Mr.
Ball, recalling and recounting the business career of his
friend and office associate for many years, says that after
Scott's mining operations and other various speculations he
was "dealing in real estate and mines and such like" up to
the time of his marriage to ]\Irs. Collins, "after that he was
a good deal occupied with her affairs." The first essay in
that occupation was a journey to New York to dispose of a
stock of wines, with which transaction she was not satisfied,
although Mr. Scott considered it a success and claims to be
the author of the achievement. He says that he shipped
three thousand barrels of wine to himself in New York City
and went there to sell it, and did so, at thirteen and one-
eighth cents net ; this was in 1889 ; he sold a part of it him-
self personally and then his new wife telegraphed him to come
home and he came, leaving the remainder with a firm of
288 Coffey's Probate Decisions, Vol. 1.
brokers there who completed the transaction, which he initi-
ated, on the lines laid out by him. It seemed, however, that
she was dissatisfied and disposed to be querulous about the
matter then and ever after. She advanced him a large
amount of money for expenses which he claimed to have ap-
propriated to that end, and the money was so charged in her
books, but the returns and account sales seem to show that
the expenses were included in the transaction of sale. She
complained to several persons, so Scott says, that he squan-
dered her money, "it was all over town," and this like others
of her petulant plaints was born of mental disease and delu-
sion, but, however this may be, it is plain that immediately
after the marriage Scott assumed dominion over his wife's
affairs and estate. Without a dollar in his own name prior
thereto, the nominal ownership is at once vested in him, and
E. W. Scott's name is even engraven over the portal of the
new wine-house in Santa Clara county. This transmutation
of title was hot on the heels of the marriage.
Subsequently^ his wife has his name excised and her own
inserted in its lieu, and she resumes the reins which upon her
marriage she had relinquished to him, asserting that her only
safety lay in dispossessing him of control, and expressing
her grievous disappointment in having married a man who
was not capable of acting as an auxiliary in the management
of her extensive interests much less of exercising absolute
dominion thereover.
Whether this was a just accusation or not, it must be con-
cluded as to her own commercial capacity, executive energy,
and administrative ability that her general prosperity throve
apace and that her fortune flourished where others faded and
failed, albeit they were sane and sagacious men of affairs
and she a woman tormented with chronic disease and delu-
sions. Some instances are cited to show that she held out
against the market and special circumstances are adduced to
suggest a lack of business shrewdness, which simply serve to
evidence her stubborn confidence in her own estimate of values
and the conditions of their creation, but even occasional error
in judgment only signifies a tangent here and there in the
consecutive course of her commercial career. By the death
Estate of Scott. 289
of her first husband she acquired a large estate, $334,000 —
less $25,000, special bequests and expenses of administration.
In all the vicissitudes of viticulture and other branches of
trade and industry, from that day until the date of her own
decease, from the zenith to the nadir, she managed so wisely
as to preserve the fortunfe left to her by Collins with slight
diminution in value; the property devised to her by her first
husband is still there in kind and quantity and much im-
proved in quality, and is now the bone of contention in this
contest ; but assuming all this as in proof, is it inconsistent
with contestant's claim that she was insane or a monomaniac,
since business capacity may coexist with monomania or delu-
sions such as are alleged in this case ?
What manner of woman have we here who, with unbal-
anced mind, held against the elements of adversity an estate
of such magnitude virtually unimpaired as she received it
from him who with her conjointly created it, when men of
perfect poise and unchallenged equity of intellect went to
the wall in the time of trial during the decade preceding her
death?
One of the counsel, occupying a position in the controversy
somewhat separated from partisan bias (former Judge E. D.
Sawyer), ultimates his analysis of her character in this wise:
A woman of passion, uncontrollable temper, suspicious, jeal-
ous, gross in manners, coarse in conduct, vulgar and obscene,
and yet a good business woman, penurious, exacting espe-
cially in household affairs : altogether an unlovely creature
is present in this sketch of the testatrix.
Mr. Bolton, of counsel for proponents, describes her as a
woman of naturally strong mind, of resolute purpose, great
determination, and indomitable will power ; and Mr. Estee, in
his written comment on ex- Judge Sawyer's observations, char-
acterizes her as a "most aggressive person, sane or insane;
as aggressive as any person whose life was ever brought to the
attention of a court of justice." Mr. Scott's own testimony
shows that she was a woman of great clearness and strength
of mind, possessing a power of reasoning and logical faculty.
We have here, then, a case where the possession of general
vigor of mind and intellectual capacity is conceded, but it
Prob. Dec, Vol. 1—19
290 Coffey's Probate Decisions, Vol. 1.
is insisted that in respect to the contestant the decedent, was
under such an insane delusion that she could not act sensibly
in disposing of her property hy will: Will of White, 121 N.
Y. 412, 24 N. E. 935.
Mr. Shurtleff, in the course of his able argument, under-
takes to demonstrate a progressive insanity as manifested by
a change of temperament, and supports this theory by citing
her early education and rearing and the subsequent lapse
into habits of low language and indecorous conduct ; he claims
that a comparison of her early life with her later years ex-
hibits a marked change in temperament which is an evidence
of insanity.
Mrs. Helen L. Gerrish says her aunt was well reared and
particular as to dress, and the evidence generally as to her
early career proves that she was a lady in appearance and ac-
tion. The change came later betokening the development of
insanity; the precise point of time at which the change of
temperament was made manifest is not so easy to ascertain.
Such a change is usually so gradual in the system that the
terms of the transition are almost imperceptible until the
revolution is complete and we become all at once conscious of
the progress from normal to abnormal, and recall stages and
phases in personal history unnoted at the time of original
observation. Such, it is argued, was the case here.
The testimony as to the acts of immodesty in speech and
behavior must be considered as produced to establish the the-
ory of general insanity ; otherwise it is not of paramount im-
portance, since this case has been reduced to delusion, and
fixed or habitual general insanity can no longer be main-
tained against this testatrix ; but her personal history is im-
portant, and if there be such a transition in it, as is claimed
by Mr. Shurtleff, it is worth while to note it as a circum-
stance or link in the entire chain of proof. She was un-
doubtedly coarse and vulgar in her home, where she talked
and acted differently from what she was accustomed to on
the promenade or in her shopping expeditions about the town,
when she affected the airs of an aristocrat and the demeanor
and deportment of a duchess, but the pomp of parade was
discarded when she reached the cover of her own roof and
Estate of Scott. 291
appeared among the people of her own selection and hiring,
or a few intimates, before whom she threw off her affecta-
tion of reserve and reticence and assumed an abandon of act
and expression that would put Billingsgate to the blush and
cause its fishmongers to hide their diminished heads in shame.
More than a passing allusion to these features of foulness
is necessary only becavise of their being indicated as idiosyn-
crasies symptomatic of insanity and denoting a radical revo-
lution in her normal nature ; but if it appear that these pecu-
liarities were of long duration and had attained gradual
growth or been in process of development for many years
antecedent to her second marriage, the effect of the argument
of counsel for contestant will necessarily suffer eclipse, par-
tial or total, as related to the question of insane delusion.
We find in the revelation of the, secrets of her home life
an account from the lips of servants and other inmates of
her household establishment, stories of speeches, profane and
vulgar, obscene eccentricities of allusion, departures from
modesty in dress, some sportive gambolings before her mir-
rors in nature's simplicity of vesture, accompanied by re-
marks of an original and unique, but morally uncouth, if not
grossly indecent, constniction. All these exhibitions were in
the freedom of her own home, where she might do as she
pleased, where there was no one her right to dispute ; her
conduct and conversation in such circumstances may be criti-
cised, even censured, but predicating insanity thereon is an-
other matter. Sanity and insanity are to be determined by
other criteria than these occurrences in such premises. We
must take a more comprehensive survey of 'the situation of
sanity, a broader and longer view, than is afforded by the
circumscribed boundaries and narrow precincts of the inclosed
house and home. We must take the whole life of the sub-
ject of inquiry in every observable manner and from every
possible point of view to acquire a just judgment.
It is claimed against the contention of contestant that de-
cedent's conduct after her second marriage was similar to
what it was prior thereto and while she was the wife of Mr.
Collins and during widowhood : the proponents have both by
the cross-examination of contestant's witnesses and the direct
292 Coffey's Probate Decisions, Vol. 1.
examination of their own attempted to show that while she
was a widow and also before the decease of her first husband
she was profane and obscene in her language, had had trouble
with her servants, had broken dishes and smashed furniture,
and had suspected that Mr. Collins was unfaithful to her.
This was testified to by Mrs. Meily, a Witness for contest-
ant, who knew Mrs. Scott for twenty-seven years, was her
niece, her sister's child, now over fifty years of age, and who
said that decedent would indulge in the most dreadful oaths
and obscenities of speech, and was always addicted to this
mode of expression from the time she first saw her when she
visited her at her home in Columbus, Ohio, in 1871. Mrs.
Meily did not know Mrs. Scott in her early years, but the
first time she saw decedent the latter used profane language
and the habit continued %strong upon her always. Her vio-
lence of temper w^as not exhibited at that time and Mrs. Meily
first became conscious of decedent's infirmity in that particu-
lar when the former came to California, twenty-four years
ago; then she saw her aunt Angelia in those spells of sulki-
ness and anger in which she gave scope to her destructive pro-
pensities. She was always having trouble with her servants
and became angry with them without cause. This was be-
fore the death of Mr. Collins and also after. Decedent was
a woman of very suspicious disposition and distrusted her
best friends; she was very irritable and petulant; she drank
every day and was in the habit of imbibing intoxicants daily
as long as Mrs. Meily knew her; drank whisky three or four
times every day. This habit she had during the lifetime of
Mr. Collins. She used to pretend to size or measure it in a
tablespoon. Mrs. Meily saw decedent several times when she
thought she was under the influence of liquor, but this was
not during the lifetime of Mr. Collins. Her habit of drink-
ing grew gradually. In the latter years of her life decedent
drank harder than before. She was suspicious of the fidel-
ity of Mr. Collins and told witness so many times; all the
same w^ith Mr. Scott. Decedent was a woman of striking
appearance at the time witness first met her and always
dressed very neatly, taking a great deal of pains with her
attire. She was proud of her personal beauty, fond of money,
Estate op Scott. 293
avaricious. Witness knew that decedent smashed dishes and
furniture in the lifetime of Collins. Decedent was insanely
jealous of her second husband and accused witness of inti-
macy with him, which accusation was utterly false, and there
was no reason for any such imputation. Witness denied ever
having been alone with Mr. Scott. Mrs. Meily is a member
of St. Peter's Episcopal Church, and when the decedent, her
aunt, learned that she had joined the church she cursed and
swore violently; this was at Easter time in 1896. Decedent
spoke to witness of her suspicion of Scott's intimacy with
the domestics and told her that she had employed detectives
to track him, and that she herself, in company with her sister,
Mrs. Garcia, went in her carriage to three different houses
to inquire if there was a woman kept there by Mr. Scott,
without result. On one occasion three years ago, in front
of her first husband's picture, the portrait of Salvin Perry
Collins, decedent swore roundly at it and cursed him and
said she hoped he was in the nethermost portion of the in-
fernal regions, or words to that effect.
Mrs. Nellie Swall, a niece of the first husband of the de-
cedent, testified that she knew her ever since she could re-
member. The witness was born in 1858; her father, Lemuel
Perry Collins, died before her uncle, Salvin Perry Collins.
Witness used to visit the house of decedent from the time
she was a child and spent weeks there together. Decedent
and her first husband used to quarrel at times in regard to
his drinking. On such occasions each indulged high words
and low language. Decedent had a quick temper and when
she was cross she swore and cursed at anybody at whom she
was angry. ITer habits were always the same as wife and
widow and wife again; she was very nervous; she had dys-
pepsia and indigestion and stomach troubles; when feeling
well she was very nice and pleasant to everyone. When she
became the wife of Mr. Scott she often came in to see witness
at her home in Mountain View when she got off the train
on the way to her ranch; she got mad at witness frequently
and then would swear at her. In the lifetime of the uncle
of Avitness the decedent would accuse him of keeping a woman
down town, and of running with that class of women. De-
294 Coffey's Probate Decisions, Vol. 1.
cedent left her first husband at one time and went to the
house of her sister, Mrs. Garcia, and remained there until
Collins induced her to return and sought to win her by vari-
ous kind acts and to reclaim her affection, and he would take
her out riding and thus reinstated himself in her good graces.
Decedent was very fond of dress and dressed younger than
her age. She began taking the massage treatment while she
was a widow. As to her sanity, witness thought she was sane ;
she was smart in business ways.
Mrs. Swall was a witness for proponent and is the wife of
George Swall and lived for a part of the time with her sister,
who before her decease was the wife of the present husband
of witness and had charge of the children, of whom she is
stepmother and aunt, and who are minors and legatees un-
der the will in contest. Witness used to live off and on for
years with her uncle, Salvin Perry Collins, and subsequently
for some time with his widow, and she says that Mr. Collins
was a kind and courteous gentleman. He seldom quarreled
or gave offense to anyone. Mrs. Collins was not an untruth-
ful woman, but her temperament was excitable. She did ac-
cuse witness of trying to poison her, which witness denied,
and she thinks that decedent believed her, although she after-
ward repeated the accusation. Decedent said that Mr. Scott
was trying to poison her and trying to put her in an insane
asylum. Witness asked her why she married him, and she
said it was in a business manner, as she wanted somebody
to attend to her affairs and she thought he was capable, but
she found he was very different. Decedent did say that Mr.
Scott was running after other women ; but did not specify
any particular person. She had made similar remarks about
Mr. Collins, her first husband. She said that Scott was try-
ing to get her out of the way and that he had told her that
all that he had married her for was her money.
Mrs. Helen Louise Gerrish, a niece of decedent and a daugh-
ter of her sister, Mrs. Frank Garcia, knew Mrs. Scott always.
The witness lived in San Francisco prior to her marriage,
which was in 1881, and from that time went and lived north
in Port Townsend, in the state of Washington. During that
period she made frequent visits here, about every year, three
Estate op Scott. 295
months at a time; one visit was for four months. Witness
met decedent always on her visits. Remembers her when she
Avas Mrs. Collins, but he died before witness was married;
is now forty-two years of age. When she was a girl she often
went to visit IMr. and Mrs. Collins; knew of their having
difficulties. Decedent was suspicious of her husband, 'Mr.
Collins. Once she went away from him and came over to
the house of the mother of witness and remained there three
months. Mr. Collins used to come there to visit his wife
and finally induced her to return home. Decedent did net
enjoy good health:- she had stomach troubles and dyspepsia.
Saw her when she was suffering many times while she was a
wife and after she became a widow. Saw her at such times
exhibit a violent temper when she was the wife of ]\Ir. Col-
lins, also when she was his widow and when she became the
wife of Mr. Scott. Never saw her break anything in her
transports of passion, but she would swear and curse and
have trouble with the servants. Decedent had to be strict in
diet. Witness thought she was perfectly sane. Mrs. Ger-
rish was also a witness for proponent.
It should seem from these testimonies coming from inti-
mate kin that the decedent's peculiarities of behavior were
of long standing, and that for, twenty-seven years at least,
according to her niece, Mrs. Meily, she was habituated to for-
bidden forms of discourse in colloquial converse, and that
there is no line of demarcation to be drawn at or after the
time of second marriage.
These eccentric habits of speech were not suddenly ac-
quired, and are not, therefore, to be considered as presump-
tive evidence of insanity: Taylor's Medical Jurisprudence,
632.
Mr. Shurtleff. however, insists that it cannot he said that
this woman manifested merely eccentricities, and that her
acts and language are much more serious in their relation
to insanity than eccentricity, which is, according to the defin-
ition of Dr. Hatch, a peculiarity of character pertaining to
an individual, and may be marked by strong or weak indi-
vidualitv. where, as Dr. Maudsley says, the person does not
296 Coffey's Probate Decisions, Vol. 1.
run in the common tracks of thought and feeling, yet is not
insane: Mauclsley's Pathology, 59.
Maudsley remarks that eccentricities of this sort may be
of all kinds and degrees, from mild and odd to grotesque
and silly, running through a scale reaching from actual in-
sanity to the borderland of genius; on the one hand it may
ripen into insanity when it is not counterbalanced by a
strong judgment which fits the individual to weigh things,
himself included, in their just proportions from the outside,
and, if need be, to satirize himself as a fool among fools.
In Dr. Taylor's Medical Jurisprudence it is said that an eccen-
tric man may be convinced that what he is doing is absurd
and contrary to the general rules of society, but he professes
to set these at defiance. In eccentricity there is the will to
do or, not to do. Eccentric habits suddenly acquired are,
however, presumptive of insanity.
Instances and illustrations of eccentricities in individuals
otherwise noted for intellectual excellence may be numerously
cited, such as Dr. Samuel Johnson's habit of touching all
the lamp-posts in Fleet street. Balfour Browne says that
as long as this was merely automatic it was an eccentricity,
but when it came to demand an expenditure of energy it be-
came insanity: Browne's Medical Jurisprudence of Insan-
ity, sec. 255.
A man ever so eccentric will generally reason calmly and
rationally upon the subjects upon which he entertains pecu-
liar views ; but a monomaniac will, upon an attempt to rea-
son with him, become excited, and reject all reason because
the delusion takes full control of his reasoning powers; he
is unable to reason upon a subject; the delusion is dominant
over all the other faculties ; but in a mere eccentric the con-
trary occurs, and he is even amused and laughs at his own
oddities. Many examples of eccentricity in men of* high sta-
tion and of large mental calibre may be recalled from ex-
perience or reading, such as dispensing with some nonessen-
tial article of attire, or what may be deemed superfluous ap-
panage of apparel, such as a necktie or collar, as in the case
of the governor of Massachusetts, George N. Briggs, who was
for six terms a representative in Congress, and never wore
Estate of Scott. 297
a collar, or in the instance of a local celebrity, noted as a pub-
licist and orator, who uniformly dispenses with a necktie;
but tested by any definition of eccentricity, suspicion that
she would be poisoned by her husband or by those whom he
might induce to do so ; that he and others were attempting
to place her in an insane asylum ; that he was unfaithful to
her, — all of Avhich suspicions were unfounded, cannot be said
to be eccentricities : they plainly indicated a diseased condi-
tion of the mind, so far as her husband was concerned. These
were well-defined insane delusions, and they operated upon
the testamentary act. Suspicions may be entertained to such
a degree as to render one insane. As said by the expert wit-
ness, Dr. F. W. Hatch, often these delusions arise from mis-
interpreted suspicions, and the gradual building up of those
suspicions finally results in a fixed delusion.
Dr. Hatch is eminent in his profession, and for several
years has been connected with the management of insane
asylums in this state, and is at this time in chief direction
of all the hospitals for the insane in California, and he has
given it as his opinion, predicated upon the accuracy of the
hypothetical questions, that the decedent was insane and
possessed of three fixed delusions: (1) That her husband was
unfaithful to her; (2) That he was trying to poison her; (3)
That he was trying to put her in an insane asylum ; and
that if such delusions continued for years they would consti-
tute habitual insanity. Dr. Hatch says that it is a fact that
a person of ordinary perception may be acute and accurate,
with a retentive memory, his statements reliable in the main,
and even his judgment on matters connected with his pecu-
liar train of delusions, belief, or feeling, accepted as trust-
worthy, but notwithstanding this mental activity he may har-
bor delasions, not always exposed in casual conversations,
which, may be called forth by anyone cognizant of their ex-
istence and of his cerebral conditions, and all the authorities
so hold, and such has been the personal observation and ex-
perience of Dr. Tlatcli himself: 1 Beck's IMedical Jurispru-
dence, 729.
Expert evidence is really an argument of the expert to the
court, and is valuable only with regard to .the proof of tlie
298 Coffey's Probate Decisions, Vol. 1.
facts and the validity of the reasons advanced for the con-
clusions; therefore, if we find the facts assumed in the ques-
tion to be unsupported by proofs in any essential particular
the conclusion must be rejected; so it must be with the tes-
timony of Dr. Hatch if it shall appear, when the grounds
are tested, that there is no adequate reason for his opinion.
Each side in this case, as in all others of like kind, chooses
to criticise evidence of this character and to suggest that the
average expert is necessarily a partisan in the case. It is
not necessary, however, to asperse the integrity, intellectual
or moral, of any professional gentleman called upon to tes-
tify herein ; it is sufficient to allude to the commonplaces of
judicial expression that no tribunal would be justified in de-
ciding against the capacity of the testatrix upon the mere
opinion of witnesses, however numerous or respectable, and
that it is the province and the duty of the court or jury to
draw the inference of fact from the evidence before them
regulated by the rules of law — being assisted but not super-
seded in that function by the opinions of experts : In re Red-
field, 116 Cal. 655, 48 Pac. 794.
Dr. Hatch says that monomania or partial insanity is char-
acterized by some peculiar illusion or erroneous conviction
imposed upon the understanding and giving rise to a partial
aberration of judgment, and the individual thus affected
would be rendered unable to think correctly on subjects con-
nected with the particular illusion, while in other respects
he would not betray any palpable disorder of the mind; this
is according to authority and is the result of this doctor's
experience : Hammond on Insanity, 13-24.
It is a fact that in conversing with patients on topics for-
eign to their delusions one will find no difference between
them and other persons untainted by mental malady; they
seem sane on all subjects until one strikes the spring which
is the source of their intellectual disturbance : Ray, sec. 285.
In the case assumed in th>e hypothetical questions pro-
pounded by counsel for contestant, where a woman born and
reared in respectable circumstances, fairly well educated, and
surrounded by wealth and luxury, with all the advantages
of wealth and position enjoyed by her for many years, mani-
Estate of Scott. 299
fests at an advanced period of life, say at the age of fifty or
sixty years, a complete revolution in her external character,
and frequently, when under excitement, and at other times
when calm, and without apparent cause or reason, both in
the presence of servants and of acquaintances and compara-
tive strangers, indulges in vulgar, profane, obscene and blas-
phemous language, breaks dishes and smashes things gener-
ally, and goes around naked and unadorned, and perpetrates
other acts and antics of an abnormal character, she is insane.
Dr. Hatch's answers to the hypothetical questions pro-
pounded to him were based upon his understanding that the
phenomena presented therein appeared after the marriage
of the lady to Mr. Scott. He took it from that time as to
one of the hypothetical questions, the first question went be-
fore her marriage to IMr. Scott, to 1884 or 1887 or somewhere
along there; but he took the whole business of it, and his
judgment of her mental state proceeded on the accuracy of
the assumptions postulated in the entire proposition. His
conclusion was dependent upon their truth; if the hypotheti-
cal questions were so framed as to show that for many years
she had been obscene in her language, violent in her conduct,
profane, suspicious of her servants, and of everybody around
her. charging her former husband in his lifetime with im-
moral conduct and infidelity, and that for long years she had
been drinking to excess, such facts should be taken into con-
sideration and would affect the conclusion as to her sanity;
and if it should appear that her associations had been mainly
and almost entirely with her servants and with men whose
customary conversation was unrefined, and that for a quar-
ter of a century prior to 1896 she had been suspicious, irri-
table, annoyed at trifles, unable to retain domestics on ac-
count of her crankiness, and that she had been during this
period immodest at times in her deportment, .all these facts
would be taken into estimation as lessening the importance of
the symptoms. '
Dr. H. N. Eueker, an accomplished physician and surgeon,
now president of the board of health in Oakland, and for-
merly for a term of four years superintendent of the Stock-
ton Asylum, and three years and upward director of that in-
800 Coffey's Probate Decisions, Vol. 1.
stitution and now engaged in general practice, but continu-
ous in his special studies of insanity and often called in con-
sultation in such cases, concurs in the opinion expressed by
Dr. Hatch, that a person such as is described in the hypo-
thetical questions must be insane. Dr. Rucker says that such
a person would have habitual mania characterized by fixed
delusions. In conversation with insane persons there is no
difference between them and others in speaking on topics
foreign to their delusions; that is to say, this is true of per-
sons possessed of delusions upon certain subjects, or mono-
maniacs. Of course, in answering hypothetical questions, the
correctness of the premises is assumed.
In commenting upon this evidence, Mr. Shurtleff natu-
rally lauded *his own side and said that the testimony com-
ing from the other side of an expert character showing at
the times they came in contact with her she was rational, is
of no importance, when it appears that their acquaintance
was of a slight and casual kind, not aftording an oppor-
tunity to judge of her mind from all around observation.
These mere business acquaintances, seeing her for a few
minutes only at a time and then on some special subject,
foreign to her delusion, are clearly inferior in value and
weight, and cannot furnish a safe criterion to establish a con-
clusion of sanity ; they did not see her in circumstances cal-
culated to enable them to form an intelligent opinion of her
calibre or capacity. A person possessed must be under ob-
servation for some time and under a variety of conditions in
order that her delusion may be detected. An insane delusion
may be concealed from many who occasionally meet a person
and whose conversation and observation are contracted by
the circumstances of the occasion, while a few who are within
a closer social circle with superior chances for inspection of
all sides of the subject will be better able to pronounce a
more perfect opinion, because the delusion is more liable to
develop itself under the provocation or inducement of gen-
eral or protracted and local intercourse in the home circle,
where the conventional circumspection and guards which ob-
tain outside are not always maintained. At home, where
she was at ease, she spoke freely; abroad on business she
kept a guard on her mouth.
Estate of Scott. 301
It were well if she could have pursued the precept of the
preacher and practiced his lesson of virtue always and
everywhere, at home and abroad, to set guard on her mouth,
a sure seal upon her lips, that she might not fall by them,
and her tongue destroy her not, and that she might have
put up her petition as did David, when he cried out, —
"Set 'a watch, O Lord, before my mouth;
And a door round about my lips;
Incline not my heart to evil words,
To make excuses in sins. ' '
But she cared little, according to all accounts, for preacher
or psalmist, and preferred a tongue sharpened like a ser-
pent with the poison of adders under her lips.
That decedent uttered apprehensions of being poisoned
and implicated Scott appears from the evidence. In 1889
she made statements to that effect to Mrs. Meily and A. E.
Ball; in 1890 to Lloyd Scott, Wesley Scott and Mrs. Paisley:
in 1890-91 to Joseph INTortier, and from 1890 to 1897 to Geo.
F. Dyer; in 1891 to Major Hammond, Miss Richards, and T.
H. Froelich; in 1892 to John A. O'Dea and Thomas Talman;
in 1893 to Revilo F. Morton ; in 1895 to Mrs. Ogilvie and Miss
Anderson; in 1896 to Mrs. Cook, and in 1897 and 1896 to
Miss Gustafson; in 1897 to William Warwick, Mrs. Burn-
ham, Dr. Spencer, Dr. Mays. Dr. Spencer examined mat-
ter for poison, at request of Dr. Greth, who took the mat-
ter for examination at instance of Mrs. Scott. Many of the
witnesses for proponents testified to similar statements; in
1891-93 Mrs. Scott so spoke to Edward Lewis Brown; stie
also made mention of her fear of poisoning to several others
on the same side, Mrs. Gerrish, Mrs. Putman, Mrs. Nellie
Swall, and in 1897 to Wealthy Wormell. A. E. Ball tes-
tified that she made the remark to him that she had to keep
her whisky under lock and key to keep it from being poi-
soned, for she was afraid that somebody whould put poison, or
something of that kind in it. Lloyd Scott said that she
complained that his father was trying to poison her, that
he would get the cook to do it for $10. Lloyd and his
brother Wesley always tasted her food at the table at her
request to see if it was poisoned; she claimed her whisky
302 Coffey's Probate Decisions, Vol. 1.
had been poisoned with arsenic. Lloyd's brother, Wesley,
testified she said his father was trying to poison her, and
he used to have to taste her food every day to see if there
was poison in it. He thinks it was about the month of July,
1890, when he came back from New York when he first
heard Mrs. Scott say that his father was trying to poison
her; she talked about it most every day. In, cross-examina-
tion Wesley modified his statement about having to taste
the food every day, and said that his stepmother would have
periods of two or three months that she would make him
taste it, and then the rest of the time she would not care
about it. This might seem to show a suspension of the
alleged delusion for nine or ten months at a time. So in
regard to this ' item, it was not continuous, persistent, or
fixed.
Mrs. Paisley said that Mrs. Scott stated that there was
poison in her food, principally mush. Mrs. Paisley could not
tell how frequently this statement was made to her by Mrs.
Scott.
Joseph Mortier testified that she said Mr. Scott was try-
ing to poison her, this was some time after Scott came back
from New York, in the latter part of 1890 or 1891 ; she
said it at different times during that period.
George F. Dyer testified that she accused Scott of trying
to poison her. Dyer went to her house one morning; she
sent for him and she sent word downstairs that she was sick
and wanted him to come upstairs, and she said that she had
been poisoned by Scott or somebody else in the household
that he had employed to do it. She said her husband was
trying to get away with her, trying to kill her, to get her
property and poison her.
A. C. Hammond testified that she said that she was afraid
of her life, except for the presence of the children she did
not know that she would be safe from poisoning. This was
in a conversation Math Mrs. Scott in 1891, relative to her
husband; the second or third interview Hammond had with
her, somewhere about August, 1891, she spoke of the use of
poison by her husband.
Miss Kichards said that Mrs. Scott said that they intended
to poison her, accusing Mr. Scott and those all around her.
Estate of Scott. 303
Theodore Froelich said she told him that Scott and Mr.
Ball were poisoners; this was in 1890 or 1891.
John O'Dea testified that she said the people were trying
to poison her and did want to poison her. Thomas Talman
testified that she said Mr. Scott or some one else was trying
to poison her. She asked Talman if he would taste the
milk; he tasted it and said that there was nothing the mat-
ter with it at all. She said to this witness that he would
poison her as quick as anybody, to which the witness replied
that he had no object in poisoning her, because he did not
think that she would ever leave him anything.
To Revilo F. Morton in 1893 she said that Scott was try-
ing to poison her, and that she had been poisoned before
Morton knew her.
To Mrs. Ogilvie she accused Scott of having put some-
thing in her enema several times. Mrs. Ogilvie would be
there fixing tea for her and she told her to hide it for fear
Scott would put something in it.
To Ulrica Anderson she said he tried to poison her. Ulrica
had to take an egg every morning and beat it in her room,
so that he should not be "able to poison it ; she had to taste
her food so that no poison could be in it. Mrs. Scott was
afraid there was poison in it. She charged Mr. Scott with
trying to poison her. Ulrica had tasted the food before
Mrs. Scott ate it and was none the worse for it.
To Mrs. Cook decedent said that Scott would poison her
whisky. Mrs. Scott kept the whisky locked up and used a
little every morning with an egg.
To Ida Gustafson she said he tried to poison her and she
used to ask Ida to taste her beef tea for her. She would
accuse Mr. Scott of poisoning her steak and her beef tea,
and Ida would have to taste it in the mornings before ^Irs.
Scott would drink it. IMrs. Scott said that it would not
affect Ida as she was stronger than herself.
Mrs. Scott asked William Warwick if he thought that
Scott would put any poison or anything into her liquor when
she drank.
Mrs. l^urnham testified that Mrs. Scott would talk to her
about how ]\Ir. Scott was trying to poison her. She thought
that the food and almost everything she ate was tampered
304 Coffey's Probate Decisions, Vol. 1.
with. She suspected that Mr. Scott had some one put
poison in it — if he did not put poison in it himself; that he
had the cook or the coachman put poison in it. Mrs. Burn-
ham always had to taste Mrs. Scott's steak, her cream, or her
mush before she would use it herself.
Dr. Spencer testified to the signing of a certificate to the
effect that the articles brought to him by Dr. Greth at the
request of Mrs. Scott contained absolutely no poisonous mat-
ter. Dr. Maj^s said that Mrs. Scott told him that people
were trying to poison her and that she had some one to taste
her food before she would eat it. Dr. Greth took the arti-
cles in the certificate signed by Dr. Spencer at Mrs. Scott's
request, because she begged him to have it done for her.
These were all witnesses for contestant.
To Edward Lewis Brown, a witness for proponent, she
made a statement that some one was trying to poison her
food. She said she was afraid Scott would poison her, and
she gave as a reason that Scott was a young man and she
was an old woman, and she thought that therefore he would
try and poison her, and that he was no husband to her.
Mrs. Helen Gerrish says she heard Mrs. Scott say she thought
Mr. Scott might poison her. She accused Mrs. Nellie Swall of
trying to poison her and made this lady sometimes taste her
food. Mrs. Swall told her that she was not trying to poison
her, and thinks she believed her, although she afterward
repeated the accusation and she talked to her about Scott's
trying to poison her. Mrs. Scott told Mrs. Swall as a rea-
son w^hy she thought Mr. Scott was trying to poison her was
that he was after her money; that he married her for her
money and was trying to get her out of the way. She told
her this down at the house in Mountain View the year Scott
returned from the east after doing some business for her.
Wealthy Wormell heard Mrs. Scott say once there might
be poison in the food ; she did not say who might be poison-
ing her food.
Mrs. Scott told Mrs. Putman that Scott had been trying
to poison her.
Mr. Grossman does not remember much about any state-
ment of the kind, although he might have heard something,
but found it hard to "memorize" anything.
Estate of Scott. 305
It is claimed by counsel for contestant that the delusions
existing in the mind of the decedent as to Scott's unfaith-
fulness to his marriage vows with servant maids and other
women and as to a conspiracy to send her to an insane
asylum are also established by these witnesses, whose testi-
mony may here be summarized in these respects:
Miss Ulrica Anderson was employed by INIrs. Scott at her
house in this city as an upstairs girl; went there in April in
1895, and left there in August, 1895. Mrs. Scott was a
woman of very violent temper and used coarse language.
Ulrica was her maid. Mrs. Scott M^as in the habit of using
oaths and obscene words : she would fly into a passion and
become wild, tear her hair, slap her face, pound the tables,
and break articles, throw them down on the floor, smash
crockery, whatever was near at hand; any trifle would start
her. She was most excitable, a proud and vain woman, very
vain of her personal charms; she would at times undress
and dance before her mirror and display her figure in that
manner with evident self-admiration ; she had a fine form,
and soft, white skin, clear and free from blemish, tall and
well developed, proportions ample without angles, easy
curves; she had massage treatment, not from her maid, but
from a regular masseur ; she was very jealous of Mr. Scott ;
she was anxious to obtain some knowledge of wrongdoing
on his part; she said she would give Ulrica $1,000 if the
maid would try to inveigle him into sleeping with her, but
the girl declined to engage in any such enterprise and told
her that she was virtuous and would not allow herself to
entertain so vile a proposition. Mrs. Scott was quick-tem-
pered, strong-minded, obstinate, violent in her anger ; and she
broke out constantly and without cause, but Mr. Scott was
a modest and nice gentleman.
Mrs. Estella Burnham, who is now living at 1743 Franklin
street, the Scott mansion, knew the late Mrs. Scott and was
engaged as her maid from June 18, 1897, to the summer of
that year, and was with her from 6 o'clock in the morning
until 9, 10, or even 11 o'clock at night when she retired.
She spent her nights at the house of Mrs. Scott and had a
separate bedroom. Mrs. Scott's constant topic was the sup-
posed infidelity of IMr. Scott, whom she accused of unfaith-
Prob. Dec, Vol. I — 20
306 Coffey's Probate Decisions, Vol. 1.
fulness with the various girls in service and also with a ]\Irs.
Meily, a niece of her own, and with a Mrs. Paisley, a sister
of her first husband, an elderly lady. Mrs. Scott never ac-
cused Mrs. Burnham to her face, but she did say that all
women were bad and that she would not trust any woman,
and that she would give $1,000 to any girl who would seduce
Scott so that she could catch him in the act. She just
suspected that Scott was running around all the time with
the women when he was down at the ranch, that was her
sole subject of conversation from morning until night. She
was always talking of her suspicions of her husband's in-
fidelity and of his poisoning of her and putting poison in
her food and drink, and Mrs. Burnham had to taste what
Mrs. Scott ate and drank before she would touch anything
for fear of poison. There was nothing of the kind in reality,
no poison in the house ; there was not the least provocation
for her spells. Mrs. Burnham could always tell in advance
in the morning when Mrs. Scott was going to have a bad
day; her eyes would show when she slept ill and she would
be wild in her appearance, and then they would have a time.
She was always harping on the same subject — Scott's
amours. She was desirous of finding out whether he was
really true. After Mrs. Burnham left on the 4th of De-
cember, 1897, she visited the house several times but did not
return to the service during the lifetime of the decedent.
While she was there witness was asked by Mrs. Scott to act
as a detective three times in two weeks, and pretended to
comply and put on a sort of disguise and went out and came
back without any discovery, but made no attempt to pursue
him, as she would not do so except by way of pleasing Mrs.
Scott, as she was in her employ and necessitated to make
this pretense of watching him to retain her situation; so she
consented to play the part.
Frederick J. Bockwoldt was foreman of the Scott ranch
in Mountain View for a while. Mrs. Scott used to send for
him to come to her room every time she came down to the
ranch to talk with her. He often went and spent an hour
or two at a time; at first she would talk about biLsiness, but
after a while she would converse about Scott, and said she
believed that he was unfaithful to her with certain ladies
Estate of Scott. 307
in the vicinity, and she asked Boekwoldt to find out if this
was not true. He told her that Scott never went off the ranch
except accompanied by him and Lloyd. Mrs. Scott's con-
duct was immodest in the extreme, and she would talk in
the most shocking manner.
When Mr. Scott was in the east Mrs. Scott sent for A. E.
Ball and complained of Scott's infidelity and that he was
running with other women, and that he had taken a woman
east with him, in 1889.
Mrs. Cook worked for Mrs. Scott in 1896 ; was employed
as a servant doing the upstairs work. Mrs. Scott was in the
habit of using very bad language, and said that Mr. Scott
was running after every woman in the city; she said she
never could keep any girl more than a month, then they
slept with Mr. Scott. She wanted her to sleep with him,
offered to give her money if she would do so, but Mrs. Cook
told her that she did not want to make money that way and
refused to consider seriously her proposal. Mr. Scott was
calm and considerate to all and always tried to pacify his
Mdfe, but she was not to be quieted. She was always talking
of Mr. Scott's running with other women and wanted to
catch him.
George F. Dyer knew Mrs. Scott from about 1890 until
three or four months before she died : saw her as often as
one hundred to one hundred and fifty times. In the
earlier times his opportunities of seeing her were consider-
able; she engaged him to sell her ranch in Santa Clara; she
used to get him to call at her house with data about the
ranch ; this was about the spring of 1891 ; perhaps in June
or July. Dyer had some purchasers for the property; she
said she wanted to sell; she sent the persons down to see the
property and on their return Dyer entered negotiations, and
when they came to the house to do business she **flew off the
handle, ' ' and raised the price. She talked to him on a great
many subjects besides business; she used to say that she
was perfectly willing to sell, but she was afraid that the
money would fall into somebody else's hands; she talked
about Scott running after women and wanted to find out
what he was doing; she would send for Dyer down to his
house to come there at all hours of the day and sometimes
308 Coffey's Probate Decisions, Vol. 1.
at night and wanted him to track Scott on his alleged amor-
ous adventures; she said that she suspected that Scott and
Ball and another man were concocting a plan to rob her, and
she was afraid of being poisoned. Mrs. Scott told Dyer that
her husband had said that she was insane, and that they were
trying to put her into the asylum or plotting to get rid of
her in some way. Dyer had known Scott for fourteen or
fifteen years and he was always a gentlemen in his behavior.
Mrs. Scott would use very coarse and indelicate language,
obscene and vulgar, and witness gave a sample of the coars-
est quality which he said made the hair stand on end. She
called Scott by the most opprobrious epithets before this
witness in speaking of him; nothing was too vile or vulgar
for her tongue; this was from 1890 to 1893. Her manner
of talking on subjects was such that Dyer quit trying to do
business with her, as he did not consider her competent to
transact business. Dyer was invited to her house to din-
ner; she invited him there to talk about the ranch and then
asked him to remain to dinner. He sat down to the dinner
table and after two or three minutes she ordered him up
and out of the house and he went out. He saw no reason
for this conduct and she gave none except that he was a
friend of Scott and that he was trying to get the ranch
away from her or something of that kind. Dyer thought
the woman was crazy; that she did not have her right mind;
and his reasons were because she floated from one proposi-
tion to another ; she would take the property away from him
one day and give it to him the next, and wanted to employ
him as a detective to pursue Scott and find out and tell her
about this woman; and she frequently visited Dyer's house
— came down there without any apparent cause whatever.
She would curse Scott at her own home and she would send
for Dyer at all hours, and when he got there he found there
was nothing to it, therefore, he thought she was not a woman
of strong mind.
It appears that Dyer first made the acquaintance of Mr.
Scott in 1884, M^hen the business of witness was mining, and
that he was intimately acquainted with Mr. Ball and his
mining operations with him and with Mr. C. C. Tripp, and
had been to the office occupied in common by these gentle-
Estate of Scott. 309
men during all the years since 1884, and whenever he called
there he always saw Mr. Scott. Mr. Ball told Mr. Dyer that
Mrs. Scott wanted to sell the ranch, and Scott introduced
him to Mrs. Scott, but he cannot recall who introduced him
to Mr. Scott. Dyer says he was looking for a piece of prop-
erty and Mr. Ball told him that the Scott ranch was for sale.
Then Scott introduced him to his wife, and Dyer had a talk
with her at that time alone, her husband left after the in-
troduction; Dyer went in with her into the little office off
the hall in her house and Scott went outside somewhere.
She and Dyer had quite a talk for about an hour; she did
not give him a description of the ranch but gave him the
outlines; she did not seem to have her mind made up as to
price at that time and asked Dyer to call again. He went
back there the next day or a day or two afterward alone;
was there about an hour and a half or two hours. Mrs.
Scott and he were discussing the ranch, she going into the
minutest details about all its phases of income, area, acreage,
number of vines, their age, condition of improvements, char-
acter of soil and climate, expense of operating ranch, num-
ber of men employed, amount of machinery upon the prop-
erty, cooperage, storage, the buildings, and all the details;
she gave him a paper, a report of all the property and all
of those items were in it. The two conversed for an hour
and a half on that topic and incidentally on others.
Theodore H. Froelich, a wine broker, who formerly lived in
San Jose, and was engaged as a wine-maker there, knew Mrs.
Scott before she married her second husband. He had had
many conversations before and after that time. She told
him at one time that she had thoughts of getting married
again, and said she was a foolish woman to think of such
a thing. When she married she told Froelich of it and that
she had met a man to her liking, and she introduced Scott
to him, and he told her that he thought she had made a
good match and that Mr. Scott would make a good husband.
Froelich gave up his business in San Jose in 1891, and re-
turned and set up as a broker in San Francisco in the fall
of 1892. He had been ten years in business in San Jose
and the acquaintance begun with Mrs. Scott there was con-
tinued here. She was frequently in his office here on busi-
310 Coffey's Probate Decisions, Vol. 1.
ness; he acted as her wine broker and she called two or
three times a week and sometimes every day. Froelich
handled her wane for local and eastern markets. When she
called she would often talk about her domestic affairs. She
was very jealous of her husband and said that he was
running after other women and that she knew that he and
Ball had concocted a conspiracy to send her to an insane
asylum and deprive her of her property. Her language
was very vulgar, profane, and obscene beyond description.
She was a good friend of witness so far as giving him the
business was concerned. One could not cheat her for a cent,
but still Froelich did not consider her a good business
woman. She was mean and parsimonious, and they had a
quarrel finally on their business relations, which resulted in
a lawsuit still pending.
Ida Gustafson was employed as a servant in the house of
Mrs. Scott at two different times, first from October to De-
cember, 1896, and last from April to June, 1897. Mrs.
Scott was very rough in her talk and Ida could not repeat
her language, it was so bad. She was very violent in con-
duct — half crazy. She said she paid $100 a month to a
detective to watch Scott and that she was willing to pay a
girl to trap him into intercourse. She was very jealous of
Scott, broke all the furniture in his room at one time;
she would go around naked and dance about the room
before the mirror because she was so well built. Ida was of
opinion that Mrs. Scott was insane; her constant talk was
that her husband was unfaithful.
Anselm C. Hammond was employed by Mrs. Scott, then
Mrs. Collins, to copy the will of her first husband and to
find out what became of the proceeds; this was in July, 1891.
He did so. He frequently conversed with her from that
time until 1897, the burden of her talk was that her second
husband was unfaithful to her. She spoke of his having
intercourse with her nieces and others. She told him that
Scott and Ball, one of the attorneys in this contest, were
trying to railroad her into the insane asylum. Her lan-
guage in reference to her husband and his habits with women
was such as Hammond had never been accustomed to in a
woman. It was vulgar and obscene to a degree. She
Estate of Scott. 311
charged Scott even in 1891 with running with women.
Hammond formed the opinion in 1891 that she was not
mentally sane after he had made returns to her about the
Spring Valley Water stock which were unsatisfactory, and
because of her dissatisfaction at his work, Hammond be-
came annoyed; she spoke about poison and Scott's infidelity
to her; she was continually talking about being railroaded
to the asylum by Scott and Ball. Hammond had never seen
anything wrong in the conduct of Scott. His office was and
is at Room 39, Merchants' Exchange, and Mr. Scott has a
desk in the same office. Hammond is an expert accountant
and was employed by the decedent in 1891. He made a
report to her before August, 1891, the report was unsatis-
factory to her and that annoyed witness greatly.
]\Irs. Ella Joseph went to live at the house of Mrs.
Scott at the time the husband of the decedent was in the
east; she was very vile and violent in her language — in fact
the conduct and conversation of the decedent were so coarse
and vulgar that witness told her that she would lose her
grace if she remained there. The witness was a church
member — Third Baptist Church. She never stopped in the
house of Mrs. Scott at nights, but was there about a year
and a half. Mr. Scott had gone east but a short time when
this witness went to live there, and after he returned she
remained there about eight or nine months. "When witness
went there after a little while she asked Mrs. Scott if she
had a husband. She answered, "Yes, of course I have."
Witness then said, "You will excuse me if I intrude, but
where is your husband?" Mrs. Scott said that he was in
the east with a woman. She was always talking of his
running with a woman or women; accused him to the wit-
ness of improper conduct with the servants in the house and
with other women. So far as witness saw, Mr. Scott was a
very nice gentleman in his behavior.
Joseph Mortier is an orchardist and wine-maker; was so
engaged at Mountain View at the Scott ranch from July,
1889, to September, 1892. Mrs. Scott used to come on an
average about once in two montlis; she used to talk to Mor-
tier about Mr. Scott, and asked him if Scott did not visit a
certain widow and some young ladies in the neighborhood,
312 Coffey's Probate Decisions, Vol. 1.
very respectable persons, and witness told her not so far as
he had observed. The witness considered the decedent in-
sane, because she could never carry on a talk for ten min-
utes at a time, and she would jump from one subject to
another. Witness thought she was off on the point of jeal-
ousy of her husband.
Kevilo F. Morton went into the service of Mrs. Scott in
January, 1893, as bookkeeper. She used to talk to him for
hours; she began to talk about her husband as early as
March, 1893, and continued that way until her death. The
first conversation was when she sent for the witness and
talked to him for three hours. Among other things, she
said that Scott wasted and squandered $100,000 of her
money in the first year of her marriage. The decedent also
said that her husband was not faithful to her and was famil-
iar with the servant girls. She said that he had sold the
Spring Valley Water stock. Mrs. Scott also said that she
had been defrauded in her first husband's estate, which
ought to have been worth at least $500,000, but only came
out about $275,000, and that through Mr. Estee and his
partner, Mr. Wilson, she had been robbed of th-e remainder.
She said that her first husband had said he was going to
buy the Stevenson building, and she thought he must have
had another box in the safe deposit vault wherein were con-
tained other securities that were not in the inventory of his
estate. She had no confidence in anyone. She said that
Scott was trying to poison her and that she had been poi-
soned before the witness knew her. She told Mr. Morton
once that she had a circus with Scott at the breakfast table
and she smashed all the crockery, and she said that when
she had one of those spells she must smash something. She
told the witness that she was making a codicil and she was
going to give Scott very little and cut Mrs. Meily off with a
dollar because they had been intimate. In her figuring on
the prices of her wines she was frequently at fault; she
would ask such prices above the market rate that she could
not secure a purchaser. In his opinion she was during this
period insane, his reasons being then and now that she en-
tertained those suspicions of certain acts and persons which
had no grounds for her beliefs. In all the time that Mr,
Estate of Scott. 313
Morton knew her he found no ground for her belief or ac-
cusations of fraud and poisoning and of the infidelity of
Mr. Scott ; quite the contrary was the result of his researches
and observations. She used in her talk so much profanity
and vulgarity that the witness could not believe that any
woman who talked that way habitually could be sane. If
she were asked a price for the wine she would take the
market rates and then she would add several cents and in-
sist upon this higher rate, which could not be obtained.
She would insist upon such quotations in advance of the
local market prices. She made a price higher than others
in the business. He did not think she used good business
judgment in such a case. Her custom at the banks was to
borrow money on her own note without security to carry
on the ranch. She borrowed money from the Bank of Cali-
fornia and the First National Bank. She borrowed $25,000
at one time and at the time of her death she owed the
latter $35,000. Mr. Morton kept the books from data fur-
nished by her.
Mrs. Anna Elizabeth Ogilvie was a seamstress for the late
Mrs. Scott, who was all the time complaining of her hus-
band, Mr. Scott, and telling how he had connection with all
the girls who were there, the servants in the house and then
went down town after other women. She said he had inter-
course with the colored girl in the front room, of which she
had auricular evidence as she had heard the bed shake. She
also said he had improper relations with her own niece, Mrs,
Meily, as she had stood at the latter 's door and had heard
the sounds which satisfied her of the fact. .She would fol-
low Scott all around the house calling him vile names. This
would happen nearly every day. Mrs. Scott told the wit-
ness that she had a bad temper, which she inherited.
Mrs. Catherine O'Connor worked for Mrs. Scott from
1889, two weeks after her marriage to Mr. Scott, off and
on until last October, 1897. She would go to work in the
morning at 8 o'clock and leave at 5 o'clock in the afternoon;
never slept in the house, as she had her own house and home
for many years. Mrs. Scott talked to this witness a great deal
and the strain was always the same — the alleged infidelity
of her husband, whom she continually accused of dalliance
314 Coffey's Probate Decisions, Vol. 1.
with other women. She was jealous of a colored girl in
the house and used to stand nude looking over the banisters,
and witness asked her why she stood there in danger of cold,
and she said she was watching Scott and the colored girl
downstairs. She used very vile language; witness never
heard anything so low. She told the witness that the reason
why she had hired the colored girl was because Scott was
after all the white girls and she was going to give him
enough of it now. Mrs. O'Connor never heard her say any-
thing about Scott except that he was untrue to her and all she
feared was that he would put her into an insane asylum:
in the opinion of the witness Mrs. Scott was crazy — strictly
crazy.
Mrs. Eliza J. Paisley deposed that she lived in California
once upon a time from April to August, 1890, on Franklin
street with Mrs. Scott. Mrs. Paisley is the sister of the first
husband of decedent, Salvin Perry Collins. Witness went
there by her invitation. She had a great many conversations
with Mrs. Scott, who talked a good deal about Mr. Scott,
finding fault with him about being untrue to her in a great
many instances. She accused him of numerous illicit actions.
Witness could not tell as to their truth. Mrs. Paisley lived
there three months and saw the decedent and Mr. Scott every
day and was always treated "extra well" by him, he never
making any improper advances to her. She never saw any-
thing improper in his attitude toward anybody. His conduct
was everything that was right toward everybody and he al-
ways behaved himself. While she was there Mrs. Scott did
not conduct herself in relation to her person as she thought
becoming to a woman. She had seen her do a great many
things that were improper ; as exhibiting herself in a naked
manner, dancing about in the room before a glass — when she
did that she was naked. The deponent had heard her make
threats against Mr. Scott and his children. She saw her use
a pistol not exactly to him, but she would say she could shoot
and would shoot Scott sometime. She did not threaten to
kill him, but she threatened the children. Sometimes when
she would be carrying on she would say, to spite Mr. Scott
she would do something to the children. At one time she said
Estate of Scott. 315
she could poison those children, by putting something on their
lips. When the deponent left to go home they came to see
her off. In the last conversation she had with Mrs. Scott
at the ferry, the latter said that she would draw blood, or
felt like doing so, before she got home. Mrs. Scott was highly,
wrought up at that time.
Edward G. Perkins first met Mrs. Scott at Pescadero in
1872 ; she was then Mrs. Collins. He did not have any fur-
ther acquaintance with her until 1891, when he went to see
her about purchasing a horse that he heard she had for sale ;
nothing came of that. It was with Mrs. Scott that the wit-
ness had the conversation about the horse and its pedigree —
Mr. Scott not knowing anything about the pedigree of the
horse although he knew of the negotiations; he took no part
in that. Mr. Perkins was about three months pottering over
the matter of the negotiations for the sale of the ranch. His
compensation was to be dependent upon the success of the
sale, and that never came to pass. He was then engaged in
buying and selling mining stocks on his own account through
a broker. Mr. Scott knew of the negotiations about the sale
of the ranch, and he said to him once that he did not think
it worth the while of the witness to be carrying on the affair
as the decedent would change her mind so often, and after
a while it so turned out; the matter dropped off and after
about three months of vain negotiations the end came. When
Mr. Perkins first met her in 1891 he thought she was one of
the most villainous women in her tongue he had ever encoun-
tered, but after a while he came to the conclusion that she
was insane; her vile language and violent actions convinced
him that she was insane. Sometimes she would put her hands
to the side of her head and pace up and down the room and
talk to herself incoherently and then break out into a torrent
of indescribable vulgarity.
Mrs. Annie J. Robinson knew decedent from October, 1889,
to January, 1890; witness was acting as maid for her; at
the time she was there Mr. Scott was in New York and
returned two weeks before witness left. Mrs. Scott was
in the habit of saying that Scott had a woman with liini.
She was very vulgar and profane in her expressions. She
316 Coffey's Pkobate Decisions, Vol. 1,
«
removed her clothing and exposed her person, saying she
was a perfect Venus. She took massage at times, but it
was not for that purpose that decedent undressed before
witness; it was for no other reason, so far as witness could
^observe, but that Mrs. Scott should ask her opinion about
her form as to being a perfect Venus. Witness did not
think decedent was a Venus nor did she consider hers a
pretty form, but did not say anything. After witness left
Mrs. Scott's house she went to work elsewhere. She had no
quarrel with Mrs. Scott, but could no longer put up with her —
existence ceased to be endurable with her.
Miss Elizabeth Jane Richards, dressmaker, went to work
sewing for Mrs. Scott about a year after her marriage to
Mr. Scott, say from 1890, and the decedent frequently rode
out to the home of witness on Point Lobos avenue and spent
the whole day there. When witness first went to the house
of deceased Mr. Scott was absent in the east. Witness was
there then for a week. She met him first on the second or
third occasion of her working there. He came into the room
and Mrs. Scott introduced witness to him; prior to that time
witness had never met him. Witness used to stay at the
house of decedent as much as two weeks at a time, sewing
all day, and decedent would spend the time with her. Wit-
ness never spent a night there but took her luncheon and
dinner at that house. On the very first night or the first
day that she spent there decedent presented herself in the
room before the witness stark naked and asked witness if
she did not think she had a fine figure and form and was a
well-built woman, and if there was any occasion for Mr.
Scott to go after other women. The witness said she did
not know, as she made no studies of ladies below the waist
line, and told her that she wished she would not act in that
way before her. The decedent was always talking about
Mr. Scott, and his consorting with women, the servants in
the house and others whom she suspected. She made threats
of killing him often, and said she would shoot him to death
if she caught him with a woman; said she would give $1,000
to any girl who would seduce him and sleep with him.
She said that Judge E. D. Sawyer and Mr. Ball were con-
Estate of Scott. 317
spiring to railroad her to an insane asylum but that she
would see them in hell first. She was very coarse and violent
in her speech — most profane and vulgar. She would dance
before the mirror, wring her hands and carry on at a great
rate; she would also indulge in high kicking; she would
square off before her mirror and spar and swear at herself.
Witness did not remember the names of the girls who were
there at that time — decedent had so many girls; she would
have three in a day. Witness could not keep track of the
girls; decedent had about one for every day in the month.
She would discharge them; they would not stay with her
because her wrangling and her actions were so bad that they
could not stand her and the food was insufficient. Decedent
had to get three different girls in a day in order to get her
work done. She would have to do it herself and go on her
hands and knees, yet notwithstanding that fact witness
remained with decedent eight years.
E. D. Sawyer, who is an attorney and counselor at law
and has been practicing for forty-odd years in this city and
state and was formerly for a term of six years judge of the
old fourth judicial district, prior some years to the adoption
of our present state constitution, and is now representing in
this estate and contest absent and minor heirs by appoint-
ment of the court, cannot say that he had any acquaintance
with the late Mrs. Scott. Mr. Ball was at one time his part-
ner, but witness had nothing to do with Mrs. Scott and had
no hand, act or part in any plot against her.
Lloyd Nudd Scott is now twenty-one years of age, a student
in the University. He first saw Mrs. Scott about a month
before her marriage to his father, who took his brother and
himself to see her. This was in October, 1889, when witness
was fourteen years old. Witness and his brother accom-
panied their father to the train when he went east. She said
that he had a woman in the car with him; she talked about
his father all the time in 1889 and 1890, as to his running
with other women; she took the lock off his door so that she
could go in and see if he had any servant girl with him ; she
told Lloyd that she put a thread on the stairs to see
whether the girls went up or down at night; she said that
318 Coffey's Probate Decisions, Vol. 1.
he and Ball were trying to railroad her to an insane asylum ;
she used to say that the servants in the house were lewd
women who came there to rest up and that father was intimate
with them. These tantrums or spells would last for a long
time and then she would quiet down for a w^hile and express
her regret for her conduct, saying that she did not know
what she was doing while she was in such a condition. She
would throw herself into a terrible tantrum and become so
violent and irritable that everyone was obliged to let her
have her own way for fear of the consequences, and after one
of those tantrums his father, his brother, and himself were
obliged to leave the house and go to the Hotel Langham. and
after that to the Geysers, whence they returned to the house
on Franklin street, upon the receipt of a message from her.
After a short respite she would renew her conduct. Father
used to ask her to come with him to the theater, but she
would decline on the ground that she had to arise early.
She spent her evenings at home and so did father. She was
not given to reading but a great talker on one topic. Father
would not remain to listen to this but would get up and go
out. Wesley testified to the same effect as his brother.
Thomas M. Talman lives at 1743 Franklin street, the house
of the late Mrs. Scott, and is attending to the garden there.
He was first engaged by Mrs. Scott in 1892 and continued in
his employment until 1894. His occupation consisted in
attending to things generally. Mrs. Scott began to talk about
her husband to him from the first. At the ranch she talked
to him for hours on the same subject. On one occasion while
he was attending on Mr. Scott, who was ill and under the
weather, he occupied one room and she another room; the
witness was up nights looking after him ; the decedent came
into the room clad only in a chemisette and went to the fire-
place and raised her garments in the rear with her back to
the fire, the witness being in front of her. According to
Talman she was always flighty in her talk, jumping from one
subject to another, no connection in her talk. The witness
took charge of the chickens and some of the horses. They
had three or four hundred chickens. The pay of the wit-
Estate of Scott. ■ 319
ness was ten dollars a month. He has been now (March 31,
1898) about three or four weeks at Mr. Scott's.
John F. Uhlhorn was introduced to Mrs. Scott at her house
by Mr. Scott in the year 1891, and after the introduction
Scott went out and Mrs. Scott at once engaged in conversa-
tion with the witness and began by asking him if he knew
that Scott and Ball were trying to railroad her to an insane
asylum. Witness answered that he did not. Mrs. Scott said
that it was so, and she went on with a tirade, swearing
vociferously, saying that Scott was running after women and
cohabiting with all the women that he met and with the
servant girls in the house. Uhlhorn formed the opinion she
was insane on account of her conduct and conversation at
that interview. About a month afterward he had a similar
conversation ; her talk was the same, and that corroborated
his opinion previously formed. In the year she called upon
him at the Cafe Zinkand on Market street and spent an hour
at a time talking with him on the same topic. She asked
him if he did not know that Scott and Ball kept a harem
at the Hotel Grosvenor on Sutter street, but the witness did
not know anything of the kind. "Witness had known Mr.
Scott for about twelve years. When he first met Mrs. Scott
her husband took him up to see- her, saying that he wanted
to make him acquainted with her. After a few moments,
Scott excused himself and left witness and Mrs. Scott alone
in the conservatory. On the second occasion she met Uhlhorn
on the street one day and invited him to dinner, and he went
the next day. Scott was not present on that occasion. She
said that she expected Scott to dinner but he did not come.
On an occasion about three months subsequent Scott invited
Uhlhorn to dinner at his house and he went and they had
dinner. Everything was agreeable at the table. Afterward
they went into the parlor. Mr. Scott went upstairs and she
and Uhlhorn conversed for about ten iiiiiintes. She was
harping on the su}).ject of her husband's assumed escapades
and his running after women with Ball. After IMr. Scott
came into the parlor he remained a few minutes and they
then left the house. After the conversation the first time
witness spoke to Scott saying it was strange his wife should
320 Coffey's Probate Decisions, Vol. 1.
mention such matters to him the first time they met. Witness
chaffed him a little about his running with women and he
said that was all nonsense. Witness did not repeat to him
what she said about the insane asylum, as he considered it
was too delicate. In 1893 she invited him to go down to the
ranch with Scott, as she thought it would do them both good
to have a little outing. He accepted the invitation, and went
down with him. Decedent wanted him to write for her a
detailed description of the ranch in a letter and he did so.
She paid a visit to the ranch while he and Scott were staying
there, saying she wanted to see what the men were doing —
having a good time, running around with women. This was
the general trend of her talk, and she did not seem to have
any respect for herself or anyone else in her manner of talk.
Mr. Uhlhorn wrote a detailed description of the ranch for
her in or about October, 1897, and gave it to her, and she
seemed satisfied with it.
William Warwick worked for a while for Mrs. Scott in the
year 1897. He went to seek employment in response to an
advertisement for men at a vineyard. He first met her about
September 15th, 1897. He heard that she had a vineyard at
Mountain View and he went there to see if he could obtain a
job. She told him that she did not have work in the vine-
yard but that she could give him work watching Mr. Scott.
Warwick accepted the situation and entered upon the duty.
He went on his trail and followed him about from that day,
September 15th, until about the 6th or 7th of October, 1897,
without detecting in him any impropriety or discovering
him visiting any place of doubtful repute. The witness fol-
lowed him all around San Francisco every day that Mr. Scott
was in town, kept constantly in his wake all the time. Left
the house every morning that he did and took the same car
and returned in the evening when he did; wherever Scott
went Warwick pursued. He did this at her request. She
told him she wanted to catch Scott going with Mrs. Meily
particularly. She instructed him to keep his eye on Scott and
watch whithersoever he went and report results to her. She
wanted to catch him with a woman so that she could take
down the bed and move his trunk for him. She said that
Estate of Scott. 321
Scott was of illegitimate extraction, using a vulgar epithet
to describe his immediate female ancestor. She kept the wit-
ness running around after him, but as he found nothing
unbecoming a gentleman in Mr. Scott's conduct he quit the
pursuit and relinquished the employment.
John A. O'Dea is a plumber and a resident of San Fran-
cisco for nearly forty years. He knew Mrs. Scott from
January 12, 1892, when he went to do some work for her and
continued the acquaintance for the balance of her life. Had
many conversations with her on topics other than business.
She would insist on talking of her domestic affairs when the
witness wanted to talk business and he strove by evasive
answers to avoid such talk, but she persisted until he managed
to excuse himself and left her. Her language was usually
very profane and vulgar. She was very violent in her speech
and manner at all times. His first experience was when he
went there in response to a message through her coachman,
and when he reached the house he was met with a volley of
violent vulgarity, much to his amazement. With a torrent
of torrid expletives she assailed his ears in so fierce a manner
as to cause him to make a hasty retreat because of the
linguistic bombardment, which was a novel experience to
him — so much so that he declined to stay or return, but was
induced to do so by the coachman, who assured him that that
was only her customary way of expressing her emotions, that
she spoke thus strongly on all occasions. The witness so
found in his subsequent dealings with her. She would curse
and swear and indulge in vulgar remarks to an extent and
with a variety previously unknown to him. She always paid
her plumbing bills. The last job he did for her was in 1896.
She was not extraordinarily acute in her dealings.
Mrs. Gerrish heard Mrs. Scott say she could not keep her
servants on account of the familiarity of Scott with them,
and that her husband was running with other women, Mrs.
Meily being one of them.
To Edward Lewis Brown decedent expressed herself that
Scott was unfaithful to her and that he was no husband to
her.
Prob. Dec, Vol. 1—21
322 Coffey's Probate Decisions, Vol. 1.
Mrs. Scott complained to Nellie Swall that Scott was
running with other women and that he was trying to put
her into an insane asylum.
To Charles E. Elliot decedent said that she could not keep
a woman in the house without Scott's trying to get in bed
with her. This was when Elliot advised her to have a com-
panion.
Decedent told Amanda Johnson that Ball and Scott were
going up to the Napa Insane Asylum to pick out a room for
her.
To Sumner C. Murray she said that her husband was run-
ning around with "chippies," and to Wealthy Wormell she
said that Mr. Scott was running around with other women.
When Mrs. Putman went to Mrs. Scott's the latter told her
on the first day that Scott had improper relations with servant
girls. She also mentioned a relative of Mr. Collins and said
that Mrs. Paisley and Mr. Scott were conniving to do away
with her. Mrs. Putman did not know exactly how, but the
tale of Mrs. Scott was to the effect that she thought they
w^ere in common against her. Mrs. Putman had some griev-
ance against Mrs. Meily on account of some stories that were
repeated as coming from her, and thought she would be justi-
fied in retaliating by retailing some account of Mr. Scott's
visit to Mrs. Meily, and she went and saw Mrs. Scott and
began telling her about Mr. Scott visiting Mrs. Meily. Mrs.
Scott said she knew that already and told the witness that
she had made a visit there and was confident that Mr. Scott
was with ]Mrs. Meily on that occasion. She told the witness
that Mr. Scott had at one time tried to put her in an insane
asylum.
Adolph Herman Grossman says that Mrs. Scott did some-
times complain of Mr. Scott going with women, but she did
not speak of any particular woman.
Mrs. Mary J. Larmer says that Mrs. Scott was very vulgar
and profane in her conversation, cursed and swore, and was
violent.
Charles August Armstrong heard her swear on occasions.
He was a cooper and did cooperage for her. Mrs. Scott did
her business on strictly business principles, and whatever
Estate of Scott. 323
engagements she made she kept to the letter. She said she
had to attend to all the business herself as she had no one
to do it for her, as her husband did not seem disposed or
able to assist her. If Armstrong and Mrs. Scott had a dis-
agreement about the price of her work she would swear at times
at his propositions, but he would not mind it, because it was
her way, and he thought it was a sane act for her to swear
at him.
From these particulars of evidence counsel for contestant
deduces proof of delusions sufficient to overthrow the will as
an offspring of a mind diseased. Mr. Estee claims that there
is here a perfect concatenation of circumstances, conduct, and
conversation. No one link may suffice, but the chain is per-
fectly joined in all its parts. He claims to have shown that
there was no foundation, howsoever slight, for her suspicion
in any of the particulars specified, not a jot or tittle, not an
iota of evidence to sustain the suspicion of the infidelity of
Scott or the unchastity of the venerable sister in law or the
niece of the decedent. The idea of either of these ladies being
intimate with Scott was too absurd to be entertained by a
normal mind. She knew that she had no proof of such a fact
and with the cunning of insanity endeavored to fabricate
proofs of his infidelity by trying to induce others for money
to subscribe to statements incriminating him, but she did
not succeed, because there was no proof possible and those
whom she tempted were unpurchasable for such a purpose.
All this is stated in the strongest manner for contestant:
but were her suspicions of Scott founded on a fixed belief?
Was there nothing to induce belief in her mind, no scintilla
on which to base suspicion — a very meager item, even — which
would warrant her in concluding that he was unfaithful?
There was something in the incident in the hugging of a
servant girl at the fireplace or grate in the parlor which
was related in the testimony of Carl Anderson, when upon
her approach the girl repulsed Scott and he escaped through
the window into the conservatory and the girl explained that
he was only pushing her; this little incident is significant
and might easily induce a jealous woman to suspect the con-
stancy of her husband and to believe that he was in the habit
324 Coffey's Probate Decisions, Vol. 1.
of being unduly familiar with the female domestics in her
household. Her suspicions may have been unjust and her
inferences too general, but that was merely an error of logic
and not an evidence of insanity or of insane delusion. She
had a right to infer however erroneously or from inadequate
premises to a universal conclusion, for false logic or fault}^
ratiocination is far from the manifestation of insanity, so long
as the process is formally correct, not incoherent nor incon-
sequential. Her suspicions or apprehensions that he and
others were contemplating sending her to an insane asylum
or poisoning her may have been unfounded in fact and yet
have some germ sufficient to develop and fructify in her mind
a rational fear that her life or liberty was or would be in
peril from that source.
Mrs. Scott may have reasoned in her mind, however faultily,
that some one meditated terminating her existence in some
furtive manner. It is not hard to conjecture how she may
have sat down and wrought out a theory of poisoning ; her con-
sciousness that her death was regarded as a consummation de-
voutly to be wished for by those who would expect to profit by
her decease ; no regrets in such a case except for the undue pro-
traction of the period anterior to the inevitable event; but
did she say that he premeditated poisoning her with real
belief in it, or was it merely her habit of speaking in an
exaggerated vein, characteristic of persons of more or less
coarse cultivation? What is there in this testimony as to her
suspicions of poisoning? If she really believed that she was
in danger of being poisoned, she would not be apt to allow
the attempt to be successful but would quickly rid herself
of the presence of the designer. A woman of her resolute
will would not hesitate to act at once and thus end the oppor-
tunity of the nefarious plotter. This testimony is colored
and its importance magnified as such points are apt to be
by those interested in presenting the features that for their
purpose seem salient ; but a fear of poisoning is not unreason-
able where elderly persons of wealth are aware that their
juniors are expectant of their demise. The instances are not
few where such hastening of the exit of wives and others is
accomplished, and it is not unnatural or irrational in persons
Estate of Scott. 325
situated as was this decedent to apprehend that impatient
expectants might so act.
It is not necessary to accuse the contestant of an intent to
assassinate his wife by poison or otherwise, for it may be
conceded that there is nothing to justify a suspicion or to
warrant an insinuation of such a design, and that he is the
mildest mannered man that ever entered the circuit of the
clientele of counsel, but that he contemplated her earthly
exit in the order of nature with some sense of satisfaction
and prospect of relief is shown by the deposition of Charles
E. Elliot, a venerable gentleman of nearly four score years,
cousin of the decedent, who saw her at her house in San
Francisco in the latter part of March, 1896, where he met
her husband, the contestant. He had no conversation with
him then and there, but did have a talk with him about that
time at Mrs. Scott's vineyard, called the "Pebble Side
Ranch," regarding the relations between himself and wife.
As near as deponent could remember, Scott said his wife was
crazy or insane ; that she was very mean ; that she gave him
but very little money; that she treated his sons badly; that
she was vulgar and had no religious principles, was very
jealous, and in short he said about everything he could that
was bad concerning her. Elliot said to him, "Why do you
live with her, if she is so bad as you say?" Scott answered
that he was going to hold on ; that she would die very soon
and that his lawyer had told him that she could not make a
will that would stand, and Mr. Scott said to the deponent on
that occasion, "If she don't make a will to suit me. I shall
break it." Most of the conversations deponent had with
decedent occurred when they were driving on several occasions
early in April, 1886. She spoke about Mr. Scott and how
she was disappointed in him; no help to her; no business
capacity; complete failure; she had to do all details herself.
In the opinion of Elliot she was level-headed, smart — a woman
of sound mind.
It is argued that she had a fixed belief in nonexistent facts
without any atom of evidence to support it, out of whioh it
was impossible to reason her and that her mind was infected
bv this insane delusion and no argument could avail for its
326 Coffey's Probate Decisions, Vol. 1.
disinfection; but when her physical condition is considered,
we may take into account the opinion of Doctor Levi Cooper
Lane, given in answer to the questions propounded in cross-
examination by counsel for contestant :
Dr. Lane said that in case of a person, described as in the
question presented, who had stomach troubles and female
difficulties, who mistakenly believed she was being poisoned,
and who almost daily insisted on her relatives tasting her
food before she would touch it, when it did not poison them,
and she saw that it did not have that effect, and she yet
still maintained that her food was being poisoned, and that
this continued for a number of years, with her surroundings
and v/hat she told the doctor, if she did not entertain such
a suspicion, she would have been insane ; her suspicions would
not be evidence of insanity in view of all the circumstances;
if there were no truth in the statements there might possibly
be evidence of some incoherence of intellect. A person
suffering from stomach trouble is almost necessarily irritable
and may lose temper and swear and cut up generally and
break dishes, destroy bric-a-brac, and play havoc with furni-
ture, and yet be of sound mind. The doctor had known cer-
tainly of one occasion where one of the most intelligent men
in this citv, as he was regarded in his lifetime, behaved in
such a manner, smashing chinaware and the like ; he was sane ;
he lived a long time after this incident and he was regarded
as an intelligent man. Dr. Lane spoke from his knowledge
of insanity based upon long and extensive observation.
It may be conceded that she at times feared poison, but if
it were a delusion, in the circumstances of this issue, it must
have been continuous and persistent and operative upon the
volitional capacity; otherwise it is not to be permitted to
invalidate the testamentary act : Estate of Redfield, 116 Cal.
637. 48 Pac. '794.
When suffering from the chronic condition of her stomach,
she may have imagined or believed that her food had been
tampered with, but her mistaken belief would not, as matter
of law, amount to an insane delusion : Estate of Carpenter,
94 Cal. 407, 29 Pac. 1101.
Estate of Scott. 327
Unfounded and unreasonable suspicions are not insanity :
Will of Cole, 49 Wis. 181, 5 N. W. 346.
The deceased suffering from her stomach trouble was at
times peevish and petulant and sometimes suspicious even of
her best friends and intimated fears of poisoning, but never
acted on such apprehensions, thus showing that she had no
fixed delusions thereon. She was a naturally suspicious per-
son and showed this characteristic in the lifetime of her first
husband, whom she undoubtedly loved. She left his home
on one occasion for several weeks on account of suspicion of
the fidelity of Collins, but he courted her with a lover's assidu-
ity, and, induced by aroused affection and his amorous allure-
ments, she returned to bed and board and there remained
until he died and in token of his love and devotion left her
almost his entire fortune, which constitutes the foundation
and bulk of the wealth in this estate.
For five years she remained constant to his endeared mem-
ory. During that period of viduity the characteristics and
peculiarities adverted to continued in manifestation; indeed
these attributes were aggravated by her isolated condition.
She was alone without associates or congenial companions; her
husband and his friends had gone out of her life and she
naturally sought a substitute and successor.
She told Dr. Lane that, after the death of Mr. Collins,
she had a great deal of care and trouble with the manage-
ment of her property, and she had been advised by some of
her friends to marry and get somebody to assist in her affairs.
She had adopted this advice and had accepted Mr. Scott
as her spouse, and had assumed that he possessed the regular
business qualifications to make an efficient auxiliary or to act
as manager of her property, but she soon discovered that
he was destitute of ability to aid her to any degree or in any
manner. She found, in fact, as she said to Dr. Lane, that
his chief object and main design was to secure possession
of her property and that his purpose was entirely mercenary
and selfish, and not any benefit to herself. She was not
willing to allow him to accomplish his object in this regard
and so her domestic life was encompassed by unhappiness.
She was very unhappy nt his conduct. In reference to
328 Coffey's Probate Decisions, Vol. 1.
making a will she solicited Dr. Lane's advice as to what
measures of precaution or circumspection she could adopt
against any assault upon its stability or legal integrity, and
he advised her to select some two or three gentlemen of pro-
nounced professional character and standing in their spe-
cialty, who would be conceded experts in their department of
medical jurisprudence, to decide the question of her mental
status as to sanity, or at least to be prepared to testify in the
event of its ever becoming a practical issue in any litigated
controversy in court. Dr. Lane suggested in this connection
certain names — Dr. Clark of Stockton, Dr. Gardner of Napa,
and one or two others. In their conversations about the tes-
tamentary disposition of her property, the doctor said to her,
"Mrs. Scott, you have a great deal of property; you ought
to give some to charity. ' ' She had been talking about giving
it to Mr. Collins' relatives and her own. She replied that
she had a great number of relatives and she wanted to give
her property so it would help those that were in need. Dr.
Lane said to her that she ought to give something to charity.
"Well," she answered to this suggestion, "I have enough
poor relations for that purpose and I don't propose to give
anything in that way." She visited the doctor a number of
times on the subject of her sanity until it finally became tire-
some. During the years 1896 and 1897 he told her that he
was tired of the topic, and he summed up the situation by
saying she was as smart as any woman he ever saw. She
called to see Dr. Lane several times about the will and about
her property. He knew nothing of the facts except as she
told him — nothing personally about her domestic affairs or
her household. From what Dr. Lane observed of, her and
learned from her, he considered her to be perfectly sane —
entirely sound in mind. He had known her for many years,
when she was Mrs. Collins, and in the lifetime of her first
husband, and during the last two years of her life she visited
him at his office and he visited her at her residence. He was
not attending her then as a physician. She wanted to make
a will that would stand in law, as she had been threatened
that whatever will she made would be broken by her husband,
Mr. Scott. She said that he had made such a threat, and
Estate of Scott. 329
in these conversations she talked to Dr. Lane about her prop-
erty. If this woman assumed that people were trying to put
her in an insane asylum without any iota of basis for her
assumption, and continued for many years to indulge this
belief, still, in the circumstances of this case, she might be
merely the victim of erroneous inference and be perfectly
sane. It might or might not be symptomatic of insanity;
the diagnosis would be dependent upon the entire congeries
of causes or summation of symptoms. If she accused her
husband falsely of holding improper relations with her
servants, black and white, with her near relatives, very old
women, it would seem that she was very jealous ; it would not
be evidence of insanity. She might forget herself tempo-
rarily, but that would not be insanity, even though her husband
had given no reason for her jealous suspicion. Dr. Lane should
say, regardless of the reason or want of reason, while she
might be irresponsible for the moment she would not be in-
sane, she had simply a very jealous temperament. If in the
presence of some persons she pointed out of her window on
the lawn and said, "There's my husband and so and so,"
naming a third person on the lawn with him, when there
was no one at all there, it would be a temporary delusion. If
she pointed on the carpet in her own room to persons who
were present and said, "There is Scott with so and so,"
naming a certain woman, "engaged in sexual intercourse,"
or tantamount words, when there was no such spectacle nor
any person there, it would to the doctor import the offspring
of an inordinately jealous mind ; it would be an hallucination ;
the mind not absolutely normal ; it would be a deviation from
her ordinary and normal condition, but be restricted to that
occasion.
Consider her circumstances: She was inordinately jealous,
even in the lifetime of her first husband, of whom she was
very fond, and who was a man after his kind, engaged in an
occupation that was fraught with temptations to indulgence
in liquor and developed in inducements to pleasures of the
palate. It is not surprising that he drank occasionally or
often to excess; he did drink and at times became intoxicated
and then would express himself in indelicate terms. His
330 Coffey's Probate Decisions, Vol. 1.
wife acquired these habits and took on the roughness and
grossness which were the accompaniments of the times and
places. She was a woman of strong characteristics, strong be-
liefs, strong sentiments, strong speech, and strong purposes,
and indifferent to the conventionalities of the society of the
later and present era of settled social form and orthodox ob-
servances. It might have been different with her in a more
conservative community, although it is not fair to generalize
from the small premise of her special surroundings that the
society of San Francisco was crude and unrefined, for we
know that from a very early date this city contained its fair
proportion of as good and true women as ever adorned any
community. It is historical, and the court has a right to note
it, that in the early summer months of 1849 family homes
began to appear in every direction in San Francisco, and by
the fall of that year they could be said to be numerous, and
from that time forward they steadily increased, and a year
afterward they were a leading feature of the young city, and
for the next few years not even twenty per cent of the
population could be subjected to criticism from the severest
censors. It is true that the obnoxious elements made them-
selves so conspicuous and kept so constantly in evidence and
on parade that one just arriving in the city might imbibe
the impression that the proportion was much larger, but that
this ratio is right may be ascertained by authentic annals,
such as a work of the late Hon. William F. White, entitled
"A Picture of Pioneer Times in California," which is valua-
ble for its accurate data and details, verified by a writer who
with his family, one of whom is now a senator of the United
States, formed a part of this community; but nevertheless
it does not appear that the decedent cultivated this element.
Her associations were mainly such as centered and converged
and crystallized in that class which found its social circle
and status and ethical standard and moral atmosphere in the
saloon, which however reputably conducted, was not naturally
nice or choice in its conventional criteria of the proprieties
of conversation or conduct. In other circumstances a more
pleasing portrait might have been presented of the heroine
of this contest, but such as she was we have her here ; her
Estate op Scott. 331
stomach was weak and sensitive until this condition became
chronic, presenting symptoms not ordinarily understood by
the common mind; her diet delicate, mostly mush, crackers,
juice of beefsteak, and a very little bread; her disposition)
somewhat affected by her dyspepsia; prone to anger, in the
ebullitions of which she breaks dishes and destroys bric-a-brac,
and makes life very tropical for her intimates, employees,
and dependents generally; while so suffering irritable and
disagreeable, otherwise a pleasant person.
In all these circumstances it is not remarkable that she was
troubled with megrims and that her slumbers were broken
by nightmare, when she had an hallucination that a murder
had been committed in the hall of her house, which incident
may have resulted from her oversizing her drams of whisky,
for, according to Mrs. Meily, she was an habitual and hard
drinker of alcohol during her latter years, and an extra
dose of this sort of poison may have been the cause of this
nocturnal aberration. Mrs. ]\Ieily testified that she had seen
her aunt Angelia several times under the influence of liquor,
and it may have been that upon this occasion, when his step-
mother told Wesley Scott that some one was being murdered
in the hallway, when no such transaction was in progress, that
her aspect was so dazed and distraught as to suggest that
the whisky had been exceptionally potent. The distemper
of drink may have wrought this transient condition of her
nerves and temporarily disturbed the diapason of her wits.
She was at times troubled with insomnia, as was natural
with one who was afflicted with an intestinal disease, and
then momentarily, like Lady Macbeth, "she was troubled
with thick-coming fancies that kept her from her rest," but
her mind was not necessarily diseased.
She was a very nervous and unhappy woman, and what
did her husband do to alleviate her distress ? She was living
unhappily M'ith him and he was tolerating her for the sake
of the future when he hoped to possess and enjoy her for-
tune. Why did she marry Scott? Was it for love, or was
it merely a commercial union? Was it solely that she might
have a domestic partner who could manage her affairs, pro-
tect her property, and relieve her of the strain of business
332 Coffey's Probate Decisions, Vol. 1.
cares? The truth seems to be that her motive was com-
posite, and the reasons she gave from time to time are recon-
cilable to this theory. She needed some one as an affectionate
associate in married life — some one to supply the love element
in her nature and to attend to her material interests at the
same time, and when she came in contact with Scott she
imagined that she had attracted her affinity in both regards,
but this may have been an insane delusion, for a short
experience caused her to rue the day she married him; they
were married but not mated, and hence infelicity. Two
motives entered as ingredients in her choice of him, only
one in his selection of her; his was a merely mercenary
motive. She craved for something more than money ; she
believed that Scott could fill the aching void in her heart ;
that she could find in him a suitable successor to her deceased
spouse; but it was a bitter disappointment in every respect.
The contract so far as sentiment went was unilateral; she
wanted a conjugal mate who would relieve her head from
business cares and occupy the vacant space in her heart and
the vacant chair at the table once filled by Collins, but Scott
married her for money; his motive was mercenary and mar-
ital misery followed from his incompatibility and incapacity.
In true love and as a business union this marriage was a
failure. She was jealous, and in the philosophy of love it is
said that this malign sentiment is its bitter fruit, and it sur-
vives youth, especially in women. But it was different with
him; he was not jealous, for he loved her not, although he
had once listened to her, pretending to reciprocate, when she
said she loved him, for
"When a woman loves a man
The man must hear her, though he love her not. ' '
Why did she love him? Is human love the growth of
human will? These are questions that only a woman can
answer, and the age is not yet so far advanced that she can
make response in judicial decision.
"It is not virtue, wisdom, valour, wit.
Strength, comeliness of shape, or amplest merit
That woman's love can win, or long inherit
But what it is, hard to say, harder to hit."
Estate of Scott. 333
It is enough to say that there is evidence in this record that
she did love him, but the love was not mutual and did
not bring life's discords into perfect tune. Her passion was
unrequited and she was conscious that he did not return in
sincerity the sentiment that he professed before marriage
and at the altar. Jealousy is said to be the offspring of love,
and this was decedent's only child. She was enamored of
Scott and in her passion was constantly thinking and talking
of him, for it is true, as George Eliot tells us, that jealousy
can no more lose sight of its object than love.
In regard to him it may be said that for the purpose of
passion it would not be natural to seek satisfaction in the
embraces of antiquity, and it is fair to assume that her com-
plaint that he was not a husband to her was founded on
fact, although he testified that he was a husband to her up to
the day of her death, with all that that implies, but this state-
ment is antagonized by her declarations and by circum-
stances that render its truth improbable. It may be con-
ceded that her suspicions of the fidelity of contestant per-
sisted in, as it is claimed they were, without evidence to
support them and against all reasonable probabilities of
truth have the semblance of insane delusion. Yet it is not
necessarily so.
Observation teaches us that there is a very large class of
people, whose sanity is undoubted, who are unduly jealous
or suspicious of others, and especially of those closely con-
nected with them, and who upon the most trivial, even
whimsical, grounds will wrongfully impute the worst mo-
tives and conduct to those in whom they ought to confide.
This insanity, which is developed in a great variety of forms,
is altogether too common, and too many persons confessedly
sane are to a greater or less degree afflicted with it, to
justify us in saying that because the deceased was so afflicted
she was insane, or the victim of insane delusion. The line
between unfounded and unreasonable suspicions of a sane
mind (for doubtless there are such) and insane delusions
is sometimes quite indistinct and difficult to be defined.
However, the legal presumption is in favor of sanity, and
on the issue of sanity or insanity the burden is upon him
who asserts insanity to prove it. Hence in a doubtful ease.
334 Coffey's Probate' Decisions, Vol. 1.
unless there appears a preponderance of proof of mental
unsoundness, the issue should be found the other way: Will
of Cole, 49 Wis. 181, 5 N. W. 346.
She was suspicious of his constancy. Suspicion is the im-
agination of the existence of something, especially something
wrong, without proof, or with but slight proof; it is an im-
pression in the mind which has not resulted in a conviction.
It is synonymous with doubt, distrust, or mistrust — the mind
is in an unsettled condition. Suspicion existing, slight evi-
dence might produce a rational ultimate conviction or con-
clusion ; this without evidence however slight, would be a de-
lusion. Is there evidence, however slight? This is the test.
The suspicion may be illogical or preposterous, but it is not,
therefore, evidence of insanity: Clapp v. Fullerton, 34 N.
Y. 190, 90 Am. Dec. 681.
A most unwilling witness was Mrs. Louisa M. Putman,
who was very reluctant to testify and who said that her
husband, Dr. Putman, had been greatly opposed to her com-
ing forward in that capacity. She came, however under
constraint, and under the subpoena of proponents, being
served with great difficulty, and here is her story in short
meter :
Mrs. Putman first saw Mr. Scott at Mrs. Meily's house,
730 Union street, between Powell and Mason, in or about
January 1895, at the bedside of Mrs. Meily's sick son, who
Vi'as the husband of the witness and who died in Januarj^;
1895, and was buried from that house. She could not say
definitely how often she saw Mr. Scott in 1895 and 1896,
but it was several times. He usually called in the morning
about 10 or 11 o'clock, on week days; sometimes in the after-
noon; he would remain sometimes fifteen or twenty minutes
or perhaps half an hour, sometimes an hour. Mrs. Putman
knew the decedent and visited her shortly before she died.
Mr. and Mrs. Scott were there several times during the ill-
ness of the husband of the witness. Mrs. Scott introduced
Mr. Scott to the witness there. He always conducted him-
self with propriety in the presence of the witness. Wit-
ness was not residing with Mrs. Meily but would stay a week
or so at a time when she was not otherwise occupied at work.
If witness happened to be unemployed at her occupation
Estate of Scott. 335
she would pay Mrs. Meily a short visit, merely that and
nothing more. "When employed witness was engaged at
dressmaking. She could not say definitely how long she
spent at a time at Mrs. Meily 's but was there, she thought,
in the months of January, February, or March, 1896. Two
months was the longest period of time she was in that house
continuously after she was married to the son of Mrs. INIeily,
but she could not name the two montlis. Sometimes she
would call of an afternoon. Witness -was nursing at the
time and it would depend when she would obtain relief —
sometimes in the forenoon and other times in the afternoon.
While she was on friendly terms whenever she had a little
time off she visited ]Mrs. Meily. She first saw Mrs. Scott
at her house in August, 1897. No one told her to go but she
guessed she was moved by a malicious feeling on her part
toward Mrs. Meily, against W'hom she had a grievance. Wit-
ness had heard that Mrs. ]\Teily had spoken unkindly of her
and she felt unfriendly about it. They never had any
words, no quarrel, but some stories were repeated as coming
from Mrs. ]\Ieily that annoyed Mdtness, so she thought she
would be justified in retaliating by retailing some account
of Mr. Scott's visits to Mrs. Meily. She first went to Mrs.
Garcia, who refused to tell Mrs. Scott; told witness to tell
her herself; witness then went and saw ]\Irs. Scott and be-
gan telling her about Mr. Scott visiting Mrs. Meily. Mrs.
Scott said she knew that already and told witness that she
would give her $500 if she would put in writing charges
against Mr. Scott that would incriminate him with j\Irs.
]\Ieily. Witness could not remember all that Mrs. Scott
wanted on the paper which she desired her to sign. It was
not exactly the writing of the witness, who never made any
remark that improper relations existed between ]\Ir. Scott
and Mrs. Meily, or that she ever saw anji;hing of the kind.
After the first visit ^Nlrs. Scott began sending the house-
keeper, Mrs. Burnham, down to ask the witness to call and
see her. She visited jNIrs. Scott again after the August visit
in response to a request conveyed to her in letters. The
witness wrote a letter to INIrs. Scott about the first part of
September, 1897, in the following words:
336 Coffey's Probate Decisions, Vol. 1.
"You told me .you would say nothing that would bring
me into family affairs, in fact would not mention my name.
Now I am willing to face anything I say, but to be mixed
up in family troubles, I beg you will refrain from asking me
to do such. What I told you was for your own personal
good Mr. Scott said Mrs. Meily was crying all the
time over it. How did he know it? If you did not give
him the address here, who did ? Perhaps ]Mrs. Meily ? ' '
That letter speaks of Scott ; he called on witness and said
that ]\Irs. Garcia has told his wife a great deal or that Mrs.
Garcia had said to him that witness had told or said a great
many things about him, and he asked witness if she had
anything against him. She said she had not. He was a
perfect stranger to her in the first place, and he told her
that his wife and he had some trouble and that she had ac-
cused him of acts that were purely imaginative, simply what
she herself thought, and remarks that the witness was sup-
posed to have made with regard to improper relations, and
witness denied that she ever said so; but there is the letter,
and it speaks for itself. Mrs. Scott told the witness that
she had been to Mrs. Meily 's house twice in one day, that
she could not get in and went away and came back again,
she said that she knew Scott was inside because she felt
something from within, the influence of his personality, mag-
netism, or something of that sort.
It is not necessary to inculpate the suspects in such a
case; it is enough that there were circumstances in the asso-
ciation of the persons to impress the jealous mind, and the
evidence of ]\Irs. Putman so reluctantly and cautiously
educed, even were it but a feather's weight, shows that de-
cedent had material for suspicion. There was at least slight
evidence that her husband was visiting another lady clan-
destinely and surreptitiously, and that was enough to remove
the stigma of insane delusion, although by no means suffi-
cient to justify this court in concluding that her niece was
guilty of misconduct. Mrs. Meily 's entire innocence in in-
tent and act is consistent with the ill-timed and indiscreet
visits of Scott to her house, so far out of his direct course
from his own home to his office.
Estate of Scott. 337
Xo matter how tenuous these threads of testimony are,
they are sufficient to support her suspicion. In regard to the
caressing of the servant girl it was denied by Mr. Scott when
on the witness-stand. In reference to the Meily matter Mrs.
Burnham testifies that Mrs. Putman came to Mrs. Scott with
a story about Mrs. Meily. Mrs. Meily testifies that Scott
did visit her repeatedly, at her home, 730 Union street, on
his way down town from Franklin and Sacramento street
to his office in the Merchants' Exchange. It is only neces-
sary to indicate these points of departure and terminus in
his daily travel to illustrate at what inconvenience of time
and circuitousness of route he paid these visits to her alone
and in the absence of her husband. Mrs. Putman knew of
these visits and testified that she went to Mrs. Scott with a
story about Mrs. Meily for the purpose of maliciously injur-
ing that lady, but whatever was her purpose or her griev-
ance, she added fuel to the flame of jealousy already exist-
ing in the mind of Mrs. Scott, who was impressed by her
tale. Still there was no ultimate conviction in her mind;
she had doubts; and constantly sought information to re-
solve them. She employed detectives, who seemed to have
deceived her and conveyed their stories to her husband, with
whom they have been since on intimate terms. She offered
rewards of proof of the facts; tried her own hand at detec-
tive work; visited Mrs. Meily to ascertain the truth; inter-
viewed Mr. Scott's gentlemen friends to elicit information;
and in many ways showed that she had no fixed belief of
Scott's infidelity, and the statements on that subject which
she made were mainly to Scott's particular friends and her
servants who faithfully communicated them to him and have
since reproduced them in evidence. William Warwick is a
sample of those who practiced the system of espionage in
her behalf. ]\Irs. Burnham is another who made a pretense
of acting as a spy, disguising herself and deceiving her
mistress, to save her situation. This lady naively confesses
that she practiced deceit and duplicity and did not even
make an attempt to act the part she pretended to play; but
she failed to save her situation, leaving there on the 4th of
December, 1897, and did not return to the service during
the lifetime of decedent. Subsequently she did so return
Prob. Dec, Vol. I — 22
338 Coffey's Probate Decisions, Vol. 1.
and is now an inmate of the Scott mansion. In respect to
this item of infidelity, it may be said that there being slight
evidence to support suspicion there was no delusion ; and there
being no settled conviction, there is no delusion.
Was the expressed apprehension of the decedent that con-
testant had conspired to confine her in an asylum an insane
delusion ?
There is evidence ample in the record that Scott twitted
her from time to time with being crazy, and said that he
could break any will that she would make, and he is here
now engaged in the execution of that threat. That he
taunted her with his ability to set aside her will, as he could
prove her insanity and that he nagged her on this point with
the view of instilling into her mind some doubt of its sound-
ness is established to the satisfaction of the court. Undoubt-
edly this worried and annoyed her, and it was but natural
that she should entertain an apprehension that he and his
close friends might conspire to that end. The testimony of
Carl Anderson, the coachman, although denied stoutly by
contestant, is circumstantially credible in respect to the con-
versation in the coupe; that they had a quarrel on the way
out to the Cliff House, where Scott left and she returned
alone in the vehicle driven by Anderson, is certainly true,
and I can perceive no evidence of animus in this witness
against contestant to justify me in rejecting his testimony
Anderson may himself have said, as is testified to by the im-
peaching witnesses, that she was "crazy" or "absent-
minded," or he may merely have advised some of the per-
sons employed by her or others not to mind her quick tem-
per or swearing as she did not mean it, but that does not
authorize the court to discard or discredit his entire state-
ment. Mr. Ball, recalled to impeach this witness, testified
that Carl Anderson said to him in his office on or about
February 1, 1890, that Mrs. Scott was crazy. Anderson
came to the office of Ball on some errand for Mr. Scott, who
was absent at the moment. Ball asked Anderson, "How is
the old lady?" and Anderson answered, "Just as crazy as
ever." In this connection it may be worth while to allude
again to Mr. Ball's evidence. Mr. Ball was present when
the decedent was married to contestant, who had an office
Estate of Scott. 339
with him at that time, dating back to 1884 or 1885. When
Seott was east, Ball visited her two or three times a week
and remained there from 6 or 7 to any hour up to 12 in the
evening', and continued to visit her up to 1892, but did not
remember being there in 1893. She visited Ball's office in
1892 and asked him if she looked crazy enough to be put
into an insane asylum. "I thought perhaps it was one of
her lucid intervals." In 1890 she said to Scott in the pres-
ence of Ball, "That E. W. wanted to look out or she would
use a pistol on him." During Scott's absence in the east
Ball was at her house twice a week for four months ; her
conversation was continually on the same topic and was very
tedious and tiresome — indeed, became very monotonous.
One time they had a drink together; they were in the din-
ing-room and she went out of the room and brought the
whisky in a small decanter. Sometimes he would go there
and dine with her ; other times he would go there immediately
after taking his dinner, say about half-past seven in the
evening, and on one occasion in the course of her conversa-
tion, doubtless after draining the decanter, Mr. Ball paints
a vivid picture of an incident that occurred consequent upon
a remark he made to her. "She instantly became like an
enraged tigress — jumped up from the table. Her counte-
nance changed, and she looked like a fiend. Her eyes hung
out of her head, and she smashed the table, a marble-topped
table and she said: Mr. Ball then recites the language of
this fiend-like woman after she had jumped up in the man-
ner of an enraged tigress and with her paw fractured the
marble-topped table. Mr. Ball's delineation of this unfor-
tunate victim of morbid delusion was realistic in the extreme.
Her appearance, attitude, and action so artistically arranged
in Mr. Ball's description portray one demoniacally possessed.
Uhlhorn testifies that when he was introduced to Mrs. Seott
by ]\Ir. Scott in August, 1891, the first thing she said to him
was that Mr. Scott and Mr. Ball were trying to railroad her
to the insane asylum.
It is a curious fact if this woman were as crazy as they
would make her out through all these years, from 1890 to
her death in December, 1897, and if she had murderous
designs, as some of them say, that they would care to visit
340 Coffey's Probate Decisions, Vol. 1.
her or live with her or be under the same roof in such close
and constant intimacy with a dangerous lunatic.
Anderson testifies without appearance of bias, and on the
whole seems well disposed toward Scott, who, he says, was
quiet and good tempered, as a rule, although at times he
would provoke her. Scott is a superficially smooth, plausible
man, with a pleasing exterior, and understood his interest
sufficiently to curb such temper as he had, at times mani-
fested some spirit, when thrown off his guard; but Carl
Anderson does not appear to have any ill-will toward him,
and when he relates what occurred on the trip to the beacb.
and what he told Scott at the stable in answer to his inquiry
as to what she said, after Scott left the coupe at the Cliff,
there seems no sufficient ground to doubt it. Mr. Scott on
his recall denied the main feature of Carl's statement and
said ''he was never in the habit of making a confidant of
servants," but it appears that the coachman was an old ser-
vant of eleven years' standing, and such servants are often
the voluntary or involuntary recipients of family confi-
dences. It is fair to infer from this and other statements
in the record that Scott did say what was imputed to him
and tormented her with insinuations as to her sanity. She
was thus led to believe that he desired to have her so
situated that he could enjoy the fortune for the sake of
which he married her, and that when he should be no longer
handicapped by her presence he would pursue the path of
pleasure unmolested so long as her wealth would be under
his control without interference from her. There was some
evidence then to support this belief, and it was, therefore,
not an insane delusion.
It is proper to note, without invidious reflection, that the
witnesses for the contestant may be placed in two categories :
1. The intimate and personal friends of the contestant,
E. W. Scott.
2. Persons who for a period were in the employ of the
testatrix, Mrs. Scott, and who failed to retain their situa-
tions, and who for one reason or other have been dissatisfied.
Among these in the first category we find Hammond, the
friend and office companion of contestant; Dyer, personal
friend introduced by Scott ; Perkins, personal friend ; Estella
Estate of Scott. 341
Burnham, private seamstress, and now in the employ of con-
testant ; Morton, the bookkeeper, personal friend introduced
by Scott; and Uhlhom, another personal friend of contest-
ant.
In the second category, Catherine O'Connor, who was
employed in a sort of general capacity doing all that there
was to do and doing all the talking with Mrs. Scott, and did
more talking with her than anything else, arid who from the
voluble manner in which she gave her testimony was quite
capable in that respect ; Joseph Mortier, orchardist and wine-
maker of the vineyard; Ida Gustafson, Sena Cook, Ulrica
Anderson, house servants ; Talman, the chicken-man ; Mrs.
Mary J. Larmer, nurse in house of Mrs. Meily's mother;
Fred Bockwoldt, erstwhile foreman at the Scott ranch; Mrs.
Ella Joseph, colored domestic in the Scott mansion; Froe-
lieh, the wine broker who had litigation with Mrs. Scott ;
O'Dea, the plumber; and finally Elizabeth Jane Richards,
who worked for her from 1890 until the death of testatrix,
in December, 1897, and whose testimony can hardly be
treated with the traditional tongs, but as a specimen of her
feeling toward the deceased this charitable observation may
be culled from the record: "Mrs. Scott said that she would
be dead and stiff in hell by Christmas day. I guess she was. ' '
This witness made this remark professing at the same time
to have been very friendly with the decedent. As a sample
of her reckless statements on the stand reference may be
made to her testimony that decedent employed and dis-
charged as many as three girls in a day, and that they would
not stay because her language and habits were so bad, and
that there was not food enough for them. When the court
called the attention of this witness to the fact that three
girls a day would be many in a month, she responded that
she did not think that decedent had so many in a month
but she had one every day in the month. This woman's
extraordinary nerve in voluntarily narrating incidents
from which even a degenerate masculine mind would revolt
was so abnormal as to shock every one within hearing and
to cause the counsel for contestant to suggest that if it were
to continue, the case had better proceed with closed doors;
yet she affected delicacy in reciting the remarks of dece-
342 Coffey's Probate Decisions, Vol. 1.
dent, saying she could not explain all the language used. "A
man might do it; not a lady." Yet notwithstanding the
brutish behavior and ineffable grossness of the decedent,
from the first day to the last, this lady remained with her
for eight years.
Mr. Estee, of counsel for contestant, in commenting on the
mode of conducting trials of this kind, made some remarks,
the substance of which the court has preserved, because of
their general value. He said that the asperities generated
in the course of controversy should cease when the time for
argument arrives; then the heat of the trial being over the
cool reason only should govern ; the abuse of one attorney
by another is not argument and can avail nothing before a
court constituted to try a cause, nor is the' abuse of witnesses
serviceable in the illustration of the important issues in such
a case. Most men and women are honest, women as a rule
more so than men, but the intentions of most are upright
and desirous of honest dealing's. Some men make poor wit-
nesses, most women show to poor advantage on the witness-
stand, but that is not because they are not telling the truth
but because they are so constituted that their feelings are
enlisted and their sensibilities are superior to those of men
and not so easily controlled. It is proverbial, therefore,
that women are poor witnesses; so with old men, who seldom
do well when under examination of counsel in court; they
mean to testify truthfully, but because of age or sex are
easily disturbed in their train of thought and current of con-
nected discourse. Counsel therefore did not undertake to
descant upon the duplicity or deceit or falsehood of wit-
nesses whom he did not believe to be in any way guilty of
perjury, but who by reason of feeling or age, or other natural
accident of constitution, may have colored or exaggerated
or innocently diminished or distorted the facts in their
testimony. Counsel has the greatest respect for Dr. Lane
personally and in' his professional character, but thought his
feelings dominated his evidence; as for Mrs. Richards, he
did not think she was a good witness, but she was entitled
to animadversions to no such extent as was indulged, and
counsel for contestant knew her to be a good woman not-
Estate of Scott. 343
withstanding the unpleasant tenor of her testimony, which,
being the truth, she was bound to disclose.
The court is in perfect accord with the sentiments of the
learned counsel, and if the lady whose testimony has been
presented has been dealt with unfairlj^, she may abide by
the record which will be the final test for all concerned.
Opposed to the witnesses enumerated are those for the pro-
ponents, whose character and standing are not challenged,
save in some exceptional cases, such as poor Pontus Ahlstedt,
whose prenomen provoked a pun, and Carl Anderson, whom
counsel for contestant thought it not necessary to abuse be-
cause he was a poor, ignorant man who got mixed up in
his memory and substituted' imagination, as much as he had
of it, for actual occurrences, and counsel thinks it is charity
to Carl to say he was mistaken; but as to the others, they
are let off lightly, with the suggestion that they are mere
business acquaintances and not up to the standard of Uhl-
horn, Dyer, Perkins, Richards, and the others already cited
and quoted; but many of them had large opportunities to
•observe and belonged to an intelligent and discerning order
of observers ; if their testimony was of the negative kind,
in some instances, it was of a high character and from per-
sons not apt to be deceived or mistaken, and met the improb-
ability of much of contestant's positive or affirmative evi-
dence.
In connection with the witnesses for the contestant there
are many circumstances of suspicion giving color to their
testimony. Some of these suspicious circumstances may be
mentioned ; such as the method of introduction of Major
Hammond, IMr. Scott's office companion; the peculiarities
surrounding the sudden desire of Scott to introduce Uhlhorn
leaving Uhlhorn alone with her; the dinner which followed
at which Scott did not participate ; after that the dinner
at the invitation of Scott; the scene in the parlor when she
was left alone again with Uhlhorn ; the suggestion of Uhl-
horn at his first visit that she was crazy; the line of real
estate men introduced by Scott to sell her property, and
the care and zeal with which they pursued their wealthy
(juarry : the fre(|uent visits and the time they spent in the
pursuit, notwithstanding their settled conviction at the very
344 Coffey's Probate Decisions, Vol. 1.
outset that she was crazy and could not competently trans-
act any business of importance; the fortunate circumstance
of Annie Robinson going to the office to obtain a witness
to an instrument ; the chance meetings on the streets and
on boats; the remarkable ability to discover and marshal ser-
vants of years gone by who had been dismissed from em-
ployment; many of these discarded domestics are brought
in to testify to trivial transactions, inconsiderable incidents
and segregated circumstances, designed to promote the pur-
pose of contestant in traducing the memory of deceased and
to expose her infirmities of temper and magnify her foibles
into the dimensions of disease of mind, every atom of acerb-
ity on her part and every ebullition of anger, no matter how
evanescent, is exaggerated and accentuated as evidence of
insanity.
The value of the evidence of business men and acquaint-
ances acquired in commercial dealings has been favorably re-
garded by the courts in all cases of this character, and the
persons here produced by proponents are certainly entitled
to credit within the sphere of their observation. A brief
resume may here be given of the evidence adduced in favor
of the sanity of the testatrix :
Edwin Lewis Brown was an accountant and bookkeeper
for the decedent for some years after 1879. Brown used to
go to her house at stated periods to make up the books. She
was a shrewd and suspicious woman, distrustful to a degree.
She was aggrieved apparently at her husband, Mr. Scott,
and spoke of her suspicions of his fidelity to her. She said
she married him because she loved him and she wanted some
one to handle her afl'airs, and Scott was reported to her as
a business man and was introduced as such. She said she
did not think he reciprocated her affection, and she sus-
pected he was not true to her, as he was no husband to her
and she knew enough about men to know that this was be-
cause he was going with other women. She stated on mora
than one occasion that Mr. Scott had charged her with be-
ing crazy or said that she was crazy, and told her so to her
face, and such remarks had a tendency to provoke and worrjr
her ; she was sane.
Estate of Scott. 345
George Swall knew Mrs. Scott since 1885, and thought she
was sane.
Mrs. Nellie Swall knew decedent all her own life and be-
lieved her to have been sane.
Gustave Messinger, a fire insurance agent, knew her for
twenty-three years, and handled her insurance about three
years prior to her death ; saw her three or four times a year,
and carried about $123,000 for her. She always selected
her own companies, giving particular personal attention to
the paying of premiums and the exacting of receipts, for
she would not trust anyone to pay the premiums, not even
this witness, and in his opinion, from her appearance and
manner of doing business, she was rational.
Sumner C. Murray, a carpenter and builder for thirty
years in San Francisco, knew the decedent and worked for
her at least a dozen times in the two or three years before her
death, always dealing with her personally. Her conduct
and appearance was rational, and in his opinion she was of
sound mind.
"William li. Rhodes, engaged in the safe deposit depart-
ment of the California Safe Deposit and Trust Company,
knew decedent as a customer of that concern for two years.
Had many conversations with her on her visits to that place,
sometimes for a few minutes and sometimes for as much as
half an hour at a time. Saw her once a month or once in
two months; in his opinion Mrs. Scott was perfectly sound
in mind.
Mrs. Olivette M. Folsom testifies that she has been mar-
ried about ten years. Her mother in law died about two
years ago of a stomach trouble. She had sufi'ered several
years prior to her death. The senior ]\Irs. Folsom came to
this coast on the same steamer with Mrs. Scott and the
friendship continued until death. Each had this similar
chronic complaint? and both had the same physician. They
used to compare notes as to their symptoms. After the sen-
ior Mrs. Folsom 's death Mrs. Scott used to visit the junior
repeatedly, which visits were returned, and the young wo-
man went to drive on a number of occasions with the elder
one, and they talked habitually of the symptoms of Mrs
Folsom ill her last illness. The mother in law of witness
346 Coffey's Probate Decisions, Vol. 1.
had to be very careful in her diet in the last year of her life.
Witness heard from them that her mother in law and Mrs.
Scott came out to California together. She heard Mrs.
Scott complaining of her stomach troubles; the two talked
before her on the subject matter of their abdominal ailments.
She never heard Mrs. Scott accuse anybody of attempting
to poison her; never heard her use profane, vulgar, or ob-
scene language or say or do anything unbeseeming a- lady.
She was perfectly sane. Witness gave as her reasons that
she always conducted herself in a rational manner and talked
sensibly, her conversation was the same as that of any other
sane person. In all these conversations there was no sug-
gestion made by Mrs. Scott that she had been poisoned, that
she thought her trouble arose from poison, or anything what-
ever about poison.
Robert Frank Clark, in the insurance line for twenty years
last past transacted some matters for and with decedent. She
did business the same as anyone else. Clark saw her at her
house, talked with her for as much as half an hour at a time.
The conversation occurred in a little room off the hall, ap-
parently a reception-room. Decedent may have talked about
her properties in a general incidental way. She alluded to
her physical infirmities, giving Clark to understand that she
was possessed of a very sensitive stomach and was of the
dyspeptic order. Witness thought she was very suspicious
in business matters, a nervous woman. She never told Clark
that she feared being poisoned. He never saw her excited.
She was emphatically sane. Clark gave as reasons for his
opinion that she conducted her business with scrupulous care
in regard to data and details, very exact in money matters.
She never talked to him about her domestic affairs. The
transactions of witness with her were from November, 1886,
to November, 1893. ■ .
Amanda Johnson was employed by Mrs. Scott for nine
months in 1893. Decedent was delicate, just sick. She did
not tell witness what was the matter. She took massage
treatment while witness was there, who used to have to stay
in the room during the time. While the rubbing was going
on decedent would have some covering over her. Never
heard her say that she was in danger of being poisoned.
Estate of Scott. 347
She was not easy to get along with. She used to become
angry sometimes. She said she had too much business to
attend to ; that she thought Scott did not care for her be-
cause she was too old ; that he drank sometimes ; that they
would try to break her will when she was dead by trying
to prove that she was crazy, that Scott would try and do
this. Once when the witness was with her passing in sight
of an insane asylum, decedent pointed in that direction and
said that Ball and her husband had picked out a room in
that institution for her. In the opinion of the witness Mrs.
Scott was sane.
George A. Folsom came out to this coast on the steamer
with decedent, 1857, and afterward the acquaintance con-
tinued here. He saw her three or four times after her mar-
riage to Mr. Scott in 1889 ; the last time in November, 1897.
She was perfectly sane.
Joseph Henry Marshall, a resident for thirty years of this
city, a salesman for the Dunham-Carrigan Company, deal-
ers in hardware, knew Mrs. Scott as a customer of that firm
years ago. Her transactions with the witness were purely
on business and continued for a period of six years. The
acquaintance was begun in the store where witness was em-
ployed. She came about once in two or three months, per-
haps about thirty times in all. She was very bright in mak-
ing purchases, in looking after cash discounts. She came
about once in three months. IMarshall thought she was per-
fectly sound in mind and very bright.
James S. Bock, floor superintendent of Newman & Lev-
inson, on Kearny street, for twelve years, knew decedent as
a customer since before she married Scott and had many
conversations with her on matters connected with her pur-
chases. She was very reserved and aristocratic in her de-
meanor and mannerisms. She was always dressed up to
date, very particular as to appointments of apparel and a
close and exact buyer, a hard customer to please, with an
excellent knowledge of fabrics and a good judgment user in
the selection of materials. She always wanted the latest
styles and she was a good judges of modes. Had no con-
versation with her except in the line of his calling. She
was sane.
348 Coffey's Probate Decisions, Vol. 1.
John M. Ver Mehr deposed that he was an assistant ac-
countant at the California Safe Deposit Company, and knew
the decedent as a customer; saw her many times but had no
considerable conversation with her, but so far as he could
judge Mrs. Scott was perfectly sane.
John J. Doyle knew Mrs. Scott since 1888 and had busi-
ness with her down to November, 1896. Witness has been
engaged since 1881 in selling the product of the vineyard
Las Palmas, which is by the road three miles and a half
from the Scott ranch, the Pebbleside. She often came to
his office in the Safe Deposit Building to consult about the
price of wine and other cognate matters. Had no conver-
sations with her except on business. She impressed him as
an intelligent and shrewd woman of business and had a good
knowledge of the market generally. She was thoroughly
sane; conversant with the condition of the market and con-
nected in her discourse, discussed the future of the market
and reasoned well upon the probabilities of prices.
Sarnuel G. Murphy, president First National Bank, knew
Mrs. Scott since January, 1896, and she was sane beyond
any question.
Miss Clara L. "Wilson knew Mrs. Scott twenty years. Had
seen her often in (he last ten or twelve years. When' she
was out riding in this city she frequently stopped at the
house of the witness. She ased to talk to the father of
witness, Ezekiel Wilson, about her vineyard and some prop-
erty she had on Point Lobos Avenue and some horses. Wit-
ness last saw decedent in 1897, and in her opinion Mrs.
Scott was perfectly sane.
Thomas Brown, cashier of the Bank of California, knew
Mrs. Scott as a customer of that institution in which her ac-
count was closed prior to her death. She was sane. His
opinion was based on observation of her in transactions with
the bank. He had no other means of judging of her mental
condition.
William Plageman, engaged in the milling business in this
city, knew Mrs. Scott, and had conversations with her on mat-
ters of business. In his opinion she was sane, and the wit-
ness saw nothing in her action or talk to indicate insanitv.
Estate op Scott. 349
Ezekiel Wilson, nearly eighty-two years of age, and a resi-
dent of San Francisco for forty-eight years, and very well
known during all that time, knew the decedent intimately for
twenty-five years. Never heard her swear or use unseemly
language. She was always a lady. She talked about her
health, stomach trouble, dyspepsia, had to use care in her diet.
She was a very bright, intelligent, first-class business woman,
rational and shrewd in her ideas. She was sane and he never
thought otherwise. Her conversation and conduct showed
sanity.
C. A. Armstrong, already alluded to elsewhere, thought
she was sane.
As to the habits of contestant it is not open to doubt upon
the evidence that he sometimes took a drop too much. In his
own testimony he says that for two or three years when he
was selling wine and associating with drinking men he may
have drank a shade too much, but he was never under the in-
fluence of liquor to an inordinate extent; he was always able
to take care of himself, and did not need aid of any person
to assist him home or otherwise. The testimony of Berry,
Coyle, and Kelly, hackdrivers; Wallace, car conductor, and
farmer Ahlstedt, is hardly overcome by this general denial
of contestant. It is not surprising that this gentleman at
times was tempted beyond his powers of resistance, for such
a dragon as he makes out decedent would drive a regiment
of teetotalers to drink. "The man had a shrew for a wife
and there could be no quiet in the house with her." This
phase of the case may be passed without further remark.
In regard to the evolution of these testamentary instru-
ments we must consider at some length the evidence of those
immediately concerned in and about the act of execution.
Philip G. Galpin began his practice in San Francisco as
early as 1858, and has been identified with his profession iri
tills place since that time, and for more than twenty years
continuously has resided in this city, engaged in active and
extensive legal business. Mrs. Angelia R. Scott came to his
office in relation to the drawing of the document dated Octo-
ber 22, 1897. to which his name is subscribed as a witness in
association with J;icob C. Johnson and Edward li. Horton.
350 Coffey's Probate Decisions, Vol. 1.
He made a draft from the instructions given to him by her.
She gave the details of the devises and legacies. He first
made her acquaintance after she married Scott — to the best
of his memory a short time before the making of the will in
1891. The witness identified his signature on the instrument
dated October 22, 1897, and also the signatures of the other
subscribing witnesses, Jacob C. Johnson and Edward H. Hor-
ton, just above his own, and stated that he saw the testatrix
write her name in their presence. At that time the decedent
said that she published and declared it for her last will and
testament. From the time witness first knew Mrs. Scott she
came occasionally to his office, during the last few years a
great many times. He prepared the paper of October 22d,
at her direction.
Mr. Reuben H. Lloyd was also consulted. Mr. Galpin
never had any conversation with Mrs. Garcia in connection
wdth the drafting of the codicil. Neither she nor Mrs. Ger-
rish was ever present at any of the interviews. Mrs. Scott
always came alone. She gave the data and information ob-
tained in drawing the will. At first, she stated generally
what she wanted to do ; then when it came down to a divi-
sion among the different parties in interest, she made a list
of the names that she gave to witness and indicated what
fractional interest each was to receive, and then from time
to time she would keep changing these interests, substitut-
ing different fractions opposite different names. She was
engaged in this way for two or three weeks. She would come
to his office, perhaps twenty times in all, and suggest changes
in the will. The witness formed the opinion she was sane,
and judged so from her manner and appearance and her
conversation and mode of doing business. He had no rea-
son to suspect her -sanity. Witness had no other business
with decedent for some short space prior to the time she
commenced talking about the will. She began to consult
him on that subject more than a month before the date of
the execution of the codicil, October 22, 1897. During that
period that was the only transaction between them as attor-
ney and client. She said she desired to give ]\Ir. Scott ex-
pressly what she had given him in the will which was drawn
Estate of Scott. 351
by the witness in 1891. She said that she was attached to
his children and did not regard them as responsible for his
shortcomings; that she was inclined to give them something-
which she had not done by the former will, and desired Mr.
Galpin to so fix that Scott's share should be the same and
that the amount to his children should be specified. She
also said she was very apprehensive that the codicil would
be broken and desired great pains taken. She desired a will
so drawn, if possible, that it could not be broken, and also
she wanted great care taken that it should not be stolen, which
she apprehended might happen. Decedent informed the wit-
ness that she was told that Mr. Estee and Mr. Ball would un-
dertake to break this will. She was very anxious about the
safety of the will and codicil and told the witness that she
proposed to put it in her box in the Safe Deposit Building,
and consulted him as to how she could do that and prevent
some person obtaining access to the box and purloining the
paper after her death. The codicil was drawn in duplicate,
at his suggestion, to anticipate its possible loss. One copy
was attached to the original will of 1891 and the other copy
was retained by him for a while and kept in his safe and
then IMrs. Scott took it away. She was a very suspicious
woman. She said she would put that will where she thought
it would be safe. She did not disclose the place where she
was going to put it. Subsequently it was returned to him
and is now in his possession. The witness had no recollec-
tion of Mrs. Scott's saying anything about community or
separate property, but she did say that a large part of her
property was derived from her first husband, Salvin P. Col-
lins, and she thought that it was but right that she should
remember his relatives in the will.
Edward H. Horton has been manager of the house of J.
C. Johnson & Company on Market street for about fifteen
years. J. C. Johnson has been dead for some months. The
late Mrs. Angelia R. Scott used to call frequently there and
the house had transactions with her in selling goods. After
the death of Mr. Collins she used to come to obtain advice
from Mr. Johnson about her business affairs, and in the last
ten vears Mr. Johnson was absent a good deal on account of
352 Coffey's Probate Decisions, Vol. 1.
illness, so she consulted witness many times. She spoke to
him about the will and she told him that Mr. Scott was con-
tinually nagging her about making a will and that sometimes
Scott made her sick by this talk. Horton identified the sig-
natures to the different instruments. One was that of his
uncle, Jacob C. Johnson, and the other his own, and the other
that of Mrs. Angelia R. Scott, subscribed to the instrument
dated September 7, 1891; also the same may be said of the
paper dated February 25, 1892; likewise the same as to the
third paper appended dated October 22, 1897, to which a
third signature, P. G. Galpin, is subscribed. Decedent de-
clared the first to be her will, and signed it and asked him-
self and Mr. Johnson to be witnesses and they signed in her
presence. It was the same of the second and third papers.
Horton 's recollection is that one will was executed in du-
plicate, she saying that if one were lost the other would serve.
Mrs. Scott told witness that Scott was worrying her to death
about her will; that he was making her life a perfect hell
on earth ; that he said he could smash any will that she could
make. She told him that Mr. Scott was always at her and
annoying her about the making of a will and saying to her
that she was ' ' crazy as a bedbug. ' ' Witness advised her that
she might have that settled by an examination by competent
physicians and this was done afterward at the time of the
execution of the third paper, October 22, 1897, in the office
of Mr. Galpin, the attorney. After the examination she
came into the room where the witnesses were in waiting and
said that she was all right and that she was sane, and those
present assented to that proposition with the remark that if
she were not sane no one was. The witness gave it as his
opinion that she was sane.
We come now to an important item of evidence in this
case : The examination of the decedent by the doctors, which
it appears was the result of suggestions emanating from Mr.
Horton and Dr. Lane. Counsel for contestant comments on
the singularity of this circumstance, and thinks its unusual
character significant, and cites a case in Oregon in which a
similar proceeding was regarded as an unusual precaution
and itself importing a consciousness of the existence of the
Estate of Scott. 353
very fact inquiry into which it was intended to foreclose, and
that, as in Twine's case in Coke's Reports, it was like a clause
in a deed that it was made honestly, truly, and bona fide, and
would lead to a suspicion against the integrity of the instru-
ment: Greenwood v. Cline, 7 Or. 28.
As against these dicta and in connection with the con-
sideration of expert testimony in general, reference may be
made to the opinion of Dr. Clouston, an eminent alienist, in
his Clinical Lectures on Mental Diseases, in which he says,
in regard to will-making, that the great trouble is that medi-
cal men are usually not consulted at the time of making the
will, when the real capacity of the testator could be exam-
ined into, but are placed on the witness-stand after he is
dead, with one-sided imperfect information, and with every
motive on the side calling the experts to prevent their getting
at all the facts. It is most important, says Dr. Clouston,
that a skilled and experienced physician should be asked to
examine into the testamentary capacity of such cases before
the destination of great sums of money is irrevocably decided
by a document that above all things needs soundness of judg-
ment for its validity. It would be well were qualified physi-
cians oftener called for this purpose.
In the Oregon case it may be noted that the will was not
set aside upon the ground of insanity but upon that of un-
due influence, and in the case at bar there is no evidence of
undue influence. The facts as to the certificate in this case
were brought out first by the cross-examination of Dr. Will-
iam Henry Mays, who was called as an expert by contestant,
and whose ability is admitted and experience exceptional in
mental diseases.
Dr. Mays was for two years the assistant physician for
the insane asylum at Stockton and also for an equal period
superintendent of that in.stitution, and he is a graduate in
medicine of the University of California. In his direct ex-
amination he said in answer to the hypothetical questions that
he considered the person described insane, a.ssuming hypothe-
sis. About all the constituents of insanity were present in
that (luestion ; fixed delusions as to various fictitious circum-
stances, thought by the person to be facts without any basis
Prob. Dec, Vol. T — 23
354 Coffey's Probate Decisions, Vol. 1.
for belief. On cross-examination Dr. Mays said he knew the
late Mrs. Scott; met her at Mr. Galpin's office on the occa-
sion of the execution of the codicil. His acquaintance with
this case began in this way : He was called by Mrs. Scott her-
self to testify or to give a certificate as to her sanity at a
particular moment. He knew Mrs. Scott prior to that time.
He called at her house once or twice before at her request.
On the first occasion he had a conversation with her for three-
quarters of an hour or perhaps a full hour and on the sec-
ond occasion for perhaps an equal space. The first time was
about a week before the meeting at the lawyer's office and
the second two or three days prior to that. The purpose and
object of these conversations was on her part to acquaint the
witness with her and to enable him to form a judgment of
her sanity. She did not tell him that in so many words, but
she exhibited her books and accounts and went over them
with him to a certain extent to show apparently that she was
a bright business woman. He met her after those conversa-
tions in Mr. Galpin's office in conjunction with other medi-
cal gentlemen for the purpose of testifying to her mental
condition at that time with the view of her making a codicil.
That was the third time he met her. The date is in the codi-
cil but he did not remember the date. The interview on that
occasion took about one hour and a half. There were pres-
ent Mr. Galpin, Dr. Robertson and Dr. Gardner, of Napa,
himself, and INIrs. Scott. Mrs. Scott was left in the room
with the witness and the other physicians for the greater
part of an hour, perhaps, hardly as long as three hours; it
may have been two hours. The three physicians were there
to investigate into her mental condition at that time prior
to her signing a codicil to her will, it being her wish that
her sanity be established by these examining physicians. She
announced that as her object, saying she was apprehensive
of the will being attacked after her death on the ground of
her insanity. They conversed with her with a view of as-
certaining her mental condition ; talked with her about her
husband and about her relations with him; talked about a-
Mrs. Meily. The doctors referred to all these matters ; they
made as thorough an examination as was possible then and
Estate of Scott. 355
there with no counter-evidence. The physicians were called
by Mrs. Scott and after the examination they signed a cer-
tificate of the result in answer to a request in writing, which
request and certificate are as follows :
"To Drs. Gardner, Robertson, and Mays:
' ' Gentlemen : Having been informed that the husband of
Mrs. Angelia R. Scott proposes to break any Will that IMrs.
Scott may make, and being desirous to perpetuate evidence
as to her mental condition at the time of executing the Codi-
cil to her Will this 22nd day of October, 1897, I would be
pleased to know what her mental condition is.
"October 22nd, 1897.
"THILIP G. GALPIN."
"San Francisco, October 22nd, 1897.
"In compliance with the above request, we have this day
carefully examined into the mental condition of Mrs. Angelia
R. Scott, and in our opinion she is of perfectly sound and dis-
posing mind.
W. H. MAYS, M. D.
J. W. ROBERTSON, M. D.
"A. M. GARDNER, M. D."
Another paper was written and signed by the witness and
delivered to Mrs. Scott through the mail on the day of its
date, October 22, 1897, and reads as follows:
"San Francisco, October 22nd, 1897.
"I have this day in compliance and in company with Dr.
Gardner and Dr. Robertson, at the office of Attorne}' Gal-
pin, made a careful examination of Mrs. A. R. Scott, with
regard to her mental condition. I find her of sound mind
and in full possession of her mental faculties. I also con-
versed with her at her home. I also conversed with her at
some length some two or three weeks ago at her residence
with the «ame end in view. On each of these occasions I
made a special endeavor to get some evidence of mental im-
pairment, but without success. On the contrary, she im-
pressed me as a person of more than ordinary mental keen-
ness and unusual power of memory."
< i
356 Coffey's Probate Decisions, Vol. 1.
Another paper introduced reads as follows :
"1118 Sutter Street, San Francisco, October 22nd, 1897.—
Mrs. A. R. Scott to Dr. Mays, for professional services, ex-
amination, consultation, and certificate of mental condition.
"$100.
"Paid, W. H. Mays."
Witness said that that was his bill, signature, and receipt
for the services specified. Dr. Mays thought that the first
conversation he had about her mental condition after her
death was with Mr. Galpin and Dr. Robertson. He told Dr.
Robertson how he had seen Mrs. Scott after making that
certificate and found that she had fooled them, and that she
had been playing a part, and how he had seen her since and
found undoubted evidence of insanity of the most atrocious
character, and that he must go to Mr. Galpin to explain mat-
ters. He went to Mr. Galpin and told him that he had seen
Mrs. Scott since and found her undoubtedly insane, and that
would very much modify his previous statement of her men-
tal condition made October 22, 1897. The witness did not
say at that conversation and in the presence of Mr. Galpin
to him or to Dr. Robertson, or at any time before, that he
had a talk already with Mr. Estee on the subject. Witness
did not know how long Mrs. Scott had been dead at the
time now alluded to. It was some little time after, perhaps
very soon after, may have been a month after that event.
The doctor changed his mind about the mental condition of
the lady about two weeks subsequent to the giving of that
certificate. He saw her two weeks after that and found her
insane. He did not go then and inform Mr. Galpin. He
first told him some little time after she died, about two or
three weeks after that event. Witness thought she died De-
cember 14, 1897. He talked with Dr. Robertson and told
him how he had found undoubted evidence of insanity, and
they talked the matter over about the way she had pla.ved
her part, and then he proposed going to see Mr. Galpin, say-
ing to Dr. Robertson, "We must not leave the matter in this
condition," and they went down there and witness related
the circumstance to Mr. Galpin. The witness had thought
Estate of Scott. 357
over this matter a good deal; had been in consultation with
Dr. Rucker, Dr. Hatch, and Mr. Estee. They all took a hand
in framing the hypothetical question.
Dr. John W. Robertson is a physician and surgeon, gradu-
ate of the University of California medical department, pro-
prietor of the sanitarium at Livermore, and formerly con-
nected with the public hospitals for the insane, having had
large and diversified experience in cases of insanity. Knew
the late Mrs. Angelia R. Scott and at her request made an
examination of her sanity. With the other physicians, they
attempted to test her intellect, her memory, her ability to
make a will. In speaking of ]\Ir. Scott she began with a dis-
cussion of his first marriage — she was speaking with refer-
ence to her own — she said that Mr. Scott was not a good
business man, that he had been married previously and had
almost ruined the fortune that he had gotten of his first wife ;
that he had charge of her business affairs and that he had
managed them very poorly; that it was only the untimely
death of his first wife that saved anything at all to his chil-
dren ; that when she herself married she had been anxious
to place her business affairs in the hands of Mr. Scott, but
she soon found that it would meet the fate of his first wife's
fortune; that when he went to New York he conducted all
the business affairs in his own way; that his bank account
grew very large, while her account decreased ; that Mr. Scott
had no money at all when he married her; that he had then
in a little while thereafter several thousand dollars in bank;
that in the course of time she found it absolutely necessary
for her protection that she take her business affairs away
from him ; that she had been a kind mother to his children,
that she loved them and desired to do something for them,
and that, therefore, she wanted to make a will, a codicil to
the will which would increase their share of the estate; she
said that she did not particularly hate Mr. Scott, she disliked
him on business grounds; that he had been unfaithful to her,
that he had been unkind to her; that he had done everything
to her that a husband should not do; that she did not intend
to take away the part that she had given Mr. Scott and that
while he had fallen in her estimation the children had risen
358 CoprEY's Probate Decisions, Vol. 1.
very much; she spoke of her relation with the children, of
how well they were doing in the University, of what hope
she had for their future ; and that she had been instrumental
in helping them along and desired that a part of her fortune
should go to them ; she again spoke of her sister in law, Mrs.
Paisley, the sister of her deceased first hu>sband, and at this
time the witness again questioned her and she again said
she did not believe that there had been any carnal intercourse
between the two, but she felt that Mrs. Paisley had undoubt-
edly taken Scott's part and that he had made certain over-
tures to that lady and that she ought to have resented them
more strongly than she had; she felt that they were nearer
together than further away after those advances and over-
tures; that as Mrs. Paisley stayed along in the house she
seemed to take Scott's part rather than hers and on that ac-
count Mrs. Scott made her go back home ; and she did not
care to leave any of her property to her. Mrs. Scott asked
the witness if there was any insane delusion in that. He an-
swered that he could discern no delusion in that disposition.
Then the Meily question came up again. She again went
fully into all the reasons for her suspicions there. She spoke
of the thin partition and of the fact that when she went there
she heard a noise of creaking of the bed — she heard it squeak
and she heard voices after she had knocked and the noise
kept up. She stood there awaiting the cessation of the noise
and she heard a man's step going out to the kitchen and down
a back way into the street. A little while later the door was
opened and she went in. She found that the bedclothes had
been rumpled; she believed that it was her husband. She
asked the witness if this was an insane delusion provided
all those were facts, and the doctor answered that all she
needed for a basis was a fair suspicion. She claimed that
certain persons had been to her and told her that Scott had
visited Mrs. Meily on the afternoon in question ; and she ar-
gued this point that it was not absolutely essential for her
to have seen this with her own eyes but simply to have such
evidence as would fairly warrant a suspicion. She asked the
witness if there was any such evidence, if she could prove
to him that she heard those noises while she stood there and
Estate of Scott. 359
heard a man's step going away, and it was also shown that
her husband had visited Mrs. Meily that afternoon, would he
regard it as an insane delusion"? The witness answered,
''Certainly not," but that it would be a matter for legal in-
vestigation and he could not go into all these facts. She
spoke with reference to her husband — she felt, she said, that
in place of taking away from him she was adding to his share.
The three points asked of her were the three changes made
in the will: 1. With reference to Scott; 2. Mrs. Meily; 3.
]Mrs. Paisley. The physicians went over the point as to Mrs.
Paisley time and again for the three hours they discussed
the matter, and the witness finally came to the conclusion
that no amount of discussion would enlighten him further.
So he concluded to write another letter practically the same
as this. In that other letter he said nothing about insane
delusions. The witness identified a letter shown to him as
the second letter dated October 22, 1897, entirely written,
dated and signed by his hand; it must have been written
about that date; it was written on the night he got home
while everything was fresh in his memory; that is, the first
letter was so dated and written; the second letter was writ-
ten about three weeks afterward, and was a copy substan-
tially of the first with certain matter eliminated, to which
she took exception, and is as follows:
"October 22nd, 1897.
"Mrs. Angelia R. Scott,
"My dear Madam: By your request, I have made a thor-
ough examination of your mental condition with reference
to your capacity for drawing or altering your Will and signed
a paper certifying your competency, and I now more explic-
itly state my reasons for so doing. I have carefully read
your Will made several years ago, and thoroughly investi-
gated your reasons for the changes made. I find you usu-
ally intelligent, rational and possessing excellent memory and
able to sustain continuously a line of thought and saw noth-
ing either in demeanor, method of expression, or mental pe-
culiarity to in any way suspect mental weakness. I judge
you to be a most remarkable business woman and unusually
free from intuitively conceived rea.soning, clear-headed, broad-
360 Coffey's Probate Decisions, Vol. 1.
minded, and just. The best proof of which I judge to be
the Will you propose.
"(Signed) Respectfully,
"J. W. ROBERTSON."
The doctor's reasons for leaving out of this letter the por-
tion she objected to in the former were: After the first in-
terview the only suspicion in his mind was the possibility of
insane jealousy, but that was only a possibility and a matter
that he could not determine. After these conversations he
still had no more reasons to omit what he did omit than he
had at the first letter. He did so simply because of a per-
sonal request and because of the fact that as he saw more
and more of her he became more and more fully convinced
of her mental soundness and naturally did not care to put
a stigma where he saw no valid reason for so doing. He be-
came as satisfied as he could possibly be of her soundness.
He had no mental reservation in his judgment of her sanity.
He knew nothing of Mrs. Meily or whether Mrs. Scott had
made those visits, but the statements of Mrs. Scott were plaus-
ibly put and well thought out, and whether the premises
were false or true the syllogism was perfect, reasons excel-
lent and explicit, and he could perceive no reason for a base
fabrication. What he omitted in her second letter was simply
a matter of courtesy to her ; but he reserved his letter, placed
it on file, and desired to use it. In the conversations with
her she said that Mr. Scott said that she was insane and that
he would break any will that she made. She was for that
reason very anxious for the medical gentlemen to pass on
that proposition. She exposed her mind fully to them and
promised to answer as they should propound to her without
reserve, evasion, or equivocation, and she certainly did so
and gave them every opportunity of determining the ques-
tion presented. After a full and thorough examination Dr.
Robertson came to a positive conclusion that at the time he
observed her she was sane. He did not suspect even mental
weakness in her case. In his first letter there occurs this ex-
pression : ' ' The only question that could arise was, whether
or not this judgment of yours was based on a delusion ; as
this was the only question that could be raised as to your
Estate of Scott. 361
sanity." That was omitted from the second letter simply
because after his various conversations with her he saw no
reason to entertain the slightest suspicion of any mental weak-
ness. Her reasoning was logical, her statements plausible
and possible. Regarding her sister in law, Mrs. Paisley, she
^made no charges whatever of immorality. "With regard to
^fMrs. Meily it was impossible for him to test its truth; he had
to accept the statements of Mrs. Scott as bases of belief.
She argued the whole matter over with them. In regard to
the hypothetical questions presented by the respective coun-
sel, the answer is always based upon the assumptions of the
premises.
Counsel for contestant comments upon the testimony of
Dr. Robertson, saying that so far from contradicting or vary-
ing from the revised opinion or ultimate judgment of Dr.
Mays, Robertson agrees with it in every essential particular,
and if he had seen what Dr. Mays saw in his last observa-
tion or visit to Mrs. Scott, he would not have subscribed to
her sanity, and counsel says that so far from Dr. Mays' con-
duct being censurable, it is highly to be commended as the
act of a conscientious and dignified gentleman and reputable
physician, for when he found that he had been deceived by
her in the "most atrocious" manner and discovered the de-
ception, he did his duty and corrected his original opinion
and gave his evidence as he was bound in honor and con-
science to do. When upon that visit to Mrs. Scott's house
she pointed out through the window to an imaginary object
standing outside near the barndoor, when there was no one
there, and "the whole was the inveterate phantom of a mor-
bid imagination," he became convinced that she Avas the vic-
tim of an insane delusion : Dew v. Clark, 3 Add. 79, re-
printed in Eng. Ecc. Rep. 436.
This cited case is entitled to attentive perusal for its bear-
ing on the facts here adduced in evidence on the issue of in-
sane delusion ; the elaborate treatment of the topic and the
minute and thorough examination of the phenomena of men-
tal perversion occurring in that ease with the reasoning lead-
ing to the conclusion reached by Sir John Nicholl, the trial
judge, are pertinent and instructive.
362 Coffey's Probate Decisions, Vol. 1.
The court has read this opinion with renewed interest, hav-
ing previously examined it with care, and indorses the en-
comium of counsel as to the ability with which the author
treated the issues and evidence.
Counsel for contestant says, further, that the examination
in Mr. Galpin's office shows a lack of thoroughness. It was
not comprehensive nor profound — so superficial that it was
easy for Mrs. Scott to conceal the point upon which she was
really daft. She carefully avoided allowing them to ap-
proach some of her most salient symptoms of insanity. This
is one of the features of persons possessed of delusions, to
throw the searcher off the scent; but when the insane per-
son is off guard, the delusion is detected. This is how Dr.
Mays came to change his opinion, and his reason for believ-
ing that he had been deceived by this designing woman in
the first instance is satisfactory; but when he saw the clear
manifestation of her mania as she pointed out the window
of her residence and professed to see persons on the outside
when no one was in the direction indicated, he became con-
vinced that he was dealing with a person whose mind was
infected by an insane delusion. Counsel contends that Dr.
Mays was right in his final opinion, but erred egregiously
in his certified conclusion, although he accounts satisfactorily
for the cause of the original error, and he acted in a pro-
fessional manner in seeking on the stand to correct the mis-
take into which he had been led by the cunning character-
istic of this species of insanity.
While the court does not choose to adopt the severe stric-
tures applied by proponents to the conduct of Dr. Mays, as
there is no necessity of ascribing his alteration of attitude
to a corrupt motive, yet it cannot acquiesce in the views of
counsel for contestant, so speciously presented, that there
was a lack of thoroughness in the examination of the dece-
dent in Mr. Galpin's office and that it was neither compre-
hensive nor profound. Dr. Mays himself testifies that the
examination was thorough and occupied hours, and his tes-
timony throughout shows, including the certificate and his
own letter, that his first judgment was better based than his
second, founded as the latter was upon a casual incident
Estate of Scott. 363
scarcely sufficient to operate so extensive an inference. The
inadequacy of his grounds for modifying his judgment, as
compared with the predicate of his first opinion, seems to
the court plain, taken in connection with his delay in com-
municating his change of conviction until after the death of
testatrix. As the court reads the record there is no satis-
factory explanation for not divulging his discovery before
the death of Mrs. Scott.
The testimony of Dr. Robertson is certainly strong and
clear and without any vein of vacillation or symptom of par-
tisan bias, and he came to a positive conclusion, as he himself
says, ' ' after a full and thorough examination, ' ' that she was
sane, in the fullest sense of that word, and he adhered to
this opinion after a most searching cross-examination. Dr.
Robertson is a friend of Dr. Mays and a weekly visitor to the
latter 's office in this city, which seems to be his local head-
quarters and the place where he received word to call and
see Mrs. Scott, and whence he went, with the result that she
took him to task for the form of his letter which he recast,
leaving out the portion to w^hich she took exception herein-
before quoted. Notwithstanding this intimacy of relation
and closeness of communication between these two doctors.
Dr. Robertson has never altered his certified conviction in
favor of the sanity of testatrix, and, on the whole, the court
considers his conclusion correct.
It appears, as a reason for the omission to call the third
signer of the certificate, Dr. Gardner, that he was absent
from the city at the time of the trial when his presence was
sought.
As to the utility of an inquisition into the testamentary
capacity of a person prior to decease, undoubtedl.v an impres-
sion exists that it is a wise precaution, and in this case it has
proved useful as tending to establish the fact that decedent
was certainly not a victim of an insane delusion with respect
to the designs of her husband, who has verified her appre-
hensions in his attempt to set aside this will. That there is
an impression current that such an ante-mortem examination
would be a salutary provision of the law has been shown in
a bill introduced in the logisbituro of this state to admit wills
364 Coffey's Peobate Decisions, Vol. 1,
to probate prior to the death of testator, which measure, how-
ever good in principle, was impracticable in details and was
not passed: Assembly Bill, No. 199, introduced in Januar3%
1895.
The will may be considered in proof of its own validity
and of the sanity of its maker. A careful reading of the
entire instrument will justify the opinion rendered by Dr.
Eobertson that it was the product of a clear-headed person,
and that the best proof of her clearness of mind is in the
instrument itself. She may have been mistaken in her prem-
ises and violent in her prejudices, but strong, violent and
unjust prejudices do not show mental incapacity: Trumbull
V. Gibbons, 22 N. J. L. 117.
Her antipathy to Scott was not deep-seated, and w^as by
her rationally explained. If she were the victim of an in-
sane delusion in 1897 she would have taken away the part
that she had given him in 1891 ; but so far from doing that
she really added to it, as she herself said, because although
he had abated in her affection, her regard for the children
had risen. So far as the will of November 7, 1891, is con-
cerned it can hardly be pretended that there is sufficient evi-
dence to prove that at that time testatrix was not competent.
The only witnesses who testified that in their opinion she was
insane in 1891, were Hammond, Mortier, Perkins, Dyer, Uhl-
horn and Mrs. O'Connor. It cannot be claimed that the tes-
timony of the experts was in any manner applicable to the
original will which was executed in that year. The court
has already commented sufficiently upon the testimony of the
witnesses named. By that will testatrix makes legacies of
a few thousand dollars and the residuary interest in the es-
tate. She gives thirty-three two-hundredths or about one-
sixth to relatives of her former husband, Mr. Collins, and the
remaining one hundred and sixty-seven two-hundredths to
her relatives, less two-fiftieths to Mr. Scott.
By the second will she gives twelve-fiftieths or about one-
fourth to relatives of Collins and of the remaining thirty-
eight-fiftieths she gives thirty-three-fiftieths to her own kin,
and to Scott the same as in the first will and to his sons
and daughter one-fiftieth and one-fiftieth to charity. The
Estate of Scott. 365
extraordinary care to do what was right all around and the
soundness of her reasons for discriminations are shown in
the evidence of Mr. Galpin, whose office she visited a score
of times and who visited her house several times for consulta-
tion, until he was quite worn with the work of arranging the
iata and information which she gave and in readjusting the
particulars until she was finally satisfied with the disposi-
tion. Her idea of equity was exhibited in remembering the
relatives of her deceased husband. The power and tenacity
of her memory were manifested in carrying all the various
intricacies and details in her mind. Her understanding of
her relation to objects of bounty and the natural and moral
rights of others was shown by the evidence of Dr. Lane in
regard to what she said about charities when he besought her
out of her abundance to give to some benevolent institution
and she replied that she had enough of poor relations for
that purpose, and bestowed her benefactions accordingly.
Her reasons for curtailing the expectancy of Scott have been
dealt with sufficiently. Scott was not the natural object of
her bounty, yet she did not discard him nor make any change
in her two wills to his disadvantage, but, on the contrary,
rather increased his proportion by the share she gave to his
children, and in this regard it is a circumstance tending to
show that she was not as black as she has been painted — that
one of the reasons for changing her testament proceeded from
her kindness of heart toward these children, and that while
the boys were inmates of her household, which was from the
moment of their father's marriage to her, they had met with
affectionate treatment at her hands. The amount paid for
board is a comparative bagatelle. The books show that not-
withstanding that the two boys made their home at this house,
and that Scott had an allowance of $2,400 per annum from
the estate of his wife to support them, that in 1891 he paid
on account of board, $25. In 1892 and 1893 he paid noth-
ing. In 1894, he paid $339. In 1895, he paid $200,— mak-
' ing a total of $564 paid into this house for the board of
these two boys for a period of six years, a little less than
$78 per year, these boys having in their own right, as they
\i66 Coffey ^s Probate Decisions, Vol. 1.
testified, from fifty to seventy-five thousand dollars, which
they received from their mother and from some relatives.
If she were a mean woman, a miser, or a heartless step-
mother, she would not have allowed the children to remain in
such circumstances, and if she was so base as is said, the
father and guardian disregarded his duty in allowing the
children to stay in an establishment which one of his wit-
nesses testified she thought on the first day she went there
was a fast house.
Testatrix was not forgetful of Mr. Scott 's children although
they had an ample fortune of their own, and notwithstand-
ing the alleged delusions, and all the reasons that would have
prompted to cut ofi' Mr. Scott, she accords him substantial
recognition.
If there were causes sufficient to have induced a sane
woman to ignore him in her will or reduce what otherwise
would have been a just allowance, the fact that she enter-
tained an unjust or an unfounded suspicion, in regard to
his treatment of her, or unjust prejudice against him, would
not affect the will nor demonstrate that she was necessarily
of unsound mind : Clapp v. Fullerton, 34 N. Y. 196, 197, 90
Am. Dec. 681 ; Coit v. Patchen, 77 N. Y. 537, 538.
The tests of testamentary capacity are : 1. Understanding
of what testatrix is doing; 2. How she is doing it; 3. Knowl-
edge of her property; 4. How she wishes to dispose of it;
5. Who are entitled to her bounty : Clark v. Ellis, 9 Or. 147.
Applying these tests to the facts of this case there can be
no doubt of the result.
In Daniel v. Daniel, 39 Pa. 191. it is said that testamentary
capacity implies that the testator fully understands what he
is doing, and how he is doing it ; he must know his property
and how he wishes to dispose of it among those entitled to
his bounty. If he understands in detail what he is doing,
and chooses with understanding and reason between one dis-
position and another, it is sufficient.
In Home v. Home, 9 Ired. 99, with reference to the amount
of testamentary capacity necessary, it is said it is sufficient
if the testator knew what he was doing, and to whom he was
giving his property; and in 1 Redfield on Wills, 125, 127, it
Estate op Scott. 367
is said that this is about as accurate and brief a definition
as can be given.
In Kinne v. Kinne, 9 Conn. 104, 21 Am. Dec. 732, the court
say: "Had he an understanding of the nature of the busi-
ness he was engaged in, a recollection of the property he
meant to dispose of, and of the persons to whom he meant
to* convey it, and of the manner he meant to distribute it be-
tween them?"
In Stevens v. Vancleava, 4 Wash. C. C. 262, Fed. Cas. No.
13,412, Washington, J., said: "To sum up the whole in the
most simple and intelligent form, were his mind and memory
sufficiently sound to enable him to know and to understand
the business in which he was engaged at the time he executed
the will?"
The point of time, then, to be considered at which the
capacity of the testatrix is to be tested, is the time when
the will was executed. This is the important epoch. Judge
Washington saj^s: "The evidence of the attesting witnesses
and next to them, of those who were present at the execution,
all other things being equal, are most to be relied upon."
In this case the attesting witnesses were present at the
execution, and the two who survive have testified to the
soundness of her mind at that time. The evidence of the
attorney who drew the will according to her instructions,
and who was a witness to the last codicil, and the positive
and uncontradicted testimony of the subscribing witness
to all the instruments, of the soundness of the testator's mind
at the time the will was executed, in addition to the other
witnesses whose evidence has been examined and reviewed,
establish beyond doubt that the testatrix was rational, and
did know and understand what she was doing at that time.
As was said in the ease of Lee's Heirs v. Lee's Executors,
supra. "There was so much delil)eration and thought in all
this, that even if the testatrix had been before afflicted with
habitual insanity, yet this conduct was sufficient to establish
a complete intermission."
The prayer of the contestant's petition is denied and judg-
ment ordered for proponents.
368 Coffey's Probate Decisions, Vol. 1.
The Principal Case has been before the appellate courts in 12-4
Cal. 671, 57 Pac. 654; 128 Cal. 57, 60 Pac. 527j 1 Cal. App. 740, 83
Pac. 85; 77 Pac. 446.
Estate of ANGELIA R. SCOTT, Deceased.
[No. 19,473; decided Jan. 14, 1903.]
Wills — Implied Revocation by Codicil. — When a new will is made
in the form of a codicil, it does not require an express revocation to
make the intent to revoke the prior will clear; it is sufficient that
the intent to make a disposition of the estate in the new instrument,
which is inconsistent with the prior gifts, is made as clear as the
original.
Wills — Meaning of "Residue" or "Residuum." — Residue or resi-
duum, technically, is the remainder or that which remains after tak-
ing away- a part; in a will, such portion of the estate as is left af-
ter paying the charges, debts, devises, and legacies; and the pre-
sumption is that the testatrix used it in that sense, unless a contrary
intention clearly appears.
Wills — Meaning of Residue, How Determined. — Where a will is
drawn for a testatrix by an attorney, the word "residue," as used
in the instrument, will be taken technically, and no resort can be
had to artificial aid in its interpretation when natural reason and
the circumstances of its insertion make clear its meaning.
Wills — Revocation by Codicil Which Omits Legatee. — In this case
the codicil of the testatrix, which in effect was a new will, omitted
one of the residuary legatees named in the original will. The court
found that the codicil was inconsistent and irreconcilable with, and
worked the revocation of, the original will in respect to this be-
quest, and therefore denied the right of the legatee to participate in
the distribution of the residuum.
Application for partial distribution by Eugene Wormell.
L. Seidenberg and R. P. Clement, for applicant.
Galpin and Bolton, Houghton & Houghton, contra.
COFFEY, J. Whether or not Eugene Wormell is entitled
to relief in this proceeding is dependent upon the discovery
of the intent of the testatrix as expressed in her will and
codicils or deduced therefrom by process of construction as
matter of law.
To understand the question the instruments should be
presented in full, and they are as follows:
Estate of Scott. 369
' ' In the Name of God, Amen. I, Angelia R. Scott, of the
City and County of San Francisco, State of California, being
of sound and disposing mind and memory, do make, publish
and declare this my last will and testament.
"I. I give, devise and bequeath to the officers of Apollo
Lodge of the Independent Order of Odd Fellows in the City
and County of San Francisco, and by their successors in office,
the sum of Two Thousand (2,000) Dollars, to be by them
invested and the proceeds thereof to be used in the preserva-
tion and care of the cemetery lots in the Odd Fellows Ceme-
tery in the City and County of San Francisco, in which my
late husband, Salvin P. Collins, and my nephew, John
Quincy Wormell, are buried.
"II. I give, devise, and bequeath to Horatio Stebbins the
sum of Three Thousand (3,000) Dollars, to be used by him at
his discretion to advance the interests of the First Unitarian
Church in this City and County.
"III. I give, devise, and bequeath to Carl Anderson, my
coachman, who has served me faithfully for five years. Five
Hundred (500) Dollars.
"IV. I give, devise, and bequeath my diamond earrings,
one bar pin with one diamond, my finger ring set with three
large diamonds, my chain and charms to my niece, Helen
Garish, and my watch to my niece. Ella Perkins.
"V. I give, devise, and bequeath my cluster diamond
ring and one small solitaire diamond ring, the gift of my
late husband, S. P. Collins, to his sister, Mrs. Rachel Johonnot.
"VI. I give, devise and bequeath one diamond solitaire
finger ring to Mrs. Frank Garcia, wife of my nephew, Frank
Garcia.
"VII. I give, devise and bequeath all the rest and residue
of my property as follows : One fiftieth thereof to each of the
following persons, children of my late brother, Amos P. Wor-
mell, namely: One fiftieth to Andrew Wormell of Dover,
New Hampshire; one-fiftieth to Charles Wormell, of Sun-
bury, Ohio; one-fiftieth to William Wormell of the same
place; one-fiftieth to Eugene Wormell of Livermore, Maine;
one-fiftieth to Lettie Wormell of Colorado, and one-
fiftieth to Salvin Ulysses Wormell of Phillips, IMaine;
Prob. Dec, Vol. 1—24
370 Coffey's Probate Decisions, Vol. 1.
two-fiftieths thereof to Louisa E. Roe, daughter of my late
brother, Amos P. Wormell, of Island Pond, Vermont; six-
fiftieths thereof to my sister Mary A. Cowan and her
daughter Amanda Meily, share and share alike; six-fiftieths
thereof to M. S. Chamberlain, nephew of my late husband,
S. P. Collins, now residing at Concord, New Hampshire ; one-
fiftieth thereof to Mrs. Rachel Johonnot, sister of my late
husband, residing at Montpelier, Vermont ; one-fiftieth thereof
to Florence Swall, wife of George Swall of Mountain View,
California, niece of S. P. Collins, deceased; one-fiftieth
thereof to Eugene Wormell, son of my brother, Nathaniel
Wormell, now residing at Seattle, Washington; one-eighth
to my nephew, Frank Garcia ; one-eighth to my niece Helen
Gerrish, wife of Charles Gerrish of Port Townsend. Wash-
ington ; one-eighth thereof to Mrs. Ella Perkins, of Santa
Clara County, California, wife of Caleb F. Perkins; one-
tenth thereof to Mrs. Louisa Garcia, my sister; and one-
fortieth thereof to Chester and Nellie Swall, son and
daughter of George and Florence Swall of Mountain View,
California, share and share alike, two-fiftieths thereof to my
husband, E. W. Scott.
"In case any of my legatees contest the probate of this
will, I, hereby revoke the legacy of such contestant, and
direct that such legacy become a part of my estate.
"VIII. I nominate and appoint Charles S. Tilton, Caleb
P. Perkins, and Frank Garcia, Jr., as executors of this my
last Will and Testament without bonds.
"In Testimony Whereof, I have made, published and de-
clared the foregoing as my last Will and Testament.
"ANGELIA R. SCOTT, (Seal.)
"Signed, sealed, published and declared to be her last
Will and Testament by the aforesaid Angelia R. Scott, in
our presence, who in her presence and in the presence of each
of us, and at her request have hereto set our hands and
seals, as witnesses this seventh day of November, A. D. 1891.
"JACOB C. JOHNSON, 1519 Van Ness Ave.
"EDWARD H. HORTON, 30 Post Street.
"Whereas, I, Angelia R. Scott, by my will subscribed on
the 7th day of November, 1891, appointed Caleb F. Perkins
Estate op Scott. 371
together with Charles S. Tilton and Frank Garcia, Jr., to be
executors of my last AVill and Testament.
"Now, then, I hereby revoke the nomination and appoint-
ment of said Perkins as one of my said executors, and it is
my desire that this Codicil be annexed to and made a part
of my last Will and Testament as aforesaid to all intents
and purposes. ANGELIA R. SCOTT'.
"Signed, sealed, published and declared to be and as and
for a codicil to her last Will and Testament by Angelia R.
Scott, in our presence, who in her presence, and in the
presence of each of us and at her request have hereto set our
hands and seals as witnesses this 25th day of February, A. D.
1892. "jr. C. JOHNSON,
"E. H. HORTON.
"Whereas, I, Angelia R. Scott, of the City and County of
San Francisco, have made my last Will and Testament in
writing, bearing date the seventh day of November, in the
year of our Lord, one thousand, eight hundred and ninety-
one, in and by which I give and bequeath to my sister, Mary
A. Cowan and her daughter, Amanda Meily, six-fiftieths of
the residue of my estate (after providing for certain legacies)
xo be divided share and share alike between them, and whereas,
since then said Mary A. Cowan has died, and I desire to re-
voke so much of said Will as devises six-fiftieths to her and
to her daughter Amanda Meily.
"And Whereas, by the same instrument, I have devised
one-fiftieth of said residue to Florence Swall, wife of George
Swall of Mountain View, and since that time said Florence
has died, leaving three children; and whereas I also devised
to Eugene Wormell, son of my brother, Nathaniel Wormell,
residing at Seattle, Washington, one-fiftieth part of said
residue, and since then he has died; and whereas, I also
desire to change the devise to Frank Garcia, of one-eighth of
my estate, and to decrease the amount thereof and whereas,
I did devise one-eighth of my said estate to Helen Garish,
wife of Charles Garish; and I desire to increase the amount
devised to her; and whereas, I did devise one-eighth of the
residue of my said estate to my niece Ella Perkins, I now
desire to devise something to her four children ; and whereas, I
372 Coffey's Probate Decisions, Vol. 1.
now desire to make a bequest to the Old People 's Home of San
Francisco, and to the three children of my present husband, E.
W. Scott; and whereas, I desire to revoke the gift of two
thousand dollars to the Apollo Lodge of the Independent Or-
der of Odd Fellows, and desiring to preserve the general fea-
tures of my former will making new distributions when neces-
sary by deaths which have happened since the making of that
will, I prefer to do this by way of another codicil to my former
Will instead of executing a new Will; but in any respect in
which this codicil shall conflict with the provisions of my
former Will, I fully intend that this codicil shall control the
provisions of the former Will, and that otherwise the former
Will and the codicil thereof shall stand unaffected by it.
"I revoke the bequest I made in my said Will of Two
Thousand Dollars to the Apollo Lodge of the Independent
Order of Odd Fellows, and I give, devise and bequeath Two
Thousand Dollars to the Apollo Lodge of the Independent
Order of Odd Fellows in the City and County of San Fran-
cisco, and I request them to take care of my cemetery lot in
the Odd Fellows Cemetery in this City and County of San
Francisco.
"I give, devise and bequeath the sum of One Dollar to each
of the following persons: To Mrs. Amanda Meily, daughter
of Mary A. Cowan; to Mrs. Nellie Swall, wife of George
Swall; to Mrs. Eliza Paisley, wife of Donald Paisley, sister
of my late husband.
' ' I give, devise and bequeath to my maid, Estella Burnham,
Five Hundred Dollars, if she is in 'my employment down to
the time of my decease.
"I give, devise and bequeath my emerald finger ring set
with diamonds, and also my large solitaire diamond finger
ring to Mrs. Helen Garish.
"I give, devise and bequeath all the rest and residue of
my estate subject to all unrevoked legacies and bequests of
my Will, and subject to those herein contained as follows :
"Of such residue, two-fiftieths thereof to my nephew,
Andrew Wormell of Dover, New Hampshire.
"Two-fiftieths thereof to Charles Wormell, of Sunbury,
Ohio.
Estate of Scott. 373
"Two-fiftieths thereof to my nephew, William Wormell of
the same place.
"Two-fiftieths thereof to my nephew, Salvin Ulysses Wor-
mell, of Phillips, Maine.
"Three-fiftieths thereof to my niece, Louisa E. Roe, of
Island Pond, Vermont, daughter of my brother, Amos P.
Wormell.
"One-fiftieth thereof to Lulu Wormell, of Oakland,
daughter of my nephew Eugene Wormell, now deceased.
"Six-fiftieths thereof to Mortimer S. Chamberlain, resid-
ing at Concord, New Hampshire, nephew of my late husband,
S. P. Collins.
"Three-fiftieths thereof to Mrs. Rachel Johonnet, sister of
my late husband, S. P. Collins.
"Three-fiftieths thereof to Ella Perkins, of Santa Clara
County, wife of C. P. Perkins.
' ' Three-fiftieths thereof to be divided share and share alike
between the four children of said Ella Perkins, or the sur-
vivors of them at my decease.
"Seven-fiftieths thereof to Helen Garish, my niece, wife
of Charles Garish of Port Townsend, Washington.
"Four-fiftieths thereof to my sister, Mrs. Louisa Garcia,
wife of Frank Garcia (senior).
"Three-fiftieths thereof to be divided share and share alike
between the children, now living or the survivor of them, at
my death, of Florence Swall, and George Swall, of Mountain
View, California ; said Florence Swall being a niece of my late
husband, S. P. Collins.
" Four-fif tieiths thereof to Frank Garcia, Jr., son of Frank
Garcia.
"Two-fiftieths thereof to my husband, E. W. Scott.
"One-fiftieth thereof to Lloyd N. Scott, for himself, for
his brother, Wesley B. Scott, and his sister, Laura May Scott,
share and share alike; })ut he is to receive and hold in trust
the shares of Wesley R. Scott and Laura B. Scott, invest
the same, and use the income or principal, if necessary, for
their education and support until both beneficiaries shall die
or become of age; and in case of the death of either beneficiary
the share of such decedent shall be divided equally between
374 Coffey's Probate Decisions, Vol. 1.
the survivors, unless decedent leaves issue him or her surviv-
ing, and in that event the share of said decedent shall go to
said issue.
"One-fiftieth thereof to the Old People's Home of San
Francisco.
"One-fiftieth thereof to the San Francisco Protestant
Orphan Asylum.
"And in case any of my devisees or legatees shall contest
the probate of this Will the bequest or devise to them is
hereby revoked, and the amount bequeathed or devised to such
contestant shall go back and become a part of my estate, and
be divided pro rata among the residuary devisees.
"I also nominate and appoint Charles Garish to be another
executor of my estate.
' ' I also revoke the bequest of my one large solitaire diamond
finger ring to Mrs. Frank Garcia, formerly wife of, Frank
Garcia, Jr., and I give, devise and bequeath the same to Helen
Garish.
"(Seal) ANGELIA R. SCOTT.
"Signed, sealed and published and declared to be and as
and for a codicil to her last Will and Testament by Angelia
R. Scott in our presence, who in her presence and in the
presence of each of us and at her request, have hereto set
our hands and seals as witnesses this 22d day of October, A.
D. 1897.
"JACOB C. JOHNSON, 1519 Van Ness Ave.
"EDWARD H. HORTON, 2110 Devisadero St.
"PHILIP G. GALPIN, 1738 Broadway."
The general scheme of testatrix in the will was preserved
in the codicil, which declares that she desired to preserve
the general features of her former will, making new distri-
butions made necessary by deaths occurring since its execu-
tion ; that she preferred to do this by way of another codicil
of her former will instead of executing a new will, but in any
respect in which the last executed document should conflict
with the first she declared her intent that the codicil should
control, but otherwise the former should stand unaffected.
Now the question is. Are the provisions of this codicil
which omit any allusion to Eugene Wormell consistent with
Estate of Scott. 375
the claim upon his part that she did not design to revoke
her bequest to him? This codicil is, in effect, a new will.
Testatrix declared that for reasons she preferred to make
a new will in the form of a codicil, and we should construe
it in that view.
The general features of the old instrument are preserved,
but the dispositions are somew^hat varied.
In each case she divided the residuum into fractions, but
in the original will the parts were not symmetrically segre-
gated, while in the codicil they were divided into fiftieths
This plan is perfectly plain, and by keeping it in mind any
difficulty in divining her design will disappear. It does not
require an express revocation to make the intent to revoke
clear; it is sufficient that the intent to make a disposition of
the estate in the new instrument which is inconsistent with
the prior gifts is made as clear as the original.
Counsel for petitioners quote the decision in Re Ladd, 94
Cal. 674, that a codicil is never construed to disturb the dis-
positions of the will further than is absolutely necessary to
give effect to the codicil, and that a clear disposition made
by the will is not revoked by a doubtful expression or in-
eonsistent disposition in a codicil, and, taking this expression
of the court in connection with section 1321 of the Civil
Code, counsel deduces this truth.
In order to revoke a clear disposition in a will, the codicil
must contain a provision that is not simply inconsistent, but
one that is absolutely irreconcilable, with the disposition in
the will.
Such a condition, counsel contend, is not presented by the
case at bar, for the dispositions are not even inconsistent
let alone irreconcilable.
Is it evident, as counsel contend, even upon the most
casual consideration, that in this case there is no absolute
necessity, nor any necessity, to disturb the bequest in the
will to petitioner, in order to give effect to the codicil, and
that, therefore, it must stand?
If this were as patent to the court as to the counsel, there
would be no hesitancy in determining the issue in their
favor, but that there is some lingering doubt in the mind
of counsel as to the validity of their position is suggested
376 Coffey's Probate Decisions, Vol. 1.
by their appeal to equity in one of their earlier briefs, in
which they claim that there is no difficulty in carrying out
the provisions of the will and codicil, for it is only necessary
to ascertain the value of the estate after the payment of
debts, expenses of administration and providing for the un-
revoked general and specific bequest of the will, then deduct
two-fiftieths, one for the petitioner and the other for the
children of Lettie Wormell Byron, and the remainder con-
stitutes the residue disposed of by the codicil and makes
the petitioner substantially a general legatee under the will
of an amount equaling one-fiftieth of the estate after the
payment of debts, expenses of administration, and the pay-
ment of the other unrevoked general and specific legacies
under the will, there being no reason why, in this manner,
the petitioner may not receive the share given in the original
will ; ' ' but if this cannot be done, it is certainly within the
equitable powers of the court to let the petitioner in to share
equitably in the residue under the codicil, it being clear that
it was the intention of the testatrix not to annul or impair
the legacy given in the will." All the grounds urged for
Eugene Wormell apply with equal force to the Byron chil-
dren. This court has no equitable power in the premises,
and it is not clear that the omission of this Eugene Wormell
and the children of Lettie Wormell Byron was an oversight
of testatrix.
There is no room for the suggestion of an alternative. It is-
no case of equity. It is a matter for interpretation and con-
struction ; it is for the court to find out the sense in which
the testatrix employed certain words ; that is, the idea which
she intended to convey by the use of certain expressions or
terms, and to draw from the whole text a conclusion which
shall construe the intent of the maker of the instrument.
The object is not to make or mar or modify the testament,
but to discover its sense; hence, the whole document is to
be construed integrally. There is no case here for extrinsic
evidence; and, consequently, the intimation of oversight
must be resolved without recourse to that species of proof.
In their final brief counsel for Eugene Wormell repeat
their suggestion of an alternative, but rely upon their
primary proposition that petitioner has a clear right to the-
Estate of Scott. 377
legacy in the will, and that in her readjustment of the be-
quests in the codicil his name was omitted through over-
sight.
Counsel do not persist in the contention that there may be
two residues, one for one purpose and another for another,
but insist that they have consistently adhered to the position
that there is only one residue to deal with ; but they assert
that the language of the codicil shows clearly that the tes-
tatrix used the word "residue" without understanding its
exact meaning; that evidently the testatrix, in using this
term in the codicil, had in mind not a residue in its technical,
legal sense, but simply the remainder of her estate after the
payment of debts and expenses of administration.
Residue or residuum, technically, is the remainder or that
M'hich remains after taking away a part ; in a will, such por-
tion of the estate as is left after paying the charges, debts,
devises, and legacies, and the presumption is that the tes-
tatrix used it in this sense, and a contrary intention must
clearly appear.
Considering the circumstances in which the codicil came
into existence, it is hardly just to impute ignorance of the
meaning of the word or lack of understanding of its legal
import to testatrix. It was drawn, according to the record
in the contest, by one of the counsel for respondent here
(Mr. Galpin) from the instruction given to him by her; she
gave the details of the devises and legacies, and he prepared
the paper at her direction. If it were an instrument written
by herself without legal assistance, there might be some rea-
son in which to intimate her ignorance of the technical
term, but that may not be done with impunity where there
was a skilled draughtsman and expert lawyer.
The word "residue," therefore, is to be taken technically,
and no resort can be had to artificial aid in its interpreta-
tion when natural reason and the circumstances of its in-
sertion make clear its meaning.
Counsel for Eugene Wormell argued that the purpose of
testatrix clearly was to have paid out of that remainder
all unrevoked legacies and bequests of her will and general
legacies and bequests of the codicil, to which, in terms, the
so-called "residue" in the mind of the testatrix was made
378 Coffey's Probate Decisions, Vol. 1.
subject; then to have two-fiftieths of the remainder paid to
Eugene Wormell and Lettie Wormell Byron, and then to
dispose of the remainder, which would constitute the real
residue, in fiftieths; and, counsel continue in this strain,
that if all of this estate were reduced to cash, and all debts
and expenses of administration paid, it would be in exact
conformity with the codicil to pay, out of what remained,
the unrevoked legacies and bequests of the will, and the
general and specific legacies of the codicil, then to pay two-
fiftieths of what remained, one to the petitioner and one to
the children of Lettie Wormell Byron, and to distribute the
remainder, which would constitute the actual residue of the
codicil, in fiftieths ; and counsel confess their entire inability
to see how this simple course of carrying out what strikes
them as the unmistakable intention and purpose of the tes-
tatrix would make two residues, which, it appears to be ad-
mitted, are repugnant to the law, if possible to mathematics.
This simple device would also, it is said, eliminate the
need of the assumption of any equitable authority by the
court, as such division would be plainly in pursuance of
the plan adopted by the testatrix.
If it were the intent of the testatrix to cut Wormell off
from her bounty, would she not have done the same with
his interest as she did with some others, and expressly revoke
her bequest to him, is the query of counsel, to which they
return response that undoubtedly she would have so done,
if that had been her deliberate design; but it will be asked
in turn. Why did she not, then, carry him into the codicil?
To this self-propounded interrogatory, counsel answer, that
he may have been omitted from the codicil by oversight.
If mention were unnecessary, omission should be harmless,
and conjecture useless.
Counsel aver their belief that it may have been the in-
tention of testatrix to carry him into the codicil and to thus
make him a sharer in her bounty in equal proportion with
the other residuary legatees. If such were her intention,
she never executed it, and how can he benefit by her failure
to execute such fancied purpose? But is her omission,
caused by an oversight, to be construed as an intention to
deprive him entirely from sharing in her bounty? Or, con-
Estate of Scott. 379
tiniie counsel, it may have been her actual intention to give
Eugene Wormell and Lettie Wormell Byron two-fiftieths of
the residue, and to divide the remaining forty-eight — fiftieths
among the residuary legatees of the codicil; but all this is
indulging the imagination to no practical benefit, for, as
counsel finally admit, in any event we must take her will
as she made it and not as we fancy she might, could, would,
or should have made it.
All of these speculations are, in a manner, interesting and
some of them abstruse, but to this complexion do we come
at last : Was there any intent at the time of making the
codicil in the mind of the testatrix that Eugene Wormell
should receive any part of the residue of her estate?
To resolve this problem we must resort to the will and
codicils and confine ourselves to their terms.
By the former w411 one-fiftieth of the residue was be-
queathed to Eugene Wormell of Livermore, Maine, and an-
other fiftieth to Eugene Wormell of Seattle, Washington;
by the latter every fiftieth is given to some person other
than Eugene Wormell of Livermore, Maine, and in regard
to the other Eugene, it is explained that he died in the in-
terval between the dates of the two transactions. No men-
tion is made in the codicil of Eugene Wormell of Livermore,
Maine, nor of Lettie Wormell, of Colorado, who had died on
the 6th of October, 1892, five years prior to the date of the
latter instrument. An inspection of the two papers shows
that in preparing the codicil the order of the will was
closely pursued; the variations serve to indicate an ad-
herence to the text of the original; and in going down the
line she passed over the names of "Eugene Wormell of
Livermore, Maine, and Lettie Wormell of Colorado," to
whom she had given each one-fiftieth of the will, in nominal
juxtaposition, and the necessary inference is that this de-
parture from the sequence of names was designed and that
she meant to omit them from her bounty.
It is manifest that the distribution of the codicil was
intended to be a new one and a substitute for the old, while
retaining the general form of the original, but the division
was different in fractions, names of donees, and amounts
allotted to each and the quantity of residue distributed.
380 Coffey's Probate Decisions, Vol. 1.
The intent to make a disposition of the residue in fiftieths
is clear to the court, and such an intent is inconsistent with
the prior bequests made in the will to those whose names
were not found in the codicil. The court has no authority
to divide the residue under the codicil into fifty-two parts,
and assign one part to Eugene Wormell and one part to
the children of Lettie Wormell Byron, for to do this would
be to alter the disposition of testatrix and make for her a
new will, which is beyond judicial power.
The claim of petitioner is inconsistent, in my judgment,
with the plan of the testatrix, as outlined in the codicil, and
no reasonable construction can reconcile the two propositions
where the repugnance is so evident, and she herself has said
that in any respect in which this codicil should conflict with
the provisions of her former will, she fully intended that
the codicil should control, and this court is, finally, of opin-
ion that it is executing her intention in letter and spirit by
denying the prayer of petitioner, and it is so ordered.
The Principal Case was affirmed by the supreme court in 141 Cal.
485, 75 Pac. 44. The general rule is, that a codicil does not disturb
the will, except so far as inconsistent with it or in terms or by
necessary intendment revokes it: Estate of McCauley, 138 Cal. 432,
71 Pac. 512.
Estate of THOS. J. HILL, Deceased,
[No. 4,382; decided February 27, 1886.]
Will — Undue Influence. — The Evidence in this contest of a will,
examined and held insufficient to establish a charge of undue in-
fluence.
Will — Inebriety of Testator. — The Evidence in this will contest
examined and held not to sustain a charge that the testator was
so addicted to. the excessive use of intoxicants as to deprive him of
testamentary capacity.
Will — Unsoundness of Mind. — The Evidence in this will contest
held insufficient to establish a charge of unsoundness of mind on the
part of the testator.
Will — Insane Delusion. — A Belief based on evidence, however slight,
is not delusion.
Estate of Hill. 381
Will. — The Fact that a Guardian has been Appointed for a person
because of his incompetency to manage his affairs is not conclusive of
his incapacity to make a will.
The Words "Insane" and "Incompetent" defined and distin-
guished.
Contest of will.
Giles H. Gray, for proponent, J. ]\I. Haven.
John R. Glascock, for contestant, Jno. AVoolley.
H. L. Adams, also for contestant.
COFFEY, J. On the second day of July, 1885, James
M. Haven, through his attorney, Giles H. Gray, Esq., filed
in this court a petition setting forth that one Thomas J. Hill
died on or about the twenty-fourth day of June, 1885, in
this city and county, of which he was then a resident, leav-
ing estate therein consisting of personal property of the
probable value of $5,000 cash; that said Hill left a will,
dated March 22, 1884, in possession of the petitioner, nam-
ing him, the said petitioner, executor, and Wm. H. Aiken,
Thos. J. Conroy, IMary E. Connor, John Woolley, Mrs. John
AVoolley, and the children of Mr. and Mrs. Woolley, the
Grand Army Cemetery Association and the Veteran Home
Association, corporations, devisees or legatees; that John
Connor and Maggie E. McCann were subscribing witnesses
to said will; that the next of kin of said testator and heir
at law is John Woolley, aged about fifty years, residing in
Placer county, California, a son of a deceased sister of said
testator; that at the time of the execution of said will,
March 22, 1884, said testator was over the age of eighteen
years, and aged sixty years or thereabouts, and was of sound
and disposing mind, and not acting under duress, menace,
fraud, or undue influence, and was in every respect compe-
tent by last will to dispose of all his estate; and that it was
executed in the manner and form prescribed by the statute;
and that the executor named consents to act. The petition of
said Haven further avers : That said decedent Hill also left
another will in the possession of one Mrs. Mary E. Connor,
dated November 13, 1884, in which said Haven is named as
executor, and Wm. II. Aiken, Mary E. Connor. John Wool-
382 Coffey's Probate Decisions, Vol. 1.
ley, Maggie E. McCann, all adults; Eugene McCarty and
Annie Riley, minors, and "The Soldier's Home" of Cali-
fornia, a corporation, are named as devisees or legatees ; that
the witnesses to said will are John E. Donnelly and Maurice
J. Burns, and that at the time said will was executed, No-
vember 13, 1884, said testator was of competent age and of
sound and disposing mind; and, in view of the premises,
petitioner prays the admission of both instruments to pro-
bate, and that letters issue to him as executor.
The application of said Haven is opposed by John Wool-
ley, who contests the probate of the wills above mentioned
upon the grounds (after alleging that he is the nephew
and next of kin and heir at law of decedent Hill), that the
said wills were not executed according to law, nor signed by
Hill nor by his direction, and were not his last will; that at
the time of their execution Hill was and for a long time
prior thereto had been of great age, blind, feeble, debilitated
and deranged, both in bodily and mental health, and in-
capacitated thereby from executing a will ; that at the time
of the alleged signing said Hill was, and had been for a
long time prior thereto, habitually intemperate from the
constant and excessive use of intoxicating liquors, and was
thereby so mentally deranged as to be incapacitated from
making a will; that at the time of the alleged signing of
said wills said Hill was unlawfully influenced and coerced
by certain persons, beneficiaries named in said wills, who
took advantage of his weakness and his trust in them to
compel him to make such disposition of his property ac-
cording to their desires, and not his own; that in and prior
to the month of February, 1884, contestant Woolley had the
custody and care of the person of said deceased; that during
said time and prior thereto he enjoyed the confidence and
trust of said deceased; that in or about said month of Feb-
ruary, 1884, said deceased was removed from his care and
custody by the order of said Haven, who was then guardian
of the person and estate of said Hill, and consigned to the
care of Mary E. Connor (one of the beneficiaries named in
said will), where Hill remained until his decease in June,
1885, that after the removal of Hill to the care and custody
of said Mary E. Connor, the contestant made repeated ef-
Estate of Hill. 383
forts to see him, but was repulsed, and in every instance re-
fused permission to enter the house of said Mary E. Connor,
where said Hill was kept; that said Haven and the others
named as beneficiaries in said wills, with intent to de-
ceive and to influence Hill to make said wills, prevented
contestant from seeing said deceased, and excluded him from
the society of Hill ; that none of said persons named as bene-
ficiaries is of kin to deceased, nor entitled to a distributive
share of his estate ; that all of them knew that at the time
of the alleged sig-nino; of said wills Hill was, from the causes
already specified, easily influenced by those by whom he was
surrounded, and that so knowing they so wrought upon his
bodily and mental weakness to influence, by false tales and
accusations directed against said contestant, that he became
causelessly embittered and angry with contestant, and was
thus induced and influenced to make said wills; that a long
time prior to the alleged signing of said will the superior
court of San Francisco granted to said Haven letters of
guardianship of the person and estate of said Hill, on the
ground that said Hill was then and there an incompetent
person ; that at the time of said alleged signing of said wills
and prior thereto said Haven was the legally appointed,
qualified and acting guardian of said Hill, and continued to
act as such to the time of Hill's decease; that Aiken, named
as one of the beneficiaries in said wills, had acted as Hill's
attorney, legal adviser and confidential friend in matters
connected with the pension and arrearage thereof due said
deceased from the government of the United States; and
that the other persons aforementioned as beneficiaries were
in more or less close and intimate relations with said de-
ceased, and used every means to obtain his confidence up
to the time of the said alleged execution of the said wills,
and did so obtain his confidence, and that they knew his
mind was weak anl easily influenced; and that they and
each of them did perpetrate a fraud upon said deceased by
inducing him to sign said paper; that they and each of them
suggested to said deceased, prior to the time of said alleged
signing, that contestant was an impostor, and was attending
to and caring for said deceased for the purpose of getting
his money and estate, that contestant was constantly rob-
384 Coffey ^s Probate Decisions, Vol. 1.
bing deceased of his money, and other suggestions of like
nature; which suggestions were false and fraudulent, and
made with intent to deceive said deceased and had that ef-
fect, embittering his mind against contestant, and inducing
him while in such frame of mind to sign said will.
The foregoing is the substance of both counts of the con-
test, to which answer was made by the proponents and by
the legatees named in said will, denying specifically all the
charges and averments of the said contest tending to estab-
lish its invalidity, and alleging that said will or wills were in
all respects valid and entitled to admission to probate.
Thos. J. Hill, the testator, came to California as a soldier
in the Stevenson Eegiment in 1847, having enlisted in New
York in the year preceding; in October, 1848, he was dis-
charged, and went, in 1849, to the mines, being mainly
engaged in Tuolumne county, where he took an active inter-
est in public affairs, and was a candidate for sheriff of the
county, without success, and the occupant of the post of
deputy sheriff, and otherwise locally conspicuous; his career
was marked by the vicissitudes common to the experience of
early days in California, until, in 1861, he re-entered his
country's service as a volunteer, and continued until the
expiration of his term of enlistment. The exposure and
hardship undergone by him during a portion of this period,
while stationed in Arizona, resulted in an impairment of his
vision which compelled him to enter the County Hospital,
and ultimately his entire loss of sight and transfer to the
almshouse. Upon being awarded a pension by the govern-
ment, sufficient to enable him to live comfortably, according
to his station, he left the Almshouse and came to the city.
Here he lodged at different places, having hired attendants,
until his nephew, John Woolley, the contestant, was sent for
to the country and came to care for him in May, 1883, remain-
ing until February, 1884, when he left, according to his own
testimony, because the service was too confining and he
couldn't get along with the boy, Thos. J. Conroy, whom Hill
had hired about three years before, and who was and had
been for nearly all that time the personal attendant of the
blind man, who had acquired an attachment for the boy, in
Estate of Hill. 385
spite of certain censurable traits in the latter 's character.
The pension was procured thfough the agency of W. H.
Aiken, an attorney at law employed by Hill for that purpose,
who began his acquaintance with Hill in 1869, when the
latter visited him at his office to secure his services in that
behalf, and from that time on they continued intimate, and
when, the pension being obtained, Hill came out of the Alms-
house, it was Aiken who selected a room for him and visited
him frequently, and obtained from time to time financial
favors from him, and seems to have been his main adviser
until, on account of the transaction between Hill and Pension
Agent Cox, which came to a head in 1882, the decedent was
placed under guardianship. That transaction, with which
Aiken testifies he had nothing to do, consisted in Hill's allow-
ing Cox to invest $5,000 of his pension moneys in a mortgage
on a mill that burned down, and a mine that "petered out";
which conduct of Cox coming to the notice of the govern-
ment, a special agent of the treasury, a Mr. Magan, was sent
out to investigate, and, as a consequence, a restitution of the
amount was made by Cox to Hill. Thereafter, in January,
1883, the special agent Magan introduced to Hill the pro-
ponent, James M. Haven ; this was at a house on Vallejo
street, where Hill was in charge of Conroy and a Mrs Clark,
a house attendant. January 29, 1883, the petition of said
Magan was filed, asking, for the reasons that Hill being
upward of sixty years of age, totally blind and in feeble
health, and by reason of extreme old age and of recent sick-
ness which had impaired his mind, being mentally incompetent
to manage his property, that a guardian of his person and
estate be appointed, and praying that said Haven be ap-
pointed. On the 5th of February the (iourt found that
said Hill had estate that needed care, and "that said Thomas
J. Hill, by reason of blindness, old age and physical infirmity,
is incompetent to manage his business or take charge of his
estate," and ordered that Haven be appointed guardian, and
that letters issue upon filing a proper bond. From that time
Haven took charge of Hill as guardian, and directed his
nflPairs until the death of the ward; visiting him frequently
i\t his various places of residence, counseling him, and seeing
Prob. Dec, Vol. 1—25
386 Coffey's Probate Decisions, Vol. 1.
to the service of attendants. During this period Conroy,
and after him one Adams, owaited on Hill until Woolley
came as stated, and Woolley had principal personal charge
until February, 1884. Woolley went to the office of the
guardian. Haven, and said he couldn't remain longer with
Hill because of the latter 's abuse; and immediately Haven
caused Hill to be removed to the house of Mrs. Mary E.
Connor, whither Hill was content to go. There, it is said^
he improved greatly in condition, and at that house he
executed the will of March 22, 1884, and of November 13,
1884, which instruments are here under contest.
The first question to be considered is the effect of the
existence of the letters of guardianship upon the capacity
of Hill to make a will.
Counsel for contestant contends that the testator, having
been declared mentally incompetent, he could not execute
a will until his restoration to capacity, and that such
restoration must be determined in the same manner as his.
incapacity, according to section 40 of the Civil Code, which
reads :
"Section 40. After his incapacity has been judicially de-
termined, a person of unsound mind can make no conveyance
or other contract, or waive any right, until his restoration
to capacity. But a certificate from the medical superintend-
ent or resident physician of the insane asylum, to which such
person may have been committed, showing that such person
had been discharged therefrom, cured and restored to reason,
shall establish the presumption of legal capacity in such per-
son from the time of such discharge. ' '
The section as here quoted was adopted in 1878, and was
an amendment of the statute which theretofore read as fol-
lows :
"Section 40. After his incapcity has been judicially
determined, a person of unsound mind can make no convey-
ance or other contract, nor delegate any power, nor waive
any right, until his restoration to capacity is judicially
determined. But if actually restored to capacity he may
make a will, though his restoration is not thus determined."'
Estate of Hill. 387
Counsel for contestant claims that the section as amended
in 1878, and as it has continued since, is a conclusive bar to
testator's act, until he shall be restored to capacity by judicial
decree. But the section of the Civil Code speaks of "a
person of unsound mind," and would seem to refer to those
persons whose minds are so deranged as to necessitate com-
mittal to an asylum for the insane, and even in such case it
is not at all clear that "restoration to capacity" means a
judicial ascertainment and declaration to that effect. If it
were intended to have such meaning, one word only was
necessary to place it beyond doubt ; the legislator could easily
have employed the epithet "judicial," qualifying "restora-
tion to capacity"; instead of which he has amended by strik-
ing out the clause "is judicially determined" after those
words, leaving it to be implied, if it be not explicit and in
no need of implication, that actual restoration to capacity is
the true intent of the section.
But it is not clear to my mind that "insane" and "incom-
petent" are, as counsel for contestant contends, convertible
terms. A person may be incompetent by reason of insanity,
or from some other cause incapable of caring for his prop-
erty — the statute speaks of the "insane or incompetent"
person (Code of Civil Procedure, section 1763) ; it speaks
further (section 1766) of the proceeding for judicial restora-
tion to capacity before the court of the county in which the
person "was declared insane"; it requires notice to be given
to the guardian and relatives of "the person so declared
insane or incompetent." From a consideration of the w^hole
of the statute, I am of opinion that there is a distinction and
a difference between "insane" and "ineompetent, " and that
they are not. in the sense of the statute, convertible terms.
Now, what did the court declare in the proceedings to adjudge
Hill incompetent? Was he declared insane? It seems not;
for the finding of the court is in these words: "That said
Thomas J. Hill, by reason of blindness, old age and physical
infirmity, is incompetent to manage his business or take charge
of his estate."
Upon the finding, the result of the "full hearing and
examination" (Code of Civil Procedure, section 176-4), by
388 Coffey's Probate Decisions^ Vol. 1,
the court, Haven was appointed the guardian of Hill. Now,
I apprehend that, in judging of the effect upon Hill's testa-
mentary capacity of the guardianship proceedings, this
court must have resource to the decree or "declaration of
incompetency ' ' and be bound by its terms ; and the whole
of that decree or declaration, as hereinabove quoted, contains
no item importing insanity. I have given to this question
the greater consideration, because the full and forcible pres-
entation- of the views of counsel for contestant impressed
me strongly at the hearing, and I have felt in duty bound to
examine carefully the grounds of his judgment, as stated in
argument; but after examination I am constrained to differ
from him. I do not think that the guardianship proceedings
which resulted in the order of February 5, 1883, took away
the testamentary capacity of Thomas J. Hill, or that it is
"a conclusive bar" to this proceeding. It is proper, there-
fore, to consider the evidence as to the sanity of the testator
at the times of the execution of the instruments propounded
for probate.
Was Thomas J. Hill, the testator, of sound mind on March
22, 1884, and November 13, 1884, or on either of those occa-
sions, when the papers offered for probate were signed?
Civ. Code, sec. 1270. ,
Contestant alleges that at those times decedent was of
great age, blind, feeble, debilitated and deranged in bodily
and mental health, and thereby incapacitated from executing
a will; and that also at said times decedent was intemperate
from constant use of intoxicating liquors, and thereby so
mentally deranged as to be incapacitated from making a will.
In support of these allegations contestant, after producing
the documents to assail their validity, introduced James M.
Haven, who testified that Hill died June 24, 1885 — Haven is
the proponent — Maggie E. McCann, a subscribing witness to
the first will, who identified the instrument and narrated the
circumstances under which she signed as a witness. She
testified that Hill was blind; that he said to her, "Margaret,
sign this," and that at the time he was of sound mind and
acting of his own will and declared it to be his will, etc. John
E. Donnelly, a subscribing witness to the will of November
Estate of Hill. 389
13, 1884, testified that he knew Hill, and that he signed the
paper at 224 Eleventh street, San Francisco, at Hill's request,
in his presence and in the presence of the other witness,
Maurice J. Burns, Hill declaring the paper to be his last
will and testament. Witness Donnelly drew this last will,
and every word of it was dictated by Hill ; witnesses Donnelly
and Burns were inmates of the same house where Hill was
residing, and had known him in that way for some months
prior to this occasion. Donnelly further testifies that Hill
dictated the outlines of the will and he wrote it. Hill said,
' ' Give to so and so, ' ' and then the scribe filled it out ; the
testator said to Burns, the other witness, "Maurice, sign
this. ' ' The will was read to Hill by witness ; Hill made his
mark -|- to the paper, and one Charles H. Middleton wrote
his name as witness to the mark. The testator w^as very
particular about his will, so testifies Donnelly. After the
testimony of Donnelly contestant offered in evidence the
papers in the guardianship matter, to show that the testator
was of unsound mind at the time of signing the wills ; and
then called Eleanor White, who testified that she knew Hill,
who rented apartments of her at 1141 Folsom street, where
Mr. Woolley was his nurse, to whom he was very friendly.
This began in June, 1883 ; Hill was intemperate in his habits ;
he drank to excess ; his mind was very weak ; she saw him once
or twice a week for the first two months, and not so often the
last month; saw him an hour or two at a time; herself and
husband frequently called upon Hill ; in her opinion Hill was
not of sound mind ; her reason for this opinion was what she
saw of him and his conduct; his nephew, the contestant, was
with him all the time, and was very kind to him ; Hill ap-
peared to her at all times like a man who was under the
infiuence of liquor; Conroy was Hill's attendant during this
time ; witness never had seen an insane person, and her opinion
of Hill's unsoundness was based upon his habits of drinking
and his changeable views.
The next witness was Dr. N. P. Foster, a physician whom
Woolley took to see Hill in November. 1883, and he found
Hill suffering from alcoholic poisoning. The witness defined
the different phases of alcoholism; Hill was delirious; wholly
390 Coffey's Probate Decisions, Vol. 1.
oblivious to everything ; not conscious of any of his surround-
ings; taking his condition altogether, he might be the victim
of chronic alcoholism ; he was in an advanced stage of alco-
holism; the witness judged from his observation of Hill that
he had been a hard drinker for years; chronic alcoholism
impairs the mind and gradually leads to general imbecility.
Dr. Foster further testified that he saw Mr. Hill at 106
Langton street; he was there about half an hour; Hill's con-
dition couldn't have been brought about by a single debauch;
the room was comfortably furnished, and Hill was cleanly
clad. Woolley was sober enough to know what he was about,
although the witness paid no particular attention to him, as
Woolley was not his patient.
Thomas J. Conroy, the attendant of Hill, testified that he
first went to work for him in 1881 ; left him three or four
times ; worked for him over three years oif and on, took charge
of his room, led him around wherever he wanted to go ; never
heard any of the Connor family talking to him about any-
body ; Plill called Mrs. Connor ' ' mother, ' ' she called him
"papa," and the children called him "Papa Hill"; the chil-
dren were up there nearly all the time. Eugene McCarthy
waited on Hill a good deal. Eugene is a beneficiary in one
of the wills, as is Conroy in the first will. Conroy testifies
that Hill was not a firm man, very changeable in mind; he
would never have his right mind talking ; he said he would
never have Woolley come near the house ; this was said in
presence of the Connors; Hill drank very much; if liquor
was not given to him he would jump up and get mad, curse
and swear, and say, "if he couldn't have liquor he might
as well die"; he would rather drink whisky than eat. Mr.
Aiken would come and borrow money sometimes, and he
would stay half an hour talking; witness was present some-
times during their conversations. Aiken had an influence
over him; everything Aiken would tell him to do he would
do ; Hill was easily influenced by those around him. Witness
is a few months over eighteen years of age ; witness was pres-
ent at the time Mr. Haven drew the will of March, 1884, in
which he (witness) is a legatee for $500; Hill sent for Haven
to make out a new will; witness couldn't remember the con-
Estate of Hill. 391
versation ; Haven was there half or three-quarters of an hour.
Hill was very firm in insisting on his whisky ; he was strong
on that subject, and he was very stubborn on the question of
refusing admission to the Woolleys ; witness read the paper
to Hill every morning, and got books from the library; Hill
used to talk politics with persons sometimes ; he also planned
to go out on Decoration Day, and we went out: he used to
know when witness went out and when he came in ; still, wit-
ness thought there was no great intelligence about him; he
could recognize a man by his voice, not by his step.
John Bush, another witness, was the landlord of the place
I305I/2 Vallejo street, which was occupied for a while by the
deceased; witness saw Hill occasionally, used to visit him to
keep his spirits up when he had no society; Hill was blind,
paralyzed a little on the right side, a little lame in the arm ;
he had a nurse, a lady, and a boy to attend him; Hill was
so fickle-minded that witness didn't think he knew his own
mind; Hill used to say, "They are robbing me entirely"; he
said Haven, his guardian, threatened to take his pension
away; in witness' opinion Hill could be led by those about
him : Mr. Aiken rented the place from me for Hill ; witness
saw Aiken there on several occasions. Hill said that Aiken
charged him $750 for the furniture in the "flat," which, in
witness' opinion, was worth no more than $150; Hill said
that if he didn't do as Haven told him the latter would stop
his pension and put him back in the Almshouse ; witness took
a drink occasionally with Hill; at one time Hill got a Mr.
McManus to see a lawyer to change his guardianship, but
Hill changed his mind, and the man said: "Hill, I want no
more to do with you; you're a fickle-minded man and don't
know your own mind."
Sarah Clark testified that she was nurse for Hill for nine
months, and kept house for him ; saw him every da.y ; he was
in the habit of drinking every day; deprived of his dram
he became very ugly; he alwaj^s spoke well of Aiken and
Haven ; he had no confidence in anybody but Aiken ; wanted
Aiken to come every day; if he wanted to buy anything in
the shape of dry goods he wanted Aiken to make the pur-
chase; he told her on one occasion that Haven said that if
392 Coffey's Probate Decisions, Vol. 1.
he didn't do as he (Haven) wanted him to do, he would put
him in a private asylum ; Hill told witness that he gave Aiken
$1,000 for procuring his pension; when special agent Magan
visited Hill, the latter told him that Pension Agent Cox had
$5,000 and Aiken $1,000, and he spent money for furniture;
that Cox had invested in a mining mill at four per cent, or
something, and he thought Aiken earned his thousand dol-
lars. Magan introduced Haven to Hill. Hill seemed to know
what was going on; he knew the voices of persons but not
their step ; he said he had no relations ; he drank a great deal,
whisky every fifteen or twenty minutes ; we always put water
in it ; once he had delirium tremens ; Conroy, the boy attend-
ant, used to give him whisky; couldn't help it, because he
would get ugly for it ; Conroy used to treat Hill cruelly, would
provoke him; sometimes the boy would go away and stay the
whole night ; this would make the old man wild, but he would
easily forgive him, as he liked the boy very much. Tommy
(Conroy) used to carry the money; during the time of Mr.
Magan he didn't drink so much, perhaps five cents worth of
beer a day, for say two months, January and February, 1883 ;
witness left him in May, 1883.
Dr. James D. Whitney, physician and surgeon, of over
twenty years' practice here, visited Hill once when the lat-
ter had broken his arm, but another doctor nearer by was
called and there was no occasion for witness; this was in
Vallejo street; Hill was in a very nervous condition and re-
quired anodynes; witness was afraid he would go into de-
lirium tremens; he was evidently suffering from alcoholism;
couldn't say, except from information, whether he was in a
primary or advanced stage; assuming he was suffering from
alcoholism and partial paralysis, witness should say he was
of unsound mind ; if his mind was not too much affected be-
fore, a change to comfortable conditions would tend to restore
him to a normal state.
Patrick Lynch, a resident of San Francisco off and on since
1847, testified that he knew Hill from 1846, when he first
saw him on Governor's Island, New York, then afterward in
1847 at the Presidio; after that saw him on Guerrero street
during the year 1883, called there frequently to see him ; had
Estate of Hill. 393
conversation with him; would not think he was insane but
wouldn't put him up for a man of strong mind; witness'
opinion was that Hill was a man of changeable mind ; didn 't
think he was in his right, sound mind at any time he visited
him on Guerrero street, when Woolley had charge of him, say
in 1882; Woolley 's treatment of Hill was kind, food good,
rooms clean ; their relations very friendly ; Hill spoke kindly
of Woolley, called him "nephew," and Woolley called him
"Uncle Tom." Witness was a subscribing witness to a revo-
cation of a will, together with Woolley; the revocation was
drawn by John Quincy Adams and was signed by Hill on
Guerrero street ; had conversations with Hill about his blind-
ness; he told witness it was caused by neuralgia, and heat
and exposure in Arizona; saw James Adams and others on
Guerrero street ; Adams had been acting as nurse ; there were
four rooms in the house which they occupied ; house well kept,
fc.nd Hill's personal condition neat and cleanly; Hill was gen-
erally intelligent in conversation; he and witness would talk
over the topics of the day and over old times when they were
soldiers together; from 1849 to 1873 or 1874 witness lost
sight of Hill; once Hill was angry because he wanted to set
up Woolley in business and let him have $2,500 or $3,000,
and Haven wouldn't allow it; witness didn't advise one way
or other, but simply said he thought it might be a good thing.
James Hill knew deceased in 1883; they were neighbors
in 1141 Folsom street; they were veterans of the war, wit-
ness of 1861-65, deceased of the Mexican War; witness knew
of no particular delusion, except when Hill was in liquor.
John Woolley, contestant, testified that deceased was wit-
ness' mother's brother; first met him on Guerrero street; he
had sent a letter inquiring for witness, who didn't care to
stay with him, as witness had a family in- Placer county ; wit-
ness took charge of him May 11, 1883, and left him in Feb-
ruary, 1884; their relations were good; witness treated him
as kindly as if he were a child, and the feeling was kind in
return, until Plill's mind was poisoned against witness; wit-
ness gave Mr. Haven as a reason for leaving Hill that the
life was too wearing for him and he was too closely confined ;
witness didn't know who poisoned ITill's mind against him.
394 Coffey's Probate Decisions, Vol. 1.
but he thought so from Hill's changes; he cursed him and
his wife ; witness didn 't receive any particular compensation ;
witness went there from love, because Hill was his mother's
brother; Hill offered him twenty dollars per month; witness
told Hill he couldn't take any such sum, but witness did draw
some; the day witness left he had a conversation with Hill
in Haven 's presence, when witness asked Hill for some money,
and Hill answered that he didn 't owe him ' ' a d d cent ' ' ;
witness told his uncle he thought that was pretty hard after
his kind treatment of him, and Hill said witness treated him
well; witness was housekeeper and nurse, and did the cook-
ing. There was also introduced in evidence by contestant
a paper purporting to be a will of Hill, dated August 20,
1882, to show that a large number of persons named as bene-
ficiaries were relatives of Aiken, named therein as executor;
this paper came from the possession of James M. Haven, who
proceeded to explain certain pencil marks and memoranda on
the margins of the paper, made and used in the drawing of
another will by Haven for Hill ; this document was called the
"Blood," or "Aiken," or " Blood- Aiken " will to distinguish
it from the others.
I think the foregoing is a fair short statement of the sub-
stance of the testimony for contestant and plaintiff herein.
For the proponent and defendant Donnelly testified as be-
fore substantially, and also that Hill was a very neat and
tidy man, of cleanly habits, intelligent and well posted in
affairs, could hold his own in argument; fond of music, de-
lighted with witness' banjo playing; witness is an actor and
variety performer; witness was of opinion that Hill was per-
fectly sane at time of making the wills of March 22 and No-
vember 13, 1884; judged so from his conversation and con-
duct and manner; he was logical and clear in argument.
Maurice J. Burns, the other subscribing witness to will of No-
vember 13, 1884, corroborated witness preceding. Both these
witnesses were friends of the Connor household.
Edward Barthrop came to California in same regiment with
Hill, knew him continuously thereafter until 1849 ; were min-
ing partners in Tuolumne and other mines; afterward wit-
ness met Hill at the beginning of the war of 1861-65, in which
Estate of Hill. 395
they both served in different branches of the Union Army;
next saw him in Guerrero street ; had a conversation with him
of about an hour's length at that time; he was perfectly sane
in mind; witness' reason for this opinion was that he could
discern no difference between Hill then and when he had seen
him before, except that physically he was blind and para-
lyzed; saw him again on Guerrero street; paid a third visit
c>nd he had moved to Langton street, where he was not as
comfortably situated; WooUey was attending to him there;
James Adams was his attendant on Guerrero street ; had con-
versed with him on Langton street for about twenty minutes ;
he was of sound mind; next saw him on Eleventh street at
Mrs. Connor's; his condition as compared with what it was
on Langton street was materially improved in his surround-
ings, and as to his manner and his cheerfulness; called there
about twice in November, 1884, about two or three times a
week witness called there; had one conversation of three
hours' duration; Hill said he was contented; his memory w^as
good, he set witness right as to dates, had a retentive mem-
ory; he was sane in mind; witness never had any reason to
doubt it; Hill said to witness that he was glad to get rid of
WooUey; that if he had stayed there with Woolley he would
have died, if he had remained on Langton street, whence
Haven had removed him; Hill told witness he had been left
alone in the house at night, and that his money had not been
properly accounted for; Hill said he was satisfied with his
guardian and was contented; witness disclaimed any knowl-
edge of the terms of the will, or intimacy with the parties.
Frederick L. Post first met Hill in New York in 1846, at
the headquarters of Company A, Stevenson 's Regiment, where
Hill was mustered in as a drummer, witness was orderly ser-
geant; in October, 1848, the regiment disbanded; next saw
deceased in 1861, and again in 1874 or 1875; after that he
went to Almshouse ; in 1878 he was brought in to get his pen-
sion, and Colonel Stevenson and witness identified him; in
1882 witness had a Thanksgiving dinner with Hill ; their con-
versations were usually about the old regiment, its survivors,
and like topics ; Hill desired witness to make inquiries about
his relatives, as he desired to leave them what he had ; at his
396 Coffey's Probate Decisions, Vol. 1.
instance I wrote to Wm. Woolley, his sister's husband, at
Campo Seco, who was a member of their old company; next
saw Hill on Guerrero street; his nephew had charge of him;
witness used to stay there an hour or two at a time ; once Wm.
Woolley was there on a visit ; on Decoration Day of 1883 wit-
ness accompanied Hill in a carriage to Odd Fellows' Ceme-
tery, was with him three or four hours that day, the best
part of the day ; witness next saw him on Langton street ;
he seemed to feel uncomfortable ; whisky was the trouble ; saw
him again when he removed to Eleventh street, in 1885, and
in Jun-e 1884, was there two or three hours. The witness said
that Hill complained of Woolley in some particulars; Hill
seemed to think Woolley 's family were too great a tax upon
his resources ; Hill was well treated at the house of Mrs. Con-
nor, but he had too much whisky ; this was true at all times ;
on Thanksgiving Day, 1882, when witness was at dinner with
him. Hill was mentally sane; witness said he could not but
be struck with Hill's extraordinary memory; was struck with
its retentive power,, especially with regard to the details in
obtaining his pension from the agent ; his memory was strong
in accounting for those whom he had kno^vn, or in recount-
ing the scenes through which he and witness had passed;
this was while Hill was at Mrs. Connor's house; witness used
to visit there on Sundays ; Hill was generally clear and lucid ;
sometimes witness said (in answer to counsel for contestant)
he didn 't think he was of sound mind ; he was weak and vacil-
lating, except upon the question of drink, and upon that point
he was very positive; witness thought that persons who con-
stantly plied him with liquor could do anything they pleased
with him; when witness was at Mrs. Connor's, Hill was sup-
plied with liquor upon his demand; not more than two or
three times upon any occasion; he was subject to vagaries;
the one who was nearest to him and humored him most could
do almost anything with him ; witness thought Hill had more
liquor at Vallejo street than elsewhere; when he was under
care of Mrs. Clark and the boy Conroy ; on Folsom street Hill
talked as if he was ill-used ; "v\ntness saw him there only once ;
he seemed aggrieved about Conroy 's conduct; witness thinks
Hill was unduly influenced by the Connor family; there was
Estate of Hill. 397
too much cajolery, in the opinion of witness, more than could
be paid for by so much a month; Hill was very well taken
care of; there was so much done to make him happy, there
seemed to be something behind that witness couldn't explain
exactly.
Miss Mary E. Morrison, a school teacher, an intimate friend
and frequent visitant at the. home of Mrs. Connor, saw Hill
often while there ; never saw him under the influence of
liquor; thought he was mentally sane, because he talked to
her so lucidly; he discussed political issues and seemed well
informed; Hill improved very greatly in the Connor house;
when he first came he was not so cheerful as he afterward
became ; he grew stout ; he told witness that at one time he
wanted to put a pistol to his head and Woolley put one in
his hand, and Master Conroy corroborated this stqgtement.
Mrs. Ann Hennings, another intimate friend of the Con-
nor household, testified to same effect as to sanity of Hill.
Chas. H. Middleton, as to will of November 13, 1884, tes-
tified that he witnessed the mark, and Hill was mentally sane
at the time; witness lived in the same house, and saw much
of *Hill and conversed with the old man ; for the last five
weeks of Hill's life witness was with him night and day, ex-
cept two nights, when witness was relieved.
Dr. M. A. Cachot visited Hill for the first time on May 20,
1885, made in all thirteen or fourteen visits; the patient al-
ways answered promptly and to the point all questions; wit-
ness never saw any sign of insanity in him; he was sane;
witness was family physician of the Connors, is a graduate
of college, at one time in charge of St. Mary's Hospital; Hill
was not suffering from alcoholism when witness saw him ; bore
no symptoms of alcoholism.
Dr. S. R. Gerry, a thirty-six years' practitioner in San
Francisco, a physician since 1839, knew Hill in the Almshouse,
of which institution witness is and was resident physician;
Hill had amaurosis, paralysis of the optic nerve; otherwise
he was in good corporal condition ; had frequent conversa-
tions with him, reminiscences of Mexican War and topics
like that ; afterward witness visited Hill on Chestnut street
about twice, two or three years ago; in the Almshouse pre-
398 Coffey's Probate Decisions, Vol. 1.
scribed occasionally a little whisky and brandy for him, not
regularly or continuously ; Hill was in the Almshouse ten
or twelve years; he was bright and intelligent, mentally sane
at all those times; witness based his opinion on the general
tenor of Hill's conversation; he was a very tractable patient,
easily governed, but he had a strong will of his own, as wit-
ness judged from his positive manner; witness didn't think
that he was easily influenced.
Dr. L. L. Dorr, a physician and surgeon, first met Hill be-
fore the pension board, of which witness was a member, in
1880; afterward in 1882 for a half hour, perhaps, treated
Hill for some ailment of the bowels ; conversed with him on
his physical condition, about his blindness; this was July 18,
1882 ; he was perfectly sane ; if he were not sane in the ex-
aminatioi^ before the pension board, witness would so report.
Witness said a person suffering from chronic alcoholism might
be competent to make a will.
Miss Maggie E. McCann repeated substantially her testi-
mony as to execution of will of March 22, 1884; she knew
Hill all the time he was at her mother's house, of which wit-
ness was an inmate ; conversed with him frequently ; he spoke
of Mr. Woolley, said he tried to beat him once on Langton
street, and Conroy saved him, and that was the reason he
liked the boy; at the time of the execution of the will of
March 22, 1884, Hill asked Haven if he would accept any-
thing, and Haven said: "I don't wish any of your money;
don't need it." On November 13, 1884, Hill was sane in
witness' opinion.
Dr. Julian Perrault, physician and surgeon in San Fran-
cisco since 1859, saw Hill September 25, 1882; treated him
for quite a severe injury to the arm ; thought Hill had been
drinking too much ; Hill was rather an intelligent old man,
and witness sometimes chatted with him when time permitted ;
never saw him intoxicated; he was an old soldier, and wit-
ness thought his condition required stimulants, and witness
allowed him a certain quantity of whisky; Hill was a man
of strong will and good understanding; there was nothing
about him to indicate chronic alcoholism when witness saw
him; the quantity of liquor witness prescribed would be
Estate of Hill. 399
about two gallons a month; the first night witness saw Hill
he was suffering from acute alcoholism — that is, the result
of one debauch; whether three gallons a month would be
too much liquor would depend on a man's physical organiza-
tion; some men can stand that much without injury.
James H. Adams knew Hill in 1846, a fellow-soldier; had
the care of Hill on Guerrero street and on Vallejo street;
he was correct in his habits; after Woolley came the quan-
tity of whisky was greatly increased; Woolley drank and
others, outsiders; Hill was very generous and liked to treat
his friends well; he was never intoxicated before Woolley
came ; never under the influence of liquor ; afterward wit-
ness saw Hill intoxicated, sometimes very far gone; always
considered Hill perfectly sane ; he was as clear and level-
headed as any man witness ever had to do with ; witness was
with Hill six w^eeks ; four weeks before Woolley came, and
two weeks after that event.
Wm. Kane worked for Hill two days and a night, and
lived hard-by Hill on Langton street for about two months;
went there after Woolley left; Hill wasn't very clean; clothes
old and shabby ; no shoes on ; wore slippers when we took him
to Mrs. Connor's; Hill was afraid of Woolley 's coming back;
witness remained to protect him as much as anything else;
Hill told witness to throw Woolley out if he came back.
Eugene McCarthy took care of Hill from May 1, 1884, until
his decease; attended on him, gave him a tablespoonfiil of
whisky when he wanted it; used to read to him and wait
on him; witness has been at Mrs. Connor's about three years;
Hill paid him same as Conroy, fifteen dollars per month ;*saw
Hill intoxicated three times — Decoration Day, his birthday,
and Fourth of July.
W. H. Aiken testified as to his relations with Hill, and
gave his opinion that he was sane at all times, remarkal)le
memory, and acute hearing and sensible conversation were
characteristics of Hill ; he could tell a person by his step ;
was very bright and intelligent.
John Hogan, a resident in the Connor house, testified sub-
stantially the same as other inmates therein, who saw Hill
frequently and conversed with him.
400 Coffey's Probate Decisions, Vol. 1.
Mrs. Mary E. Connor testified that she was the person
mentioned by that name in the instruments propounded ; she
became acquainted with Hill on Langton street; called there
with the sister of Conroy to see Hill ; Mr. Woolley was there
and said he was going to leave ; Hill complained of Woolley ;
said he could drink more than himself ; could take beer three
or four times a day, and whisky in the morning; Hill was
neat and intelligent; had taste for reading, and liked per-
sons to read for him newspapers and books; liked music
greatly; was perfectly sane; he didn't want to see Woolley;
didn 't want him in the house ; didn 't think it right that Wool-
ley brought his family to live on him, and to make him sup-
port them ; she felt friendly toward Woolley.
James M. Haven testified that he was the executor named
in instrument dated March 22, 1884; Hill told him he was
never married; witness became acquainted with Hill in Jan
uary, 1883 ; was introduced by special treasury agent Magan,
in Vallejo street, when Conroy and Mrs. Clark had charge
of Hill; after the Woolley family came, Hill complained of
the circumstances, and of what Woolley 's wife once said
when Hill spoke of the noise made by the children; Mrs.
Woolley said she wished "his old carcass was at the bottom
of the bay ' ' ; once when witness was present Woolley and
Hill had very rough talk ; Woolley said he couldn 't stay with
Hill, nor could anybody else; afterward Woolley came to
witness' office and said he couldn't stay longer with Hill,
because Hill abused him, called him vile names and so on ;
the next day after Woolley left, Hill was removed to Mrs.
Connor's house; witness selected the place and caused the
removal, and Hill was content to go there ; after that he im-
proved verj^ greatly ; witness was with him when he died ;
saw him for two hours and a half before ; on March 22, 1884,
Hill was perfectly sane; as to the instrument called the
"Blood" or "Aiken" will, witness made the pencil marks
at the direction of Hill, when he was giving witness instruc-
tions for drawing the will of March 22, 1884; on November
13, 1884, Hill was sane ; he acted at all times like a sane man ;
his conversation was intelligent; there were times when Hill
was under the influence of liquor when his mind was not
Estate of Hill. 401
sound; Hill told witness that Woolley wanted him to revoke
the "Blood-Aiken" will. Hill told witness to give Wool-
ley, his wife and children $1 each; witness suggested larger
sums for the wife and children, saying he didn't think they
should suffer for Woolley 's wrongdoing, but Hill said, "No,
I'll give them but a dollar apiece." Hill was not a man
easily susceptible to influence; it was very hard to influence
him; witness never said that if Hill didn't do as he wished,
he w^ould put him in a lunatic asylum; but did insist on
Hill's leaving Vallejo street, and getting into a better locality.
H. J. Stafford, a justice of the peace of San Francisco,
and an attorney at law, knew Hill; met him two or three
times before last election (1884) ; had conversation with him
on general topics; upon politics so far as it was safe for
witness to venture; Hill was very radical in his views, and
witness, being of opposite opinions, didn't think it prudent
to pursue such discussions; Hill was sane; there was noth-
ing about him to indicate insanity, and witness never had a
suspicion of Hill's sanity; he was a man of very strong
convictions and wanted to argue; ready for argument; clear
and logical in his processes of reasoning.
The foregoing is a fair view of the substance of the testi-
mony on both sides.
So far as the execution of the documents propounded are
concerned, they are both executed in all particulars conform-
ably to the statute : Civ. Code, sees. 1276, 1278.
The case of the contestant with respect to the soundness
of mind of the testator is not established ; the great prepond-
erance of evidence being that he was at all times — when not
under the influence of liquor — intelligent, clear and strong
in mental faculties, with a retentive memory and a positive
will ; the physicians particularly are upon this point plain-
spoken. Doctors Cachot, Perrault, Gerry and Dorr saw
much of him, and speak with precision and emphasis; Doc-
tors Foster and Whitney each but once, and under circum-
stances not so favorable as the others for absolute judgment
All these gentlemen are in good professional standing, and
entitled to credence and respect; but the conditions under
which the two last named saw their patient dift'er from the
Prob. Dec, Vol. 1—26
402 Coffey's Probate Decisions, Vol. 1.
others to such an extent as to render their testimony much
less valuable; and their testimony as experts is entitled to
no greater consideration than that of the other physicians
who oppose their opinions. I do not think any other con-
clusion can fairly be drawn from the evidence than that
Thomas J. Hill was a man of sound mind. Even if at times
vacillating and vagarious, as the witness Lynch and Post in
substance said, and other witnesses on the same point cor-
roborated, the general tenor of their testimony supports the
theory of sanity; Barthrop, James Hill, James H. Adams
and John Hogan are clear upon this question, and they saw
the decedent frequently during his latter years; two of them
— Barthrop and Adams — being his comrades in the Mexican
War; in addition is the evidence of Miss Morrison and Mrs.
Hennings, which is assailed as interested; but the nature of
their interest is not such as to discredit them; that they are
''friends of the family" is not of itself sufficient to justify a
judge or jury in rejecting their testimony. I do not deem it
necessary to advert further to the testimony upon this point,
an abstract of which I have endeavored to make in the pre-
ceding pages; nor is it necessary to quote here long defini-
tions of soundness or sanity of mind, in order to show how
far short contestant's proofs fall in establishing his al-
legation. I shall only cite: Estate of Black, Myr. 27, 28;
1 Redfield on Wills, 59, 60 et seq. ; 1 Jarman on Wills, 103 ;
Estate of Crittenden, Myr. 51; 1 Redfield on Wills, pp. 84,
85; Estate of Tittel, Myr. 12.
The testator seems to have had some reason arising from
his nephew's conduct for his antipathy toward him; the evi-
dence of Kane and Post is clear upon this point, the latter
especially strong, and there is other testimony to same pur-
port, and explaining this fact as the secret of Hill's affec-
tion for the erratic youth, Conroy. Belief based on evi-
dence, however slight, is not delusion. The testator's mind
was not "possessed" in this particular: Estate of Tittel, Myr.
14.
As to the allegation of habitual inebriety, while it appears
.that the decedent was profound in his potations, it is not
established that his habits so impaired his mind as to inca-
pacitate him from making a will at the times of the execution
Estate of Hell. 403
of these instruments. Notwithstanding his frequent and
copious indulgence in liquor, without which he declared life
not worth living, he seems to have retained an intelligence
and an interest in human affairs that made him to many
persons an entertaining companion. Mr. Post spent hours
with him, and others visited him on account of his agreeable
converse. The testimony of the physicians, Gerry, Perrault,
Cachot and Dorr, is certainly worth considering, with their
knowledge of Hill's habits. Upon this issue the Estate of
Black, Myr. 27 et seq., is very instructive; and the work
of Balfour Bro\^^le on the Medical Jurisprudence of In-
sanity, sections 351-360, and Dr. Ordronaux's Judicial As-
pects of Insanity, 382, may be consulted with profit. The
case of Peck v. Carey 27 N. Y. 9, 84 Am. Dec. 220, should
also be read. Julke v. Adam 1 Redf. 456, and O'Neill v.
Murray, 4 Redf. 318, are good cases in support of these
views; and it is not necessary to add to those cited.
Was either will made under undue influence'? Civ. Code,
sees. 1272, 1575.
Counsel for contestant made strenuous contention that the
circumstances surrounding Hill, at the time of the execution
of those instruments, were such as to carry the inference
that the wills were not the offspring or emanation of the
mind of the testator; but that the craft of Counselor Haven,
the arts and artifices of Aiken, and the manner in which he
practiced upon the susceptible nature and the guileless heart
of Hill, the subtle influence of the presiding genius of the
Connor household, "the fairy godmother of the boy Con-
roy," Miss Maggie McCann, over the blind paralytic, and
the whole atmosphere of undue influence surrounding Hill,
produced the wills, by which comparative strangers acquire
his estate to the disherison of the next of kin. But it does not
appear that there were such ties between WooUey and Hill
as should raise a presumption of obligation on testator '=?
part to him; his life with Woolley was on the whole not a
happy one; and there was a great change when the transfer
was made to the Connor house ; the last days of his life were
made cheerful ; and in this all the witnesses agree who visited
Hill at his home with that family. Whatever the motive,
it was the fact that Hill benefited bodily and mentally by
404 Coffey's Probate Decisions, Vol. 1.
the change. I think a careful examination of the facts in
evidence will fail to substantiate the averments of contest-
ant that the will was procured to be made by undue in-
fluence; and it will not do to base a conclusion upon sur-
mises and suspicions of sordid motives for kind acts, where
there is no direct evidence to fortify such deduction. As
to what constitutes "undue influence," the counsel must be
content with citations, as everything (even a judicial opin-
ion) must have an end. Judge Myrick's valuable probate
reports furnish excellent and convenient definitions and illus-
trations and references : Estate of Black, Myr. 31 ; 1 Jar-
man on Wills, 132-134; 1 Redfield on Wills, 518-520; Chil-
dren's Aid Soc. V. Loveridge, 70 N. Y. 387.
The opinion of Miller, J., in this last cited case is worthy
of perusal : See 1 Jarman on Wills, 141 ; 1 Redfield on Wills,
523, 524.
The allegations of undue influence are not established, and
the like remark may be made with respect to the charges
of fraud: Civ. Code, 1575. Lack of time and pressure of
other duties compel me to abbreviate the discussion of the
principles involved in this case, and to refer counsel to the
summary of the evidence to support the court's conclusion
that the wills should be admitted to probate. Let an order
to that eft'ect be prepared : 1 Redfield on Wills, *435.
As to What Undue Influence will vitiate a will, see Estate of In-
gram, ante, p. 122, and note.
The Appointment of a Guardian for a Person alleged to be non
compos mentis, by a court having jurisdiction, is perhaps prima
facie, but certainly not conclusive evidence of his lack of testa-
mentary capacity: Estate of Johnson, 57 Cal. 529; Ames v. Ames,
40 Or. 495, 67 Pac. 737.
One may Place Himself so Far Under the Influence of Intoxicating
Liquor that for the time being he cannot do any legal act, or he may,
by an excessive use of alcoholic stimulants for an extended period
of time, perhaps permanently dethrone his reason. A person may,
therefore, by an inordinate indulgence in intoxicants, temporarily
and possibly permanently incapacitate himself to make a will. Yet
the fact that one is addicted to the excessive use of liquor, or that
he is in some measure under its influence, manifestly does not, as
a matter of law, establish a want of testamentary capacity. Never-
theless, such inebriety is always admissible in evidence as tending to
Estate of Skae, 405
show unsoundness of mind, or vulnerability to undue influence, its
effect being a question of fact for the jury: Estate of Tiffany, post,
p. 478; Estate of Cunningham, 52 Cal. 465; Estate of Gharky, 57
Cal. 271; Estate of Johnson, 57 Cal. 529; Estate of Lang, 65 Cal.
19, 2 Pae. 491; Estate of Wilson, 117 Cal. 262, 49 Pac. 172; In re
D 'Avignon's Will, 12 Colo. App. 489, 55 Pac. 936; Estate of Van
Alstine, 26 Utah, 193, 72 Pac. 942; Estate of Eathjens, 45 Wash. 55,
87 Pac. 1070.
Estate of ALICE SKAE, Deceased.
[No. 29,150; decided February 15, 1905.]
Equitable Conversion — Whether Takes Place by Implication. — Equi-
table conversion may take place by implication as well as by express
words.
Equitable Conversion — When Worked by Implication. — If a will au-
thorizes the executors to sell real estate, and the general scheme of
the testament manifests an intention on the part of the testator
tnat there shall be an equitable conversion of the realty into per-
sonal property, such a conversion will take place, although the power
to sell is not imperative.
1. Application for partial distribution by Alice Warren
Skae, sole heir at law. Opposition by Mercantile Trust
Company.
2. Application for final distribution by Mercantile Trust
Company of San Francisco, testamentary trustee. Oppo-
sition by Alice Warren Skae.
Wilson & Wilson, for heir, cited the following authorities:
Civ. Code, sees. 857, 864, 1384; Carpenter v. Cook, 182 Cal
621, 84 Am. St. Rep. 118, 64 Pac. 997 ; Morfew v. San Fran-
cisco & S. R. R. Co., 107 Cal. 595, 596; Estate of Fair, 132
Cal. 523, 546, 84 Am. St. Rep. 70, 60 Pac. 442, 64 Pac. 1000 ;
Cooke V. Piatt, 98 N. Y. 35 ; Chamberlain v. Taylor, 105 N.
Y. 185, 194, 11 N. E. 625; Henderson v. Henderson, 113 N.
Y. 11, 20 N. E. 814; Woerz v. Rademacher, 120 N. Y. 62,
23 N. E. 1113; Steinhardt v. Cunningham, 130 N. Y. 292,
29 N. £. 100; Hofsas v. Cummings, 141 Cal. 525, 75 Pac.
110; McCurdy v. Otto, 140 Cal. 50, 73 Pac. 748; Estate of
Walkerly, 108 Cal. 627, 628, 652, 49 Am. St. Rep. 97, 41
406 Coffey's Probate Decisions, Vol. 1.
Pac. 772; Estate of Young, 123 Cal. 343, 55 Pac. 1011;
Estate of Sanford, 136 Cal. 100, 68 Pac. 494; Estate of
Dixon, 143 Cal. 511, 77 Pac. 412 ; Estate of Pichoir, 139 Cal.
684, 73 Pac. 606 ; Estate of Fair, 136 Cal. 79, 68 Pac. 306 ;
Am. & Eng. Ency. of Law, 1st ed., p. 510, and cases cited;
Janes v. Throckmorton, 57 Cal. 368, 383; Bank of Ukiah
V. Eice, 143 Cal. 270, 271, 101 Am. St. Rep. 118, 76 Pac
1020; Scholle v. Scholle, 113 N. Y. 270, 21 N. E. 84; Clift
V. Moses, 116 N. Y. 157, 22 N. E. 393 ; Eraser v. McNaugh-
ton, 58 Hun, 31, 11 N. Y. Supp. 384; White v. Howard, 46
N. Y. 162; Estate of Pforr, 144 Cal. 121, 77 Pac. 826;
Crouse v. Peterson, 130 Cal. 175, 80 Am. St. Rep. 89, 62
Pac. 475, 615; Estate of Lahiff, 86 Cal. 151, 24 Pac. 850;
Fletcher v. Ashburner, 1 White & Tudor 's Leading Cases
in Equity, part 2, p. 1118 (and eases cited on p. 1134) ; 2
Story's Equity Jurisprudence, sec. 1214; 1 Beach on Mod-
ern Equity Jurisprudence, sec. 523 ; Wheldale v. Partridge,
5 Ves. Jr. *397, and note. Walker v. Denne, 2 Ves. Jr.
*186; Samuel v. Samuel, 4 B. Mon. (Ky.) 253, 254; King
V. King, 13 R. I. 501; Becker's Estate, 150 Pa. 526, 24 Atl.
687; Mills V. Harris, 104 N. C. 629, 10 S. E. 704; Tickel
V. Quinn, 1 Dem. (N. Y. Sur.) 428; Keller v. Harper, 64
Md. 82, 1 Atl. 65; Lynn v. Gephart, 27 Md. 563.
Morrison & Cope, for trustee, cited the following authori-
ties: Civ. Code, sec. 1338; In re Pforr 's Estate, 144 Cal.
121, 77 Pac. 827 ; Dodge v. Pond, 23 N.' Y. 69 ; Dodge v.
Williams, 46 Wis. 97, 50 N. W. 1103, 1106 ; Bogert v. Her-
tell, 4 Hill, 492-497, and cases cited; Ford v. Ford, 70 Wis
19 , 5 Am. St. Rep. 117-124, 33 N. W. 188 ; Lent v. Howard,
89 N. Y. 169, 177 ; Moncrief v. Ross, 50 N. Y. 431-436 ;
Doughty V. Bull, 2 Wms. 430; Delafield v. Barlow, 107 N.
Y. 535, 14 N. E. 498 ; Morse v. Morse, 85 N. Y. 53, 59 ; Allen
V. Watts, 98 Ala. 384, 11 South. 646; Harrington v. Pier,
105 Wis. 485, 76 Am. St. Rep. 924, 82 N. W. 345, 50 L. R.
A. 307, 313 ; Given v. Hilton, 95 U. S. 591, 24 L. Ed. 458 :
Power V. Cassidy, 79 N. Y. 602, 613, 35 Am. Rep. 550;
Clarke v. Clarke, 46 S. C. 230, 57 Am. St. Rep. 675, 24 S.
E. 202, 205-207 ; Eraser v. Trustees U. P. Church, 124 N. Y.
479, 26 N. E. 1034; Cherry v. Greene, 115 111. 591, 4 N. E.
Estate of Skae. 407
257; Going v. Emery, 16 Pick. (33 Mass.) 107, 112, 113,
26 Am. Dec. 645; Wurt's Exrs. v. Page, 19 N. J. Eq. 365,
375 ; Falmestock v. Fahnestock, 152 Pa. 56 , 34 Am. St. Kep.
623, 25 Atl. 313 ; Chick v. Ives, 2 Neb. (Unofficial) 879, 90
N. W. 751, and authorities therein cited; Becker v. Chester,
115 Wis. 90, 117-126, 91 N. W. 87, 97-100, 650.
COFFEY, J. Alice Warren Skae is the only child, and
sole heir at law of Alice Skae, decedent, who died in New
York City on the sixth day of July, 1903, leaving estate,
real and personal, in San Francisco and elsewhere, which
she sought to dispose of by a will admitted to probate pri-
marily in the New York county surrogates' court and by
authenticated copy subsequently in this jurisdiction on Sep-
tember 12, 1903, wherein letters testamentary were issued
to Mercantile Trust Company of San Francisco, a corpora-
tion, which thereupon qualified as executor and ever since
has acted and now is acting in that capacity. The jurisdic-
tional facts being established, Alice Skae, as heir at law, asks
that certain property described in her petition be distributed
to her.
The executor resists this application and avers that the
property described was disposed of by testatrix in and by
her will, admitted to probate as aforesaid, which made a
complete distribution of all her property in trust as follows:
To the said Mercantile Trust Company of San Francisco in
trust to receive the rents, income and profits thereof, and
to pay therefrom the proper and necessary expenses of
managing and caring for said property and of putting and
keeping in repair the burial vault owned by said deceased
in the cemetery at Oakland and a proper compensation for
its services as trustee and to apply the balance of such rents,
income and profits to the use of said Alice W. Skae, during
her natural life, with authority in said trustee to sell, at
public or private sale, the whole or any part of the real es-
tate of the decedent and the proceeds to invest for the pur-
poses of said trust; also to lease the real estate and mort-
gage the same to secure any loan required to pay an exist-
ing mortgage thereon or to rebuild or improve the buildings
thereon; and after the decease of the said daughter, Alice
V
408 Coffey's Probate Decisions, Vol. 1.
Warren Skae, the decedent testatrix directed the said trus-
tee to pay out of the principal of said trust fund the sum of
$50,000 to the lawful husband of said daughter, who should
survive, if any, and to distribute the remainder among her
children, who should survive her, if any, it being understood
that the issue of a deceased child should take together the
share per stirpes which such child would have taken, if he or
she had survived said daughter of testatrix ; and in case said
Alice "Warren Skae should leave no issue, then the testatrix
directed that the trustee should out of the trust property
which would have gone to such issue, if any had survived,
pay certain gifts to and for certain persons and purposes
and then to divide the remainder among indicated individ-
uals.
In order to arrive at the intention of the testatrix it may
be better to reproduce here the language of the will, for the
rule is, as stated by our supreme court, to ascertain the
meaning of the writer by the terms he employs to signify
his purpose. It is not, what did he mean? but, what do his
words mean ? Estate of Fair, 132 Cal. 546, 84 Am. St. Rep.
70, 60 Pac. 442, 64 Pac. 1000.
The first item of the will need not be rendered literally,
as it was revoked by the codicil ; but the subsequent para-
graphs will be better understood if given in their exact
phrase than by abstract or synopsis. These items are as fol-
lows, in their order:
Item — "I give, devise and bequeath all the rest, residue
and remainder of my property and estate, real and personal,
of which I may die seized or possessed, or to which I may
be in any wise entitled at the time of my decease, unto the
Mercantile Trust Company of San Francisco, California, in
trust, to receive the rents, income and profits, thereof, and
to pay therefrom the proper and necessary expenses of
managing and caring for said property and a proper com-
pensation for its services of Trustee, and to apply the bal-
ance of such rents, income and profits to the use of my
daughter Alice Warren Skae during her natural life.
"I authorize and empower the said Trustee to sell at pub-
lic or private sale, the whole or part of my real estate and
the proceeds to invest for the purposes of said trust. Also
Estate of Skae. 409
to lease my real estate and to mortgage the same to secure
any loan which may be reasonably required to pay off an
existing mortgage thereon, or to rebuild and improve the
buildings thereon.
"After the decease of my daughter Alice Warren Skae,
I direct that said Trustee pay out of the principal of said
Trust Fund, the sum of Fifty thousand dollars to the law-
ful husband of said Alice Warren Skae, who shall survive
her, if any, and to distribute the remainder of said Trust
property among the children of said Alice Warren Skae,
who shall survive her, if any, it being understood that the
issue of a deceased child of said Alice Warren Skae shall
together take the share per stirpes which said deceased child
would have taken, if he or she had survived said Alice War-
ren Skae."
Item — "In case my daughter Alice Warren Skae shall
leave no issue of her body her surviving, then I direct that
the said Trustee shall out of the said Trust property which
would have gone to such issue, if any had survived, pay the fol-
lowing gifts, viz": (Naming persons and objects.)
Item — "After all the preceding gifts shall be fully paid
so far as may be lawful or possible, I direct the said Trus-
tee to divide all the residue which shall then remain of said
Trust property (including all gifts that may lapse, and the
sum given in trust for Mary Skae, after the termination of
said trust) unto and among the following named persons,
viz " : .( Naming them. )
The property of this estate, according to the inventory and
appraisement filed June 30, 1904, was in personalty valued
at .$31,427.87 and in land $150,000, with improvements there-
on $50,000. So far as this discussion is concerned, the ac-
tual status of the property at this date may be considered
as realty, amounting in value to $200,000.
In support of the application for partial distribution, it
is conceded that the trust to receive the rents, income and
profits and to apply the same to the use of the daughter
during her natural life is valid unless it fail by reason of
the invalidity of the other trusts, which are claimed to be
repugnant to the statute. The trust for the husband is
assailed as clearly void under section 857 of the Civil Code,
410 Coffey's Probate Decisions, Vol. 1.
and not authorized by any of its subdivisions. Subdivision
1 provides for a trust to sell real property and apply or
dispose of the proceeds in accordance with the instrument
creating the trust. It is argued that in this case there is
not only no direction that the real estate be sold and the
$50,000 paid out of the proceeds, but the will contains no
imperative direction whatever that the real estate be sold,
and a trust under this subdivision must be imperative and
mandatory and not left to the discretion of the trustee, and
if so left, it is not a trust under this statute.
The second subdivision of this section relates to trusts to
mortgage or lease real property and the clause concerning
the husband is not within its purview.
The third subdivision relates to trusts to receive the rents
and profits of real property and apply them to the use of
certain persons. This provision covers the trust for the
benefit of the daughter, but does not seem to have any bear-
ing upon the clause for the possible surviving husband as
that is not to receive rents and profits and apply the same
to his use but is a trust to pay him a certain sum out of the
principal.
The fourth subdivision provides for a trust to receive the
rents and profits of real property and to accumulate the
same for certain purposes, and has no application to the
husband trust.
If section 857 of the Civil Code be depended upon to
support the fifty thousand dollar clause, it would seem as
if that trust provision is void.
Following the clause providing for the husband is the di-
rection to the trustee "to distribute the remainder of said
trust property among the children of said Alice Warren
Skae," and it is maintained, on her behalf, that this is a
trust to convey real property and is, therefore, void under
the authorities, since the property would not vest in the
children on the death of the mother, and it would be neces-
sary, under this trust, for the trustee to convey the land to
them and such an act is inhibited by law. The only trusts
of real property are those stated in section 857 of the Civil
Code, which contains no alll^sion to trusts "to distribute."
Estate of Skae. 411
If this provision is to be construed as a trust to convey,
it seems to be the settled law of this state that it is invalid,
and it is insisted on behalf of the daughter that the words
"to distribute," as used in the will, are the equivalent of
"to convey"; for, it is said, they certainly contemplate that
the trustee upon her death shall execute a conveyance of
the remainder of the trust property to each one of the chil-
dren then living and the issue of any deceased children; for
it was evidently contemplated that there might be a number
of persons who would be entitled to the trust property at
the death of the daughter and the testatrix directs the trus-
tee to distribute the property in proper proportions to each
one of such persons and it is not easy to conceive of any
method of carrying out this direction except by the execu-
tion of a conveyance.
Section 864 of the Civil Code provides that the author of
a trust may prescribe to whom the property shall belong on
the termination of the trust, but it is contended that there
is no such prescription when there is a plain direction to the
trustee as in this case.
It is admitted that the intent of the testatrix is evident,
but the courts of last resort have ruled that this intention
is immaterial unless the disposition be valid. If the trustee
could "distribute" by one mode only, and real estate must
pass by conveyance alone, and if we treat this trust in that
class, the disposition is void. It is asserted on authority
that the will containing no words of direct devise, which are
essential, a conveyance to the children from the trustee
would be indispensable to transfer title.
The trustee submits three reasons why the application of
the daughter should be denied and the will in its integrity
be sustained :
1. The court should strive to sustain rather than over-
throw the will; it should be industrious to carry out rather
than defeat the plain purposes of the testatrix, and to pre-
vent rather than create intestacy.
2. There is no trust to convey in this will.
3. The authority given to the trustee to sell the real es-
tate, coupled with the other provisions of the will showing
the intention of the testatrix that the property should be
412 Coffey's Probate Decisions, Vol. 1.
distributed as personal property rather than real estate, is
sufficient to create an equitable conversion.
In support of the third reason or proposition the trustee
relies upon the Estate of Pforr decided by our supreme
court, California Decisions, volume 28, No. 1509, page 105,
opinion written by Commissioner Harrison (144 Cal. 121,
77 Pac. 825), which it is claimed has become the law of the
state and is the latest expression of the court itself upon
the important questions therein discussed. In that case the
testator desired and directed the executors to take charge of
the property, to collect its rents and income, defray expenses,
renew mortgages, and execute new ones when necessary for
a term of two years from the date of his demise, and then
he desired them to have the property sold at public auction
or otherwise and to divide the net proceeds into six equal
parts and distribute the same among his heirs and devisees
as therein set forth.
The commissioner held that the provision for the sale of
the property and the distribution of its proceeds among the
six beneficiaries operated as an equitable conversion of the
real estate into personalty, under section 1338 of the Civil
Code, which provides that when a will directs the conversion
of real property into money, such property and all its pro-
ceeds must be deemed personal property from the time of
testator's death; and this result is not overcome by reason
of the testator having used the word "desire" instead of
''direct" in authorizing the sale, for the w^ords "I desire"
that my real estate shall be sold are the equivalent of the
words "I will" that it be sold, as while the desire of a tes-
tator for the disposal of his estate is a mere request when
addressed to his devisee, it is to be construed as a command
when given to his executor. The commissioner further held
that whether such a conversion is effected depends upon the
intention of the testator as gathered from the entire provi-
sions of his will ; and, if it is apparent from its terms that
it was his will that the estate be sold and the proceeds given
to his beneficiaries an equitable conversion results, even if
the direction for the sale is not imperative, citing a New
York case. Dodge v. Pond, 23 N. Y. 69, in support of this
Estate of Skae. 413
point, and adding, from a New Jersey opinion, that the ques-
tion of conversion is one of intention, the real question be-
ing. Did the testator intend his land should be converted into
money at all events before distribution! Wurts v. Page, 19
N. J. Eq. 375. The applicant admits that the words "at all
events" in this quotation state the law correctly, in the sense
that the direction, whether express or implied, must be man-
datory, but as to the part of his opinion given upon the au-
thority of Dodge V. Pond, counsel says that the language of
the learned commissioner is based on a syllabus not corre-
sponding to the text. As this case is considered of author-
itative importance, it may be worth while to compare the
syllabus, page 69, with the terms of the opinion on page 76
of the report. The syllabus is: "Where a testator author-
izes his executors to sell real estate, and it is apparent from
the general provisions of the will that he intended such es-
tate to be sold, the doctrine of equitable conversion ap-
plies, although the power of sale is not in terms imperative."
Judge Selden, in delivering the decision said: "It is, per-
haps, not very important, so far as the questions argued at
the hearing are concerned, to determine whether the power
of sale conferred upon the executors by the first clause of
the will is to be regarded as imperative, or merely discre-
tionary, or whether we treat the property as partly real and
partly personal, as at the death of the testator, or as all con-
verted into personalty. If, however, it is deemed to have
any bearing on the questions presented, there can be no
doubt, from the terms of the power and the general provi-
sions of the will, that the testator intended that the whole
real estate, except that portion devised to the widow, should
be sold and converted into mone^', prior to the general dis-
tribution provided for in the twentieth clause, and that,
upon the established principles of equitable conversion, this
should be considered as done." The first clause of the will
authorized and empowered the executors to sell and convert
into money all the testator's estate, real and personal (ex-
cept that given to his wife), either at public or private sale,
and upon sucli terms as they might think conducive to the
interests of his estate. Counsel for the daughter discredits
414 Coffey's Probate Decisions, Vol. 1.
this decision and asserts that it is not authority even in New
York, and is not followed there by any one of the leading
cases, to which his adversary answers that it has been fre-
quently approved in that and other states, and that none
of the cases cited in any way modify or overrule the doctrine
therein enunciated, and in that connection calls the atten-
tion of the court to Power v. Cassidy, 79 N. Y. 602, 35 Am.
JR-ep. 550, particularly pages 613 and 614 of the opinion of
Miller, J. It may be said, by the way, that the syllabus on
page 603 is in words almost identical with that in Dodge
V. Pond, supra. Judge Miller held that the court below was
clearly right in deciding that bj^ the terms of the will there
v/as an equitable conversion of all the testator's real estate
into personalty. The whole scope and tenor of the will
evinces that the testator intended such a conversion and that
the estate should be divided as personal estate. The doc-
trine of equitable conversion is quite familiar and the rule
on the subject well settled. It is obvious upon the face of
the will that the testator intended that such conversion should
be made. The executors are vested with full power and au-
thority to sell as they may deem proper, and after making
ample provisions for the wife of testator and directing the
payment of certain legacies, the residue is to be divided : one-
third to the widow, one-third to a nephew, and the "bal-
ance" among a class of institutions to be designated and in
proportions to be fixed as directed. The language could not
have been more emphatic, said Judge Miller, nor more di-
rect to carry out the design of a division of the remainder
as personal estate. The estate could only be effectually di-
vided, and the purposes of the will efficiently carried out,
by converting the real into personal property ; and the .judge
proceeds to point out what, in his judgment, would be the
impropriety and embarrassment and possible loss attendant
upon a contrary construction which would necessarily inter-
fere with the designs and purposes which the testator had
in mind when he made his will, and would, moreover, be ad-
verse to the general rule of interpretation which is applicable
in cases of this description. Judge Miller concluded his de-
cision on this head by remarking that the circumstance that
Estate of Skae. 415
the direction to sell was not imperative, was by no means
conclusive, for the reasons already recited in the syllabus in
Dodge V. Pond, supra, which he cites and repeats in the ex-
act words found on page 69. It appears in this instance,
at least, that the syllabus does correspond to the text; but
counsel for the daughter says that the Pforr case does not
uphold the executor's contention that there is in the will of
Mrs. Skae an implied direction to convert sufficient to effect
a conversion of her real estate into personal property. In
Pforr 's estate the direction to the executor to sell was man-
datory and imperative ; nothing was left to the discretion
of the executor except the manner of sale ; the sale had to
be made in any event ; and this worked a conversion, accord-
ing to counsel, under the rule laid down in the leading Cali-
fornia cases, but has no bearing on a case where the equi-
table conversion is effected by implied direction. An ex-
amination of the record in the Estate of Pforr shows that no
point had been raised as to equitable conversion in either
trial or appellate court ; but the learned commissioner, never-
theless, held that the express and mandatory directions in
the will caused a conversion; that is to say, he imported a
new question into the controversy which was not referred
to by counsel in the argument nor considered by the court
below nor in any manner alluded to in the briefs or tran-
script on appeal. In that case, however, although the atten-
tion of the court was called in the petition for rehearing
to the fact that the doctrine of equitable conversion was not
relied upon or mentioned by the parties or their counsel, the
application was denied and thus the executor considers the
discussion of the value of the decision is at an end, and it
is binding on this court in this case. In the Pforr estate
the commissioner quoted from Pomeroy's Equity Jurispru-
dence, but inasmuch as an erroneous deduction is imputed
to him, it may be well to consider the text of the entire sec-
tion of which his quotation forms the last two sentences.
Professor Pomeroy says in section 1160, in treating of what
words are sufficient to effect a conversion, that the whole
scope and meaning of the fundamental principle underlying
the doctrine are involved in the existence of a duty resting
416 Coffey's Probate Decisions, Vol. 1.
upon the trustee to do the specified act; for unless the equi-
table ought exists, there is no reason for the operation of
the maxim, equity regards that as done which ought to be
done. The rule is therefore firmly settled, that in order to
work a conversion while the property is yet actually un-
changed in form, there must be a clear and imperative di-
rection in the will to convert the property — that is, to sell
the land for money, or to lay out the money in the purchase
of land. If the act of converting is left to the option, dis-
cretion, or choice of the trustee, then no equitable conver-
sion will take place, because no duty to make the change
rests upon him. It is not essential, however, that the di-
rection should be express, in order to be imperative; it may
be necessarily implied. Where a power to convert is given
without words of command, so that there is an appearance
of discretion, if the trusts or limitations are of a descrip-
tion exclusively applicable to one species of property, this
circumstance is sufficient to outweigh the appearance of an
option, and to render the whole imperative. Thus if a power
is given to lay out money in land, but the limitations ex-
pressed are applicable only to land, this will show an in-
tention that the money should be so laid out, and will amount
to an imperative direction to convert, for otherwise the terms
of the instrument could not be carried into effect. In fact,
the whole result depends upon the intention. If by express
language, or by a reasonable construction of all its terms,
the instrument shows an intention that the original form of
the property shall be changed, then a conversion takes place.
In the New Jersey case, Wurts v. Page, from which Com-
missioner Harrison made a short quotation in the Pforr es-
tate, the chancellor said that the doctrine of equitable or
notional conversion is well established, the difficulty being
in its application. Wherever a testator has positively di-
rected his real estate to be sold and distributed as money,
it will be considered for the purposes of succession as per-
sonal; but in that case there was no such direction. The
direction to sell simply authorized and empowered his execu-
tors to sell any part of his real estate in case they should
at any time deem it advisable. The court held that this was
Estate of Skae. 417
not a direction to convert, but, on the contrary, a seeming
direction to let it remain as real estate, until it became ad-
visable from time to time to sell it; and the chancellor said
if this were the only part of the will to guide him, the real
property could not be considered as converted until actually
sold ; but the question of conversion is one of intention ; the
real point is, Did the testator intend his lands to be con-
verted into money at all events before the distribution ? In
the Wurts case, it seemed to the chancellor that the direc-
tions in other parts of the will show clearly that he did so
intend. The spirit of the whole directions showed that con-
version was intended. All the directions showed that the
testator intended that his estate should be converted into
money before it was distributed by his trustees, and they
would be required to convert it into money before distribu-
tion and to pay it over in that form ; and the rule is well
settled that if the will requires the real estate to be converted
into money at all events, notwithstanding the executors may
have a discretion as to the time, it must be considered as
'Converted into money from the death of the testator. One
of the directions was that the portions of his sons and his
grandson were to be paid to them upon their arriving re-
spectively at the age of twenty-two years.
In connection with these authorities, it is argued by the n
respondent in the case at bar that the duty to convert re-
sults from the duty of the trustee to carry out the provisions
of the will; and it is claimed that the decisions abundantly
establish the doctrine that where there is an authority to
sell and the language of the entire instrument shows that
it was the intention of the testatrix that the bequests should
be paid in personal property rather than in real estate, the
duty results to convert real estate into personal property.
The words used by her indicate the purpose of testatrix to
have the entire property distributed as personal rather than
transferred as real estate. The testatrix throughout uses
the words "pay" and "paid," the idea of which necessarily
involves liquidation in money or personal equivalent. She
provides that the trustee shall "pay" out of the principal of
said trust fund $50,000 to the surviving husband and "dis-
Prob. Dec, Vol. I — 27
418 Coffey's Probate Decisions, Vol. 1.
tribute the remainder of said trust property among the chil-
dren," if any, of her daughter. In case her daughter die
leaving no issue, the trustee shall "pay" out of the trust
property which would have gone to such issue certain "gifts,"
and after all these gifts shall be fully "paid" the trustee is
directed to "divide" the residue. If it had been the inten-
tion of the testatrix that the property should go in kind to
the children, the apt words would have been "transfer and
convey, ' ' and it would have been the plain duty of the drafts-
man of the document to have used such phrase, if that had
been the idea communicated to him as the direction of de-
cedent. If this contention be correct, there is no trust to
convey in the will of Alice Skae. In this view of the case,
it does not seem possible to carry out all the terms of the
testament without a sale of at least a portion of the real
estate; but, the trustee contends that even if it were possible
to do so in a certain contingency, such possibility should not
be seized upon as a reason for overthrowing the manifest
intention of the testatrix as collected from the entire instru-
ment. The scheme of the will evinces a far-reaching purpose
to provide for every contingency that might possibly arise.
After the provision for the daughter during her lifetime,
she establishes a fund the result of an investment of the pro-
ceeds of sale of the w^hole or any part of her estate, which
she authorized and empowered them to make, and out of those
proceeds are to be "paid," "distributed," and "divided,"
in the contingencies mentioned, her various bounties and bene-
factions. This comes close to the Wurts case cited in the
Pforr estate, wherein the chancellor remarked upon the
direction to invest as iinplying a sale of the real estate.
Counsel for the daughter disputes the authority of the
Pforr estate, declaring that its dicta are at variance with
the decisions of our supreme court in important cases, which
announced the fundamental principles of the law after
thorough consideration and deliberation, the first cited being
Janes v. Throckmorton, 57 Cal. 368, decided in 1881, a case
of magnitude as to the interests and principles involved, in
which, it is claimed, the rule is established that in order to
work a conversion it must be obligatory on the trustee to-
Estate of Skae. . 419
sell the land in any event, and it was held there was no
conversion because the deed was not imperative that the land
be sold. The case involved the construction of a covenant
in the nature of a declaration of trust. The statement of the
question made by counsel for the trustee herein seems to be
substantially correct. The covenant provided that Throck-
morton should sell so much of the real estate as he might
deem necessary to pay off certain debts and encumbrances,
and that he should account and pay over to two persons
named the one-fifth part of the moneys reniaining after pay-
ing the indebtedness and expenses ; that the said Throckmor-
ton should sell all of the lands within three years of the
date, or at his option convey the undivided one-fifth part
of all lands remaining unsold, after the discharge of the
debts and expenses, to those persons, and the question before
the court was as to the character of their interest under this
covenant. It was held to be an interest in the lands. The
action was brought to enforce an alleged trust in favor of
plaintiff against defendant in the one-fifth part of all money
proceeds of sales of the lands and an undivided one-fifth
part of all the lands remaining unsold. Among other de-
fenses, one was that the covenant was a personal one purely,
providing for no interest in real estate, and that no trust
respecting the lands thereby arose. In discussing this de-
fense, the court reviewed cases upon equitable conversion,
among them Dodge v. Pond, but expressed no dissent from
the conclusion of that decision ; and, indeed, it had no need
to consider that phase of the doctrine, which is to the effect
that where the power to sell is discretionary, but it appears
from a consideration of all the terms of the instrument that
it was the intention of the donor that the property should be
sold before distribution an equitable conversion would result.
The court repeated the rule from 2 Story's Equity Juris-
prudence, section 1214. tlint the inclination of courts of equity
upon this branch of jurisprudence is not generally to change
the quality of the property, unless there is some el(>;ir iiit(Mi-
tion or act by which a definite character, either as inoney
or as land, has been unequivocally fixed upon it tliroughout ;
and, if this intention do not clearly appear, tlie property
420 Coffey's Probate Decisions, Vol. 1.
retains its original character. As counsel for the daughter,
remarks, this is an authority of the greatest weight and is
either alluded to or quoted in nearly every American decision
on its subject. In the case in 57 California, the court said
that the most that could be claimed was, that Throckmorton
had the discretion to sell all of the land; but so far from
its being obligatory upon him to do so, it was manifestly
contemplated that a portion of it might be saved from sale.
The Estate of Walkerly, 108 Cal. 627, 49 Am. St. Rep. 97,
41 Pac. 772, decided in 1895, by the full court, is claimed
to be a similar case in which the question here discussed was
fully argued and considered and the law laid down with
precision, in these terms : ' ' The rule of equitable conversion
merely amounts to this, that where there is a mandate to sell
at a future time, equity, upon the principle of regarding that
done which ought to be done, will for certain purposes and
in aid of justice consider the conversion as effected at the
time when the sale ought to take place, whether the land be
then really sold or not; but whenever the direction is for a
future sale, up to the time fixed it is governed by the law of
real estate." This extract is quoted with approval in Bank
of Ukiah v. Rice, 143 Cal. 270, 101 Am. St. Rep. 118, 76 Pac.
1020, which says that it clearly expresses the doctrine that
there can be no conversion until the executor shall have
the power to make the sale. The opinion in the Bank of
Ukiah V. Rice was written by Commissioner Harrison, May,
1904, and confirmed by department 2 of the supreme court,
and counsel for the daughter insists that it firmly establishes
the law on this point in this state. In the Ukiah case the com-
missioner said that if the will postpones the time of sale
until the happening of some future event or until some fixed
date, the conversion is likewise postponed. In the case at
bar, it is claimed by the daughter that there is not only no
mandate to sell, but the beneficiaries could, at any time before
an actual sale, elect to take the land, instead of its proceeds,
and thus extinguish the authority of the trustee to make
a sale. This proposition is advanced on the authority of
the Bank of Ukiah v. Rice, page 271, of 143 Cal, but is
answered by the suggestion that it is difficult to conceive
Estate of Skae. 421
that the beneficiaries in this case would exercise an elec-
tion to take the land instead of its proceeds when such
an act would defeat their right to take at all, even if it were
true that the property could be distributed in kind by the
trustee without violating any of the testamentary provisions.
In the Estate of Walkerly it seemed to be claimed that the
equitable conversion took place at the death of the testator.
The will contained an imperative direction to the trustees
to sell and convey all the trust estate at the expiration of
twentv-five years from the date of the death of the testator.
The court held that this clause unlawfully suspended the
power of alienation, and was therefore void, remarking that
the doctrine of equitable conversion could not be invoked
to aid that trust. The counsel in that case had urged that
under that doctrine the land should be treated as sold and
converted into personal property, and that such a trust in
personal property would be valid, and that, therefore, the
Walkerly trust must be upheld; but the court observed that
would not only be a surprising application of the doc-
trine, but would be a novel and startling method of evading
the law against perpetuities by invoking an equitable fiction ;
and then the court proceeded to explain the rule in the
language already quoted, ending with the sentence : ' ' But
whenever the direction is for a future sale, up to the time
fixed the land is governed by the law of real estate. ' ' In the
matter of the will of Alice Skae, there is no fixed period
during which the property must be retained as real estate.
Tt is claimed by the trustees that this is the precise condition
which calls for the application of the doctrine as defined in
the Walkerly case, in which, it may be repeated, it was held
that where the will provided that the property should not
be converted for a determinate period an equitable convei'sion
could not be raised prior to the point of time prescribed;
and, it is argued, that in the numerous cases of the con-
struction of wills in which the doctrine of equitable conver-
sion has been applied there was no positive direction for a
sale and there was no particular time within which a sale
was required to be made, but the courts have held that all
that is necessary is to put the doctrine into operation is an
422 Coffey's Probate Decisions, Vol. 1.
intention implied from the whole instrument that the sale
should be made at some time before the ultimate distribution,
and, if such an intention appears, the conversion will be
deemed to have been made at the death of the testator. Pom-
eroy says, concerning the time from which conversion takes
effect, that this, like all other questions of intention, must
ultimately depend upon the provisions of the particular
instrument. The instrument might in express terms contain
an absolute direction to sell or to purchase at some specified
future time; and if it created a trust to sell upon the hap-
pening of a specified event, which might or mighlrnot happen,
then the conversion would only take place from the time of
the happening of that event, but would occur when the event
happened as though there had been an absolute direction to
sell at that time. Subject to this general modification, the
rule is settled that a conversion takes place in wills as from
the death of the testator. The same commissioner who wrote
the opinion in the Bank of Ukiah case in May, 1903, exactly
two months later delivered the decision in the Pforr estate,
July, 1904. The later expression of his views is hardly to be
presumed inconsistent with the earlier, and both may be
reconciled with the matter of Walkerly, so far as they are
made applicable to the case at bar. The fact is, however, that
after all our examination of cases and authorities, we receive
but little assistance in reaching a conclusion in the matter in
hand, except (as has been said repeatedly by courts) for
the establishment of general principles in the construction
of wills ; for it seldom or never happens that two cases can
be found precisely alike: Le Breton v. Cook. 107 Cal. 416,
40 Pac. 552, quoting Washington, J., in Lambert's Lessee
V. Paine, 3 Cranch, 131, 2 L. Ed. 389, decided in 1803. As it
was one hundred years ago, so it is to-day. Each case must
be considered as a whole with reference to the object of the
testator. The general principles are evident enough; the
difficulty is, as remarked by our supreme court, in their
application to a given case. The end of the inquiry of the
court is the discovery of the intent of the testator, and its
investigation must be limited to the language of the testa-
ment. When that end is attained, the duty of the court is
Estate of SkxVe. 423
to execute that intent. It may be that the result of the
judicial inquiry may be contrary to the real design of the
decedent, but the intention to be sought after is not that
merely which existed in the mind, but that which took form
in the written words of the testator ; and if those words admit
of no other construction than one which clearly shows that
she attempted to dispose of her property in a manner for-
bidden by statute, the intention of the testatrix should be
interpreted in defeasance of her purpose. This may seem
a harsh result, as was said in the Walkerly case, to interpret
an instrument contrary to the will of the testator; but if
the intent be expressed in terms at variance with the law,
the trust must fail; for, even though it be true that such
was not the testator's intent, he must do more than merely
evince an intention in a certain direction, he must make a
valid disposition of his property. It is always with reluctance
that courts declare a will or a provision thereof void, and in
all cases they endeavor to carry out the intentions of a
deceased person, as expressed in the will, if it can be done
without disregarding the law and the statutes of the state;
and they would violate their duty and the trust reposed in
them if they should disregard the law enacted by the legis-
lature and its mandates to carry into effect a will in violation
thereof: Estate Dixon, opinion by Commissioner Cooper, de-
partment two, supreme court, June 10, 1904, 143 Cal. 511,
77 Pac. 412.
Is this court, in considering and construing the will of
Alice Skae, deceased, placed in the predicament described in
which, it is confessed, the natural and true intention of the
testatrix was made to yield to legal interpretation of her
language ; for it is admitted here that tlie intent of the
testatrix is evident, but that such intent is to be nullified
by judicial construction of her words. At the risk of repeti-
tion there may be introduced here from Beach on Modern
Equity Jurisprudence, what counsel for the daughter in the
case at bar says is a statement of the doctrine under dis-
cussion which declares the rule in the most clear and con-
cise terms. p]quitable conversion, remarks Beach, may take
place by implication as well as by express words. When-
424 Coffey's Probate Decisions, Vol. 1.
ever the general scheme of the will requires a conversion,
the power of sale, although not in terms imperative, oper-
ates as a conversion. The necessity of a conversion to ac-
complish the purposes expressed in a will is equivalent to
an imperative direction to convert. But the provisions of
the will must, at least, be of suoh a character as to leave no
doubt of the testator's intent that there should be a con-
version. In a late case in New York (1892) it was said that
to justify a conversion there must be a positive direction
to convert, which though not expressed may be implied, but,
in the latter case, only when the design and purpose of the
testator is unequivocal and the implication so plain as to
leave no substantial doubt : Clift v. Moses, 116 N. Y. 157, 22
N. E. 393. Where only a power of sale is given, without
explicit and imperative directions for its exercise, and the
intention of the testator can be carried out without a con-
version, none will be ad,iudged; and where there are no ex-
press directions for a conversion none will result because it
would be convenient as an aid to the distribution of the
estate; it must be necessary and essential. In support of
this text is cited, among many other cases, Power v. Cassidy,
heretofore considered in this opinion.
As recognizing and tending to illustrate the doctrine and
its application contended for by the trustee herein, he calls
particularly the attention of the court to the decision in
King V. King, 13 R. I. 510, in which it was said that the
equitable conversion of a testator's realty into personalty
depends, as to both extent and existence, upon his intention
judicially determined from his will. In that case it was
not contended that the clause under construction contained
any direction expressly given that the real estate should be
converted at all events. The language was permissive, not
mandatory; it conferred an authority, but did not, at least
in express terms, issue a command ; indeed, the authority was
not unqualifiedly given. The trustees were empowered to sell
and convey and change investments, not arbitrarily or ab-
solutely, but "as they may deem to be for the interest of
the said trust," "or to the advantage of the said trust," or
"when the sale of any of said estate may be necessary for
the payment of any legacy hereunder." The court said
' Estate of SkxVe. 425
that this was not such language as would naturally have
been used if an out and out conversion had been intended,
but it thought, however, that the specific legacies were in-
tended to be paid in money, and that, therefore, for lack of
personal estate to pay them, there would have been neces-
sarily implied a direction, operating pro tanto as a conver-
sion, to sell enough of the real estate to pay them; but there
was in the same clause a significant provision, which in it-
self was consistent with conversion at all events, that the
legatees might take the real estate in payment at a valuation
in lieu of money, and in addition there was no lack of per-
sonalty.
In the case at bar there is next to no personal property,
and there is no provision contemplating an election of land
in lieu of money in the instrument^ The dominant idea of
the testatrix seems to have been to bestow her benefactions
in money, and the terms employed by her leave no room for
doubt of her intention. Now, is that intention to be defeated
by imputing to her words a meaning foreign to her manifest
and persistent purpose? Can this court, without distorting
her diction, destroy her will and produce intestacy where it
is clear she intended to dispose of every particle of her
property in pursuance of an intelligent design in a well
wrought out scheme? Is not the exercise of the power of
sale rendered necessary and essential by the scope of the
will and its declared purposes; and is there not here an
implied direction to convert, by reason of the unequivocal
manner in which the designs and purposes of the testatrix
are expressed, making the implication so strong as to leave
no substantial doubt? Is not the direction necessarily im-
plied? In order to answer accurately these questions, we
must consider carefully the whole scheme of the will and
weigh the words of the testatrix with the facts and cir-
cumstances of the case. At the time of her death she had,
in round numbers, about $30,000 in cash, no other person-
alty of consequence; one parcel of real estate, 120x206.3.
part of Western Addition block, on Larkin street, fronting
from Fulton street to Birch avenue, valued at $150,000,
with improvements thereon appraised at $50,000.
/
.426 Coffey's Probate Decisions, Vol. 1.
The personalty would have been virtually consumed by
the first bequest, if it had not been changed by the codicil;
but, notwithstanding the revocation, it exhibited the inten-
tion of the testatrix at the time she executed the will. It
provided for the discharge of debts and funeral expenses,
and as part of the latter directed the demolition of the
burial vault wherein lay the remains of her husband and
two deceased children and the erection of a new vault at a
cost of from twenty to twenty-five thousand dollars. After
this the testatrix had practically only real property to deal
with, so far as the actual present species was concerned; but
she used the technical expressions appropriate to carry both
real and personal, "give, devise and bequeath," thus imply-
ing her knowledge of the legal force and effect of the differ-
ent testamentary words and the import of the distinct ideas
so represented. She then authorized and empowered the
trustee to sell the real estate, and then follows the clause
which furnishes the bone of contention in this case. Giv-
ing all due weight to the argument of counsel for the daugh-
ter, this court cannot accept his conclusion without, in its
judgment, doing violence to the intention of the testatrix.
Taking the words in their logical and actual relation, they
indicate a connection in her mind between the idea of a
sale and the distribution of the proceeds thereof. The en-
tire context admits of no other interpretation. The sale
produces the fund and the funds to be distributed in dollars,
cash payments. Testatrix then provides, for the event of
the death of the daughter without issue, all hioney bequests,
"gifts" to be paid, in cash, so many dollars to each donee.
Without a sale of real estate, these legacies could not be
paid; conversion is necessary to their satisfaction. Finally,
testatrix directs that after all of these gifts shall be fully
paid, the trustee shall divide all the residue which shall then
remain of said trust property (including all gifts that may
lapse, and the sum given in trust for ]\Iary Skae, after the
termination of said trust), unto and among six persons,
Qames and addresses given. A partition of the property
can hardly be ascribed to testatrix under this item. The re-
marks of the New York court of appeals in Power v. Cas-
sidy, supra, page 614, are here somewhat in point. The
Estate op Skae. 427
evidence in the ease at bar shows that a partition of the
real estate into six pieces, with the structures thereon as
they were at her death and are now would be impracticable,
and, even if there were no improvements, such a course
might seriously diminish the value of the property, and
lessen the avails to be distributed. The words used in this
clause, moreover, apply to gpal rather than to personal prop-
erty; no one word being exclusively pertinent to realty, some
never so applied, and all pointing to a disposition of per-
sonalty.
Taking the instrument in its entire form and substance,
letter and spirit, construing and interpreting its language
in the light of reason and authority, this court is of opinion
that the whole scope and tenor of the will imports an equi-
table conversion; and, thus the application for partial dis-
tribution must be and is denied.
Eciuitable Conversion is that change in property by which, for cer-
tain purposes, real estate is considered as personal, and personal as
real: Haward v. Peavey, 128 111. 430, 15 Am. St. Eep. 120, 21 N. E.
503, note in 5 Am. St. Eep. 141. Whether such a result is worked
by a will depends upon the intention of the testator. If it is ap-
parent from the express terms of the instrument, or by necessary
implication, that he intended his real estate to be sold and the pro-
ceeds given his beneficiaries, an equitable conversion results, al-
though perhaps the direction to sell is not imperative, as where
the word "desire" instead of "direct" is addressed to the exec-
utors: Estate of Pforr, 144 Cal. 121, 77 Pac. 825. "Where the will
directs the sale of real estate expressly, or by clear implication, or
where a sale is absolutely necessary to the execution of the provisions
of the will, such real estate is equitably converted into personalty
from the time of the testator's death": Penfield v. Tower, 1 N. D.
216, 46 N. W. 413. But see Estate of Lahiflf, 86 Cal. 153, 24 Pac. 850.
428 Coffey's Probate Decisions, Vol. 1.
Estate of JOHN FAY, Deceased.
[No. 26,323; decided March 12, 1902.]
An Olographic Will Which by Mistake Bears a Date at least twenty-
eight years prior to the time of its execution should be denied
probate. [See note at end of opinion.^
Louis S. Beecly, for the proponents.
Bart Burke and Chas. J. Pence, for the contestants.
COFFEY, J. This is a proceeding for the probate of a
certain instrument alleged in the petition to be the last will
and testament of John Fay, deceased.
The proposed will is olographic in form, was entirely
written, dated, and signed by the hand of the testator him-
self. It bears date "May twenty-fifth eighteen hundred and
fifty-nine. ' '
This alleged will makes certain bequests and devises to
the surviving wife and children of the deceased, naming
them, and, among others, to a daughter, Mary Montealegre.
It appears that at the date of said will the said testator
was unmarried and none of his said children was yet born;
that Mary Montealegre, his daughter, was married on the
thirty-first day of January, 1887, to Charles F. Montealegre,
from whom she was divorced on the twenty-ninth day of
July 1890, and by the provisions of the decree of divorce
she was authorized to resume her maiden name of Mary
Fay. She died March 29, 1900, nearly two years prior to
the death of the testator, leaving her surviving no child or
children or lineal descendants. Luke Fay, the oldest son of
said deceased, was born February 28, 1861, nearly two years
subsequent to the date of said will.
It is apparent, therefore, that the will in question could
not have been executed earlier than January 31, 1887, the
date of the marriage of his daughter as aforesaid, and prob-
ably not later than the decree of divorce rendered July 29,
1890, when she resumed her maiden name, as it is not likely
that after such date the deceased would have named her in
his will as "Mary Montealegre."
Estate of Fay, 429
The question to be determined is, Was this instrument
duly executed as an olographic will?
This will bears a date at least twenty-eight years prior to
its execution. Does this comply with section 1277 of the
Civil Code? That section is as follows: "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. ' '
That a date is one of the requisites of an olographic will,
and that such date must be written by the testator himself
is the settled law of this state.
In Estate of Martin, 58 Cal. 530, there was no date to
the will, which was olographic, and it was held invalid, al-
though it contained a declaration that the testator was "of
the age of sixty years."
In Estate of Rand, 61 Cal. 468, 44 Am. Rep. 555 and in
Estate of Billings, 64 Cal. 427, 1 Pac. 701, it was held that
an olographic will in which the date was partly written and
partly printed was invalid.
In Estate of Behrens, 130 Cal. 416, 62 Pac. 603, it was
conceded that the olographic will in question in that case,
bearing date in the writing of the testator of "Febr. 12,
'98," was sufficiently dated under the code.
In Estate of Lakemeyer, 135 Cal. 28, 87 Am. St. Rep. 96,
66 Pac. 961, it was held that the words and figures, "New
York, Nov. 22, '97," used in an olographic will, constitute a
date, and that the will was sufficiently dated.
In no case reported in this state or elsewhere have I been
able to find the question involved in the case at bar decided.
Its solution, however, does not seem to me to be difficult. It
was evidently the intention of the legislature that an olo-
graphic will should not only be dated, but that it should
state the true date of the execution thereof. In Estate of
Martin. 58 Cal. 530, the court say:
"It is claimed that the dating of a will is a mere formal
matter, not absolutely necessary. We do not think so.
The legislature has seen fit to require three things to con-
cur, for the execution of an olographic will, viz.: That it be
written, dated, and signed by the hand of the testator. We
430 Coffey's Probate Decisions, Vol. 1.
are not at liberty to hold that the legislature intended any
one of these requirements to be of any greater or less im-
portance than the others. If we may omit one, why not
either of the others?
"The paper is not aided by the declaration contained in
it, of the age of sixty years. It does not appear in the
paper when he was of the age of sixty years. It may have
been one day before his decease; it may have been ten
years."
The language of the court above implies that the will
must not only be dated, but must bear the date of its execu-
tion; and this in reason ought to be so. The word "date"
is defined in the Universal Dictionary as follows: "1. The
formula appended to a letter, deed, etc., to denote the year,
month, and day when such letter or deed was signed or
executed." Webster defines the word "date" thus: "That
addition to a writing which specifies the year, month and
day when it was given or exercised."
There are several reasons why the correct date should be
stated in olographic wills. Some of them are noted in the
case of Succession of Robertson, 49 La. Ann. 868, 62 Am.
St. Rep. 672, 21 South. 586, as follows:
"The law enjoins the date on two grounds: The first, the
most essential, is in order that the precise date the testator
made a disposition of his property may be known, rendering
it possible to determine whether the testator had the capacity
of giving at the date the testament was made. The second
ground is secondary. If there are two testaments, it should
be manifest which is the last, in case of opposing or incom-
patible dispositions. ' '
In that case the date was partly written and partly
printed, and the proposed will therein was held invalid by
the court.
In Hefii'ner v. Hefi:ner, 48 La. Ann. 1088, 20 South. 281.
other reasons were noted. The will in that case closed as fol-
lows: "Written, dated and signed in my own handwriting.
on this day of June, 1893. William Heffner." The
court in that case used .the following language :
"When the code comes to prescribe the olographic testa-
ment, the notary, the witnesses and all forms of authentica-
Estate of Fay. 431
tion are dispensed with, and the requirement is that such
a will to have the validity must be wholly written, dated,
and signed by the hand of the testator. The policy of the
law to secure the true representation of the testator's wishes
and guard against fraudulent wills is marked in the requisite
of the testator's handwriting, including the expression of
the date when he writes the paper and affixes the signature
it bears. The date in the testator's handwriting is part of
the evidence the law requires of the verity of the instrument.
If the paper is forged, the date it must bear may furnish
the means of detection, on any issue of the sanity the dates
indicate and restrict the period of inquiry."
If the instrument in the case at bar were admitted to
probate as the last will of deceased, and within the time
allowed by law, a contest should be inaugurated in which
the mental capacity of the testator to make the same were
challenged, at what point in time would the court direct or
restrict the evidence to the point in issue'? The sanity of the
testator must appear at the time of the execution of the
will: In re Wilson, 117 Cal. 269, 49 Pac. 172, 711.
But no person living knows, so far as the court is in-
formed, when this will was executed. It was probably writ-
ten between January 31, 1887, the date of the marriage of
the daughter of the testator and July 29, 1890, the date
of her divorce, but it may have been executed at any time
after the former date and prior to the testator's death, which
occurred January 28, 1902. Thus the court in the event
of a contest would have to indulge in probabilities in fixing
an event that might have occurred at any time within the
period of fifteen years, or thereabouts.
In Ileft'ner v. Heffner 48 La. Ann. 1088, 20 South. 281,
the will must have been written within the month of June,
1893, yet the court declared it was not dated.
Again, there may have been another will, olographic or
otherwise, of this testator. Suppose one were found bearing
the subsequent date, yet executed prior to January 31. 1887.
This would in fact be a prior will, but should such a will
be admitted and produced, would it affect this will if ad-
mitted to probate bearing date as it does, "May twenty-fifth
eighteen hundred and fifty-nine"?
432 Coffey's Probate Decisions, Vol. 1.
There are many reasons, it may be urged, why the true
date of an olographic will should be stated; none whatever
for a wrong date. Suppose the date of this instrument
were A. D. 1000; this would be a technical compliance with
the law, but would it meet the legislative intent incorporated
in section 1277 of the code? Manifestly not. It would in
effect be no date at all. And so in the case at bar, where
almost thirty years must have intervened from the date of
the instrument and the actual time of its execution : Fuentes
et al. V. Gaines, 25 La. Ann. 85, 107.
In the case last cited it was sought to establish a lost
