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EEPORTS
OP
DECISIONS IN PROBATE
BY
JAMES V. COFFEY,
JUDGE OF THE SUPERIOE COURT,
IN AND FOR THE
CITY AND COUNTY OF SAN FRANCISCO, STATE OF
CALIFORNIA.
EEPORTED AND ANNOTATED BY
PETER V. ROSS and JEREMIAH V. COFFEY,
Of the San Francisco Bar.
VOLUME TWO.
SAN FRANCISCO:
BANCROFT-WHITNEY COMPANY,
Law Publishers and Law Booksellers.
1909.
5-
Copyright, 1909.
BY
JEREMIAH VINCENT COFFEY.
San Francisco:
The Filmeb Brothers Electrotype Company,
Typographers and Stereotypebs.
TABLE OF CASES.
Page
Ackerman, Estate of 269
Belirniaun, Estate of 513
Berton, Estate of 319
Blythe, Estate of 152, 337
Burns, Estate of 39
Carlson, Estate of 276
Casey, Estate of 68
Chappelle, Estate of 34
Crane, Estate of 535
Dalton, Estate of 97
Deisen, Guardianship of 463
Dresel, Estate of 457
Dunsmuir, Estate of 53
Fitzgerald, Estate of 172
Ford, Estate of 342
Fuller, Estate of 467, 521
Goodspeed, Estate of 146
Gordon, Estate of 138
Graber, Estate of 345
Hale, Estate of 191
Herold, Estate of 271
Herzo, Estate of 165
Hessler, Estate of 354
Jessup, Estate of 476
Johnson, Estate of 425
Jones, Estate of 178
Kershow, Estate of 213
Kutsel, Estate of 1
Levinson, Estate of 325
Luesmann, Estate of 531
McGinn, Estate of 313, 315
McLaughlin, Estate of 107
Moxey, Estate and Guardianship of 369
O 'Brien, Estate of 168
(iii)
778634l
iv Table of Cases.
Page
Pearsons, Estate of 250
Skerrett, Estate of 552
Spangler, Estate of 22
Sutro, Estate of 120
Sweet, Estate of 458, 460
Tessier, Estate of 362
Tiffany, Estate of 36
Tobelmann, Estate and Guardianship of 18
Whartenby, Estate of 509
Wheeler, Estate of 32
Whitcomb, Estate of 279
TABLE OF CASES CITED.
Page
Alden v. St. Peter's Parish, 158 III. 637 166, 167
Allen V. McFarland, 150 111. 455 205
Alston, Appeal of (Pa.), 11 Atl. 366 545
Althof V. Conheim, 38 Cal. 230 202
Andrews V. Andrews, 110 111. 223 166
Andrew's Executors v. His Administrators, 7 Ohio St. 143 37
Apple, Estate of, 66 Cal. 432 555
Armstrong, In re, 80 Cal. 71 359
Armstrong v. Lear, 12 Wheat. 169 218
Ashbury v. Saunders, 8 Cal. 62 3
Attorney General v. Harley, 4 Madd. (Eng. Ch.) 267 182
Austin V. Boys, 24 Beav. 598 335
Bailey v. Bailey, 25 Mich. 185 545
Bailey v. Bailey, 8 Ohio, 239 218
Baiubridge 's Appeal, 97 Pa. 482 361
Balcom v. Haynes, 14 Allen, 204 542, 549
Ballentine, Estate of, 45 Cal. 696 351, 355, 359
Barker, Matter of, 2 Johns. Ch. 232 376
Barton, Estate of, 52 Cal. 540 278, 279
Barton, Estate of, 55 Cal. 87 368
Baskins' Appeal, 3 Pa. 304 545, 546
Bassett v. Granger, 100 Mass. 348 545
Beckett v. Selover, 7 Cal. 241 47
Behrman, Estate of, 2 Cof . Pro. Dec. 513 187
Blakely v. Blakely, 33 Ala. 611 103
Booth V. Vicars, 1 Colby Ch. 6 543
Boston V. Boylston, 4 Mass. 318 218
Bowen v. Johnson, 73 Am. Dec. 53, note 216
Bowman, In re, 69 Cal. 244 359
Boyle V. Boyle, 152 Pa. 115 206, 209
Brenhaw v. Story, 39 Cal. 179 162
Brenneman 's Appeal, 40 Pa. 115 541
Bruce 's Estate, 59 N. Y. Supp. 1083 144
Budd V. Brooke, 3 Gill, 198 218
Burdick 's Estate, 76 Cal. 639 359
Burfield v. Eouch, 31 Beav. 241 335
Burr V. eims, 4 Whart. 150 3
Burroughs, Estate of, 136 Cal. 116 200
Burton v. Knight, 2 Vern. 514 114
Butler, Estate of, 38 N. Y. 397 158
(V)
vi Table of Cases Cited.
Page
Caballero, Succession of, 25 La. Ann. 646 116
Campbell v. Clark, 64 N. H. 328 546
Campbell 's Trust, In re, 33 Ch. D. 98 543
Carter v. Board of Education, 68 Hun, 435 186
Clark V. Clark, 8 Paige, 152 162
Clark V. Thayer (Tex.), 71 S. W. 1050 201
Clarke v. Johnston, 85 U. S. 493 142
Clemens v. Patterson, 38 Ala. 721 103
Coleman v. Davis, 2 Strob. Eq. 334 142
Colton V. Colton, 127 U. S. 300 282
Cook V. Catlin, 25 Conn. 387 545
Cotter, Estate of, Myr. 179 274
Crerar's Estate, 56 App. Div. 479 144, 145
Crittenden, Estate of, 1 Cof. Pro. Dec. 1 38, 100
Crozier, Estate of, 65 Cal. 332 104
Cummings v. Cummings, 146 Mass. 501 542
Cunningham, Estate of, 54 Cal. 556 99
Daggett V. Slack, 8 Met. 450 551
Darby v. Mayer, 10 Wheat. 465 218
Davis, Estate of, 136 Cal. 597 131
De la Guerra v. Packard, 17 Cal. 183 158, 163
Denneker, In re Guardianship of, 67 Cal. 643 466, 467
Doe V. Griffin, 15 East, 393 532
Doe V. Thorley, 10 East, 438 205, 210
Dole V. Keyes, 143 Mass. 237 549
Doolittle V. Lewis, 7 Johns. Ch. 45 218
Dow V. Dow, 36 Me. 216 175
Doyle, Estate of, 73 Cal. 572 103
Dublin V. Chadbourn, 16 Mass. 433 219
J
Embry v. Millar, 1 A. K. Marsh. 303 218
Estey V. Clarke, 101 Mass. 36 552
Eyer v. Eyer, 70 Mich. 179 541
Eyres v. Fennimore, 2 Penn. 932 46
Fair v. Angus, 132 Cal. 581 129, 130
Fair, Estate of, 132 Cal. 523 129, 190, 207, 208
Ferrer v. Pyne, 81 N. Y. 281 541, 544
Ferrin v. Myrick, 41 N. Y. 315 361
Fetrow, Estate of , 58 Pa. 427 175
Fidelity & Deposit Co. v. United States, 187 U. S. 319 130
Fielden v. Ashworth, L. K. 20 Eq. 410 543
Fisher, Estate of, 1 Cof. Pro. Dec. 97 38,473
Flint, In re, 100 Cal. 391 151
Eraser v. Dillon, 78 Ga. 474 541
Freud, Estate of, 134 Cal. 333 128
Table of Cases Cited. vii
Page
Garber, Estate of, 74 Cal. 338 279
Garrity, Estate of, 108 Cal. 463 359>
Gharkey, Estate of, 57 Cal. 279 149
Gibbs V. Vincent, 11 Rich. 323 3
Gibson, Estate of, 1 Cof . Pro. Dec. 9 187
Goldtree v. McAlister, 86 Cal. 98 62,64
Goodrich v. Mayor etc. of Marysville, 5 Cal. 430 46
Goodwin v. Jones, 3 Mass. 514 218
Gould 's Estate, 156 N. Y. 423 144
Gouraud, In re, 95 N. Y. 256 104
Green v. Palmer, 15 Cal. 414 147, 148
Hall V. Barrows, 32 L. J. Ch. 538 335
Hall V. Barrows, 3 N. R. 259 336
Hall V. Hall, 20 Beav. 139 335
Hall V. Hall, 140 Mass. 267 543
Hancock v. American Life Ins. Co., 62 Mo. 26 532
Harrison v. Harrison, 44 Am. Dec. 378, note 282
Hawf ord v. Adler, 12 La. Ann. 241 117
Hayes v. Los Angeles, 99 Cal. 74 351
Hemming v. Gurrey, 2 Sim. & S. 212 182
Henry v. Thomas, 118 Ind. 23 543
High, Appellant, 2 Doug. (Mich.) 515 465
Hill V. Den, 54 Cal. 6-20 368
Hinckley, Estate of, 58 Cal. 457 136, 186, 368
Hoeffer v. Clogan, 171 111. 462 167
Holbrook v. Harrington, 16 Gray, 102 543, 551
Holladay 's Estate, 18 Or. 168 352
Homer v. Sheldon, 2 Met. 194 175
Houghton V. Kendall, 7 Allen, 72 544
Ives V. Metcalf , 1 Atkyns, 64 114
Jackson v. Etz, 5 Cow. 319 432
Jackson v. Jackson, 2 Cox C. C. 42 183
Jackson v. Phillips, 14 Allen, 539 167
Jamison v. King, 50 Cal. 132 151
Jenkins v. Trust Co., 53 N. J. Eq. 194 186
Jessup, Estate of, 2 Cof. Pro. Dec. 476 37
Jessup, In re, 81 Cal. 416, 458
477, 478, 479, 488, 490, 491, 492, 493, 499, 508
John Hancock Mut. L. Ins. Co. v. Moore, 34 Mich. 42 533
Johnson v. Johnson, 114 111. 611 533
Jones V. Habersham, 107 U. S. 174 168
Joseph, Estate of, 118 Cal. 662 102, 105
Keane, Estate of, 56 Cal. 407 278
Kearny v. Kearny, 72 Cal. 591 359
viii Table of Cases Cited.
Page
Kennedy v. Lee, 3 Mer. 441 335
Kerr v. Dougherty, 79 N. Y. 327 186
Kerrigan v. Tabb (N. J.), 39 Atl. 701 166
Kidd V. North, 14 Sim. 462 183
Kirklan 's Estate, 16 Cal. 161 278
Kittredge v. Folsom, 8 N. H. Ill 218
Knight, Estate of, 12 Cal. 207 160, 162, 163
Lamb v. Harbaugh, 105 Cal. 680 151
Laughton v. Atkins, 1 Pick. 535 219
Laytins' Estate, In re, 15 Misc. Eep. 660 104
Leavenworth v. Marshall, 19 Conn. 408 38
Lee V. Moore, Palm. 163 217
Leslie v. Sims, 39 Ala. 161 103
Lockwood's Appeal, 55 Conn. 157 546
Lord V. Lord, 65 Cal. 84 359
Luco V. De Toro, 91 Cal. 405 143, 367
Lux, Estate of, 100 Cal. 593 357, 360
Lyons v. Acker, 33 Conn. 222 541
Lyons v. Hammer, 84 Ala. 197 103
Mackintosh v. Blythe, 1 Brod. & B. 269 113
Martinovich v. Marsicano, 137 Cal. 354 131
Mawson v. Mawson, 50 Cal. 541 359
Maxwell, Estate of, 1 Cof . Pro. Dec. 145 189
Mayer v. Hover, 81 Ga. 308 545
Mayor, etc., of New York, v. Furze, 3 Hill, 612 351
McCauley, Estate of, 50 Cal. 545 359
McGlinsey's Appeal, 14 Serg. & E. 64 361
MeKinlay v. Tuttle, 42 Cal. 576 478
McKinne v. Schaeffer, 74 Cal. 614 359
McKinnon, Estate of, 64 Cal. 227 273
McKonkey 's Appeal, 13 Pa. 253 205
McLean v. Meek, 18 How. 16 218
Mc Willie v. Van Vacter, 35 Miss. 428 348
Merkel 's Appeal, 109 Pa. 235 189
Merriam v. Simonds, 121 Mass. 198 549
Miles v. McDermott, 31 Cal. 273 150, 151
Miller, Estate of, 48 Cal. 165 175
Mitchell V. Donohoe, 100 Cal. 202 205
Moneypenny 's Estate, 181 Pa. 309 143, 145
Muldrow V. Norris, 2 Cal. 74 46
Mumper 's Appeal 3 Watts & S. 443 37
Nioto V. Carpenter, 21 Cal. 488 478
Niven, In re, 20 Misc. Rep. 550 144
Noah, In re, 73 Cal. 591 359
Nott V. Nott, 111 La. 1029 201
Table of Cases Cited. ix
Page
Olney v. Angell, 5 E. I. 198 217
Ortiz, Matter of, 86 Cal. 306 65
Pearsons, In re, 98 Cal. 611 186
People V. Otsego Co., 51 N. Y. 406 351
Perry v. Ross, 104 Cal. 15 202
Pfuelb, Estate of, 48 Cal. 643 537, 551
Phalen, In re, 51 Hun, 208 104
Phelan v. Smith, 100 Cal. 169 345,351,356,359
Phelps V. Peabody, 7 Cal. 50 46
Pico, Estate of, 52 Cal. 84, 56 Cal. 413 495, 496
Pina V. Peck, 31 Cal. 359 493, 494, 496
Pistorius ' Appeal, 53 Mich. 350 361
Plant V. Fleming, 20 Cal. 93 46
Pond V. Makepeace, 2 Met. 114 218
Porter 's Estate, 77 Pa. 43 361
Preston v. Brant, 96 Mo. 552 544
Pritchett, Estate of, 51 Cal. 568 368
Eand v. Sanger, 115 Mass. 124 542
Eaymond v. Hillhouse, 45 Conn. 467 544
Raymond v. Simonson, 4 Blackf . 77 142
Eaynor, In re, 74 Cal. 421 466
Eeese v. Nolan, 99 Ala. 203 103
Reynolds v. Bullock, 47 L. J. Ch. 773 335
Rhotou V. Blevin, 99 Cal. 645 175
Rhymes ' Appeal, 93 Pa. 145 167
Rice 's Estate, 29 Misc. Eep. 404 144, 145
Eichards v. Miller, 62 111. 417 545
Eichardson, Estate of, 120 Cal. 344 64
Eisk's Appeal, 52 Pa. 269 551
Eogers v. King, 22 Cal. 71 65
Eosenberg v. Frank, 58 Cal. 400 466
Eowe V. Hibernia Savings etc. Soc, 134 Cal. 407 193
Eoyer 's Appeal, 13 Pa. 574 37
Euhl V. Mott, 120 Cal. 668 426
Eulof sou V. Cannon, 3 Utah, 232 164
Euss V. Crichton, 117 Cal. 695 141
Sackett, Estate of, Cof . Pro. Dec 37
Samson v. Samson, 64 Cal. 327 106
San Diego v. Higgins, 115 Cal. 170 141
San Francisco etc. Orphan Asylum v. Superior Court, 116 Cal.
447 99,102,103
San Francisco v. Jones, 20 Fed. 188 141
Sawyer v. Sawyer, 28 Vt. 245 360
Table of Cases Cited.
Page
Sbarboro, EiState of, 63 Cal. 5 99
Schede], 73 Cal. 594 175
Schermerhorn 's Estate, 38 App. Div. 350 144
Schmidt, In re, 94 Cal. 336 359
Schouler, In re, 134 Mass. 426 167
Schuyler v. Broughton, 70 Cal. 282 202
Sharon v. Sharon, 79 Cal. 633 498
Sherman v. Page, 85 N. Y. 123 158
Shillaber, Estate of, 1 Cof . Pro. Dec. 101 37
Smith, In re, 99 Cal. 451 359
Smith V. Davis, 90 Cal. 25 368
Smith V. Knowlton, 11 N. H. 197 3
Smith V. Walker, 38 Cal. 385 161
Sneed v. Ewing, 5 J. J. Marsh. 565 218
Soule, In re, 46 Hun, 661 104
Spears v. Burton, 31 Miss. 547 3
Speidel v. Henrici, 120 U. S. 377 142
Sprankle v. Commonwealth, 2 Walk. (Pa.) 420 206
Spring Valley W. W. v. San Francisco, 82 Cal. 321 149
Stacy V. Thrasher, 6 How. 59 218
Stark V. Parker, 56 jST. H. 481 64
Stevens, Estate of, 83 Cal. 325 357, 360
Stewart v. Gladstone, L. E. 10 Ch. D. 626 334
Storer v. Whitney, 1 Pa. 506 552
Stouvenel v. Stephens, 2 Daly (N. Y.), 319 3
Strawn v. Strawn, 53 111. 263 360
Strong V. Perkins, 3 N. H. 517 218
Strongton v. Baker, 4 Mass. 526 142
Sturdivant v. Neill, 27 Miss. 157 62
Supervisors v. United States, 4 Wall. 446 347
Swineburne, In re, 16 E. I. 208 542
Tanner v. Eobert, 5 Mart. (La.), N. S., 255 201
Tapley v. McPike, 50 Mo. 589 103
Taylor v. Keep, 21 HI. App. 368 137
Taylor v. Savage, 1 How. 282 101
Thelin v. Stewart, 100 Cal. 372 151
Thompson v. Samson, 64 Cal. 330 106
Thompson v. Thompson, 51 Ala. 493 360
Tillinghast v. Cook, 9 Met. 143 551
Tisdale v. Connecticut Mut. L. Ins. Co., 26 Iowa, 170 533
Toland v. Toland, 123 Cal. 143 190
Tompkins v. Weeks, 26 Cal. 52 ...161,162
Toole v. Cook, 16 How. Pr. 144 278
Toronto Trust Co. v. Chicago E. E. Co., 7 Am. Prob. Eep. 294.. 367
Tourton v. Flower, 3 P. Wms. 369 218
Trecothick v. Austin, 4 Mason, 34 219
Table of Cases Cited. xi
Page
Tuckey v. Henderson, 33 Beav. 176 183
Tyson v. Wells, 2 Cal. 130 45
Vanderbilt 's Estate, 10 N. Y. Supp. 239 141
Van Emon v. Superior Court, 76 Cal. 589 358, 362
Vanthienen v. Vantliienen, Fitz. 204 218
Vaughan v. Northup, 15 Pet. 5 218
Vogel, Succession of, 16 La. Ann. 139 535
Walkerly, Estate of, 77 Cal. 642 357,359,360
Walkerly, Estate of, 81 Cal. 583 356, 359
Wallace 's Estate, 28 Misc. Eep. 603 144
Walton V. Creditors, 3 Eob. (La.) 438 116
Ward V. Hearne, 1 Busb. 184, 3 Jones, 326 218
Welch, In re, 86 Cal. 183 352
Wells V. Hutton, 77 Mich. 129 549
Weringer, Estate of, 100 Cal. 345 358, 362
Whetton, In re, 98 Cal. 204 102
White V. Mann, 26 Me. 370 2
Willis V. Farley, 24 Cal. 491 100
Wilson V. Eoach, 4 Cal. 362 466
Wilson V. Tappan, 6 Ohio, 172 218
Wood V. Eobertson, 113 Ind. 323 543
Woodruff V. Taylor, 20 Vt. 65 218
Wood 's Appeal, 18 Pa. 478 546
Woodward v. James, 115 N. Y. 346 544
Wright V. Hicks, 12 Ga. 163 541
Young, Estate of, 123 Cal. 337 207, 208
CITATIONS.
CALIFORNIA.
CONSTITUTION.
Art. VI, sec. 5 .
Art VI, sec. 13
466
466
STATUTES,
Stats. 1850, p. 179 551
Stats. 1869-70, p. 530 494
Stats. 1871-72, p. 776 317
Stats. 1893, pp. 196, 197 109, 119
CODE OF CIVIL PROCEDUEE.
SECTION
PAGE
4 51, 493
42, 49
42
42
43, 49
466
466
466
145
20
21
22
23
76
78
187
338
345 141, 142
426
427
430
577
638
645
656
738 129, 131
. . . 147
... 151
.. 147
... 48
.39, 42
... 39
... 480
946
1021
1033
1063
1119
1132
1135
1138
1190
105
313
36
50
44
44
44
44
44
SECTION
PAGE
1191 44
1212 44
1230 44
1243 44
1269 44
1276 44
1277 44
1281 42, 45, 50
1290 50
1294 59, 60, 466
1299 59, 62
1300 59
1308 59
1309 2
1312 147, 151
1317 60
1318 60
1322 60
1323 61
1324 60, 61, 64, 220
1327 99, 100, 102
1328 99, 104, 106
1329 102, 104, 106
1331 104
1332 38, 99, 314, 317
1338 425, 427
1339 425, 426, 427
(3dii)
XIV
Citations.
CODE OF CIVIL PKOCEDUEE— Continued.
SECTION PAGE
1357 211
1365... 272, 273, 275, 277, 278, 279
1368 272, 275
1374 274
1375 274
1377 278
1379 275
1383 275
1415 37
1436 345, 347, 350
1437 345, 348, 350
1443 109,
158, 159, 345, 346, 348, 350
1444 110, 111, 113, 116
1445 112, 117, 118, 186
1449 117, 159
1450 345, 346, 348, 349, 350
1451 109, 186
1452 159
1461 35
1465 270, 355, 357, 359
1468 356, 359
1469 109
1475 109, 112
1478 109
1494 39, 40
1497 48
1504 48
1507 32, 39, 42, 43, 50
1508 39, 42, 43, 48, 49, 50
1516 159
1581 159 2019
SECTION PAGE
1613 348
1616 353
1618 368
1622 526
1628 526
1652 368
1664 339
1665 368
1667 553
1669 510, 511
1699 368
1702 368
1713 151
1716 36
1718 315, 338, 339, 530
1720 317
1726 275
1747 464, 466
1763 375
1767 375
1769 272
1796 466, 467
1858 99
1859 51
1870 491, 501
1879 51
1880 32, 39, 42, 48, 50, 51
1940 2
1982 221
2002 39, 41
2009 39, 41
39, 41
CIVIL
SECTION PAGE
42 272, 275
163 201
164 201
196 500
230 491, 492, 493, 495
696 177
699 369
715 368
767 177
852 344, 367
CODE.
SECTION
853 ...
857 ...
867 . . .
946 . . .
PAGE
. 344
. 366
. 369
. 554
1296 185, 187
1307 508
1310 537
1313 167, 185,
186, 187, 188, 190, 521, 554
1320 179, 187
Citations.
XV
CIVIL CODE— Continued.
SECTION PAGE
1321 187
1322 206, 209, 555
1325 174
1326 190
1327 175
1328 175
1334 538, 540
1335 538, 540
1338 554
1340 175
1343 537
1350 279
SFCTION PAGE
1353 279
1376 554
1386 177, 538, 539
1387 495, 496
1646
1667
2215
2281
2287
3525
3527
461
555
426
344
344
278
278
SECTION PAGE
52 58, 462, 465
3642 512
3716 140
POLITICAL CODE.
SECTION PAGE
3752 510, 511
3788 141, 142
3804 351
COFFEY'S
PROBATE DECISIONS.
Estate of ALEXIS 0. KUSTEL, Deceased.
[No. 3498; decided August 11, 1884.]
Olograph. — An Instrument Testamentary in Character, if proved to
be entirely written, dated and signed by the author, is established
as an olographic will.
Death — Presumption from Unexplained Absence. — In addition to
the legal presumption arising from unexplained absence for seven
years, certain facts have been noticed by courts as grounds on which
inferences of death may rest. But no general or certain rule can be
established; each case must be decided upon the facts, and the prob-
abilities that life has been destroyed.
Death — Presumption When Vessel Fails to Return. — The fact of
death may be found from the lapse of a shorter period than seven
years where one sails in an unseaworthy vessel on the night of a
violent storm and the vessel is unheard of for a long time after the
voyage should have been accomplished.
H. C. McPike, for petitioner.
COFFEY, J. Captain Alexis 0. Kustel was a member of
the firm of Kustel & Wightman, having their principal place
of business in San Francisco, but engaged in commerce in
the South Sea Islands. In 1883, June 24, Captain Kustel set
sail from the Island of Apia for another island of the Samoan
group, in a leaky and unseaworthy vessel; during the night
of his departure a fearful storm arose, and neither the ves-
sel nor any of her crcAv or passengers was heard of subse-
quently hitherto ; and by mariners and others conversant with
the circumstance the vessel has been given up as lost with all
on board. Now comes into court Mrs. Elizabeth Kustel and
presents for probate a paper alleged to be the olographic will
of Captain Kustel, which is in these terms:
Prob. Dec, Vol. H— 1 (1)
2 Coffey's Probate Decisions, Vol. 2.
"San Francisco, February 19, 1880.
"I, Alexis Kiistel, of the city of San Francisco, now being
of sound mind, do hereby make this my last will and testa-
ment, revoking all former wills of whatsoever kind. In case
of my death I leave all my property, of whatever kind, to
my wife, Lizzie Kustel, after paying all just debts. Should
my wife and myself get lost at sea or die, I wish the prop-
erty kept in trust as long as my mother lives, to pay her $50
per month from the profits of such property as I may pos-
sess, and when she dies I wish it to be evenly divided between
my brothers, Oscar Kustel, Arpad Kustel and Casimir B. Kus-
tel, or their children. I hereby appoint as my executors with-
out bonds Lizzie Kustel, Oscar Kustel and John Wightman,
"ALEXIS KUSTEL."
The authenticity of this document is established ; under
the statute (sections 1309, 1940, Code of Civil Procedure)
it is proved to be entirely written, dated and signed by Cap-
tain Kustel. The sole question is as to the proof of his death.
Is the court warranted in finding the fact of death from
the circumstances under which Captain Kustel departed from
Apia on the 24th of June, 1883? (1) The vessel in which
he set out to sea was unseaworthy ; ( 2 ) the same night a great
storm prevailed at sea; and (3) from that time no tidings of
the vessel or of those on board have been heard.
In addition to the legal presumption arising from unex-
plained absence for a period of seven years, certain facts
have been noticed by courts as affording grounds on which
inferences of death may rest: 2 Wharton on Evidence, sec.
1277.
One who has sailed on a vessel which has not been heard
of for such a length of time as would be sufficient to allow
information to be received from any part of the world to
which the vessel or those on board might have been expected
to be carried, and who has not been heard of since the vessel
sailed, may be presumed to be dead. No general or certain
rule can be established in such cases; each case must be de-
cided by the competent tribunal, upon proof of the facts and
probabilities that life has been destroyed : White v. Mann, 26
Estate of Kustel. 3
Me. 370. When, shortly after a vessel sailed, a violent storm
arose and prevailed along the coast, held, that after the lapse
of three years without any tidings of the vessel or of any
on board, the death of the captain during the storm might
be presumed: Gibbs v. Vincent, 11 Rich. 323.
In the case last cited it is observed by the court that it is
not from the presumption arising alone from the length of
time that the death is inferred, but from the prevalence of a
violent storm on the track of his vessel about the time he
sailed, and that neither vessel nor any one on board has been
heard of since; and (1 Greenleaf's Evidence, sec. 41) the
fact of death may be found from the lapse of a shorter period
than seven years, if the circumstances concur, as if the party
sailed upon a voyage which long since should have been ac-
complished and nothing has been heard of the vessel. This
doctrine is sustained by many decisions, among others : Spears
V. Burton, 31 Miss. 547; Stouvenel v. Stephens, 2 Daly (N.
Y.), 319; Smith v. Knowlton, 11 N. H. 197.
These are cases from other states, but the principle has
•not been rejected in California, so far as it has been invoked.
The proof of the unseaworthiness of the vessel in which Cap-
tain Kustel left Apia (she was not insured), the prevalence
of a violent storm on the same night on the sea whereon the
vessel was sailing, differentiate this ease from Ashbury v.
Saunders, 8 Cal. 62, 68 Am. Dec. 300, the specific perils
which, in the opinion of Mr. Justice Burnett (adopting the
views of ]\Ir. Chief Justice Gibson in Burr v. Sims, 4 Whart.
150), were necessary to be established in that case, have been
proved in this matter. It follows from the application of
this principle that the death of Alexis 0. Kustel must be
found as a fact, and letters testamentary should issue accord-
ing to the terms of the will.
PRESUMPTION OF DEATH.
^even Years' Absence — Presumption Arising from. — It is a general
rule of almost universal application that for all legal purposes a pre-
sumption of his death arises from the continued and unexplained
absence of a person from his home or place of residence without any
intelligence from or concerning him for the period of seven years.
In other words, the law presumes, after seven years' continued ab-
4 Coffey's Probate Decisions, Vol. 2.
sence, that a person is dead concerning whom nothing has been heard
or known during that time by those who, were he living, would
naturally hear from him. If a person leaves his home, or disappears,
the presumption in favor of life, in the absence of special circum-
stances, continues until a period of seven years has elapsed without
any tidings or intelligence from him, but, after that, the rule is re-
versed, and the law presumes his death: Crawford v. Elliott, 1 Houst.
465; Prettyman v. Conaway, 9 Houst. 221, 32 Atl. 15; Doe ex dem.
Cofer V. Flanagan, 1 Ga. 538; Adams v. Jones, 39 Ga. 479; Eyan v.
Tudor, 31 Kan. 366, 2 Pac. 797; Wentworth v. Wentworth, 71 Me.
72; Tilly v. Tilly, 2 Bland. Ch. 436; Schaub v. Griffin, 84 Md. 557,
36 Atl. 443; Loring v. Steineman, 1 Met. (Mass.) 204; In re Stock-
bridge, 145 Mass. 519, 14 N. E. 928; Waite v. Coaracy, 45 Minn. 159,
47 N. W. 537; Lajoye v. Primm, 3 Mo. (529) 368; Hancock v. Amer-
ican Life Ins. Co., 62 Mo. 26; Wheelock v. Overshiner, 110 Mo. 100,
19 S. W. 640; Flood v. Growney, 126 Mo. 262, 28 S. W. 860; Smith v,
Knowlton, 11 N. H. 191; Forsaith v. Clark, 21 N. H. 409; Wambaugh
v. Schenck, 2 N. J. L. 229; Burkhardt v. Burkhardt, 63 N. J. Eq. 479,
52 Atl. 296; Jackson v. Claw, 18 Johns. 347; McCartee v. Camel, 1
Barb. Ch. 455; Eagle v. Emmet, 4 Brad. Sur. 117; Morrow v. Mc-
Mahon, 35 Misc. Eep. 348, 71 N. Y. Supp. 961; Euoflf v. Greenpoint
Sav. Bank, 40 Misc. Eep. 549, 82 N. Y. Supp. 881; University of
North Carolina v. Harrison, 90 N. C. 385; Lewis v. Mobley, 4 Dev.
& B. 323, 34 Am. Dec. 379; Eice v. Lumley, 10 Ohio St. 596; Rosen-
thal V. Mayhugh, 33 Ohio St. 155; Whiteside's Appeal, 23 Pa. 114;
Appeal of Esterly, 109 Pa. 222; Burns v. Ford, 1 Bail. 507; Craig v.
Craig, Bail. Eq. 102; Boyce v. Owens, 1 Hill, 8; Corley v. Hollo way,
22 S. C. 381; Griffin v. Southern Ey. Co., 66 S. C. 77, 44 S. E. 562;
Primm v. Stewart, 7 Tex. 178; French v. McGinnis, 69 Tex. 19, 9 S. W..
323; Scott v. McNeal, 5 Wash. 309, 34 Am. St. Rep. 863, 31 Pac. 873;
Boggs V. Harper, 45 W. Va. 554, 31 S. E. 943; Cowan v. Lindsay, 30
Wis. 586; Davie v. Briggs, 97 U. S. 628, 24 L. ed. 1086.
After seven years have elapsed without intelligence of, or hearing
from, one who has absented himself from his family or his home, the
presumption of life ceases, and if no other evidence is introduced on
that point, the court should proceed on the presumption of his death,
without submitting the question to the jury: Cowan v. Lindsay, 30
Wis. 586. As examples of the giving effect to such presumption, it
may be stated that where a husband has been absent and unheard
of for more than seven years, marriage by his wife to another after
that time is presumed to be valid: Burkhardt v. Burkhardt, 63 N. J.
Eq. 479, 52 Atl. 296; Boyce v. Owens, 1 Hill, 5. But no lapse of
time, when the husband is absent, but known to be alive, by being
seen or heard of, in less than seven years, will of itself have the
effect of allowing the wife to validly contract another marriage, or
to contract as a feme sole: Boyce v. Owens, 1 Hill, 5. After an un-
accounted for absence of seven years, the law presumes the absentee
Estate of Kustel. 5
to be dead, and in a case where he, if living, would inherit real es-
tate, such estate will descend, not to him, but to the heirs of the per-
son dying seised: Appeal of Esterly, 109 Pa. 222; Burns v. Ford, 1
Bail. 507.
It seems that, in order to establish the presumption of death from
seven years' absence of a person unheard of, he must absent himself
from his home originally, and proof of a change of his residence
from one state to another, and that he has not been heard of in the
former state for a period of seven years, does not create the pre-
sumption: Keller v. Stuck, 4 Redf. Sur. 294; Latham v. Tombs, 32
Tex. Civ. App. 270, 73 S. W. 1060. The rule as to the presumption
of death of a person after seven years' absence is that such pre-
sumption of law does not attach unless it appear that such person
has been absent from his domicile, or his last place of residence,
without intelligence concerning him for the period of seven years:
Burnett v. Costello, 15 S. D. 89, 87 N. W. 575; Puckett v. State, 1
Sneed (Tenn.), 355.
The mere absence of a person from a place where his relatives
reside, not his own residence, and their failure to hear from him
for seven years, are not suflScient to raise a presumption of his death,
but in order to raise such presumption, there must be evidence of
diligent inquiry at his last place of residence and among his rela-
tives, and any other persons who would probably have heard from
him if he were living: Hitz v. Ahlgren, 170 111. 60, 48 N. E. 1068;
Litchfield v. Keagy, 78 111. App. 398. Thus, if in an action to recover
land, plaintiffs' claim as heirs at law of their deceased uncle, who
is alleged to be dead by reason of his having been absent and un-
heard of for a period of seven years, but there is no showing that
he was last heard of at the place where he last Uved, or that he had
any other home, or that he was unmarried and without children, the
proof is insufficient to establish that he died intestate and without
issue, or that plaintiffs are his heirs: Ironton Fire Brick Co. v. Tucker,
26 Ky. Law Rep. 532, 82 S. W. 241.
Failure to hear from an absent person for seven years, who is
known to have had a fixed place of residence abroad, is not sufficient
to raise a presumption of his death, unless due inquiry has been made
,at such place without getting tidings from him: Wentworth v. Went-
worth, 71 Me. 72; McCartee v. Camel, 1 Barb. Ch. 458.
The presumption of death is raised by the absence of a person
from his last place of domicile unheard of for seven years, and if a
person removes from his domicile in one state to establish a domicile
in another state or country, this is merely a change of residence,
and absence from this last domicile for seven years unheard of is
the absence upon which the presumption of death must be built, and
if alive when last heard from at his new domicile the presumption
is that life still continues: Francis v. Francis, 180 Pa. 644, 57 Am.
St. Rep. 668, 37 Atl. 120; Turner v. Sealock, 21 Tex. Civ. App. 594,
6 Coffey's Probate Decisions, Vol. 2.
54 S. W. 358. The mere absence of a person for seven years, even
from his home, is not alone sufficient to raise the presumption of
death, and there must be evidence also showing that he has not been
heard from within that time: Brown v. Jewett, 18 N. H. 230.
If it is shown that a person was living some two or three years
before the question of a presumption of his death from seven years'
absence is raised, there is no presumption that he has since died:
Lowe V. Foulke, 103 111. 58; Lewis v. People, 87 111. App. 588; Duke
of Cumberland v. Graves, 9 Barb. 596; Stroebe v. Fehl, 22 Wis.
(337) 324. In other words, if one is shown to be alive at a certain
time, there is a presumption of the continuance of his life after
that period which must be overcome by some sort of proof: Hancock
V. American Life Ins. Co., 62 Mo. 26.
Rebuttal and Burden of Proof. — The legal presumption of death
which arises from the absence of one from his home for the period
of seven years, and who in the meantime is not heard of, is equiva-
lent to prima facie evidence of the fact, and may be rebutted by
counter evidence: Youngs v. Heffner, 36 Ohio St. 232. If a person
has not been heard from for more than seven years, he is presumed
to be dead, and it devolves upon the person asserting the contrary
to make it appear: Forsaith v. Clark, 21 N. H. 409; Smith v. Combs,
49 N. J. Eq. 420, 24 Atl. 9. The burden of proof is upon the person
denying the death, and the presumption of death is not overcome by
mere similarity of name, but the identity of the person must be
shown: Hoyt v. Newbold, 45 N. J. L. 219, 46 Am. Eep. 757. A shorter
absence than seven years will not suffice to raise a presumption of
death, and the person in whose interest it is to show that he was
alive within that time is at liberty to do so by such facts and cir-
cumstances as will inspire that belief in the minds of the jury. The
person who claims a benefit or interest in his being alive within the
seven years must prove it: Whiting v. Nicholl, 46 111. 230, 92 Am.
Dec. 248; Smith v. Smith, 5 N. J. Eq. 484. When the presumption
of death has been raised, the jury must determine, under proper in-
structions, what quantity of evidence will outweigh such presump-
tion: Tisdale v. Connecticut Mut. Life Ins. Co., 26 Iowa, 170, 96 Am.
Dec. 136.
To rebut the presumption of death arising from an absence of seven
years unheard from, evidence is admissible to show that the absent
person has been heard of as living within that time, though by others
than members of his family: Flynn v. Coffee, 12 Allen, 133. To rebut
such presumption, testimony of a witness who saw a person bearing
the supposed deceased's name, as to his appearance and conversa-
tions had with him in regard to his family connections, is admissible:
Nehring v. McMurrain (Tex. Civ. App.), 45 S. W. 1032. The testi-
mony of several uncontradicted, unimpeached and disinterested wit-
nesses that the absent person returned and was seen alive within
considerably less than seven years from the time of his original dis-
Estate of Kustel. 7
appearance is sufficient to rebut the presumption of his death: Thomas
V. Thomas, 19 Neb. 88, 27 N. W. 84. When the presumption is sought
to be established by the affidavits of witnesses who have no interest
in the absent person, being neither relatives, friends, nor members of
the family, their testimony is overcome by the testimony of one
credible witness who is well acquainted with the absent person, knows
his handwriting, and has received a letter from him within the seven
years: Smith v. Smith, 49 Ala. 156.
In Case of Fugitive from Justice. — The fact that the absent person
is a fugitive from justice does not prevent the presumption from
arising, but is admissible to rebut the presumption of death: Mutual
Benefit Life Ins. Co. v. Martin, 108 Ky. 11, 55 S. W. 694; Winter v.
Supreme Lodge Knights of Pythias, 96 Mo. App. 1, 69 S. W. 662.
The presumption is rebutted when it is shown that the absent fugitive
has been seen, that there are rumors as to his whereabouts, and that
he absented himself when a warrant was issued for his arrest, and
that a woman of bad repute left about the same time: 'Kelly v.
Felker, 71 Ga. 775.
Time of Death of Absent Person. — If a person leaves his home,
place of residence or abode for temporary purposes, and is not seen,
heard of or known to be living for the continuous term of seven years
thereafter, he is presumed to be dead, but in such case the presump-
tion of life continues and the presumption of death does not arise
until the expiration of seven years from the time of the disappear-
ance, unless there is evidence that such person was at some particular
date in contact with some specific peril, or there are other circum-
stances sufficient to quicken the period of time necessary to raise the
presumption of death. Ordinarily the time of death is presumed to
be at the expiration of the seven years: Crawford v. Elliott, 1 Houst.
465; State v. Henke, 58 Iowa, 457, 12 N. W. 477; Spurr v. Trimble,
1 A. K. Marsh. 278; Newman v. Jenkins, 10 Pick. 515; Sehank v.
Griffin, 84 Md. 557, 36 Atl. 443; Bailey v. Bailey, 36 Mich. 181; Smith
V. Knowlton, 11 N. H. 191; Executors of Clark v. Canfield, 15 N. J.
Eq. 119; Burkhardt v. Burkhardt, 63 N. J. Eq. 479, 52 Atl. 296;
Matter of Davenport, 37 Misc. Eep. 455, 75 N. Y. Supp. 934; Eagle
V. Emmet, 4 Brad. Sur. 117; Burr v. Sim. 4 Whart. 150, 33 Am. Dec.
50; Schoneman's Appeal, 174 Pa. 1, 34 Atl. 283. The presumption of
death from seven years' unexplained absence does not by law arise
until the full period elapses, and the presumption of life will con-
tinue to the end of the seven years, unless facts are proved showing
that the absent person probably died sooner: Reedy v. Millizen, 155
111. 636, 40 N. E. 1028. At the end of seven years from the time
that an absent person was last heard of, the presumption of life
ceases and the presumption of death takes its place. The legal pre-
sumption establishes not only the fact of death, but also the time of
death: Whiting v. Nicholl, 46 Dl. 230, 92 Am. Dec. 248. In the ab-
sence of any fact except that of the absence of a person for seven
8 Coffey's Probate Decisions, Vol. 2.
years without having been heard from, the presumption is that such
person died on the last day of the seven years: Kauz v. Improved
Order of Red Men, 13 Mo. App. 341. If no sufficient facts are shown
from which to draw a reasonable inference that death occurred
within the lapse of seven years, the person will be accounted in all
legal proceedings as having lived during that period, and rights de-
pending upon his life or death will be administered as if he died
on the last day of that period: Eagle's Case, 3 Abb. Pr. 218.
Although it is presumed that a person absent from his home for
seven years continuously without having been heard from, died at
the end of that period, it will not be presumed that he died at any
other time than at the end of the seven years. And if it is claimed
that he met his death within a shorter time, that must be proved
as a fact: Hamilton v. Eoss, 3 N. J. Eq. 465; McCartee v. Camel, 1
Barb. Ch. 456; Evans v. Stewart, 81 Va. 724.
The rule as to the presumption of death is that it arises from
the absence of the person from his domicile without having been
heard of for seven years, and the current of authority establishes
the rule that the presumption is only that the person is then dead,
namely, at the end of the seven years, and does not extend to the
death having occurred at the end of any other particular time within
that period, but leaves it as a matter of fact whether it was at an
earlier or later day: State v. Moore, 11 Ired. 160, 53 Am. Dec. 401;
Spencer v. Eoper, 13 Ired. 333; Davie v. Briggs, 97 U. S. 628, 24 L.
ed. 1086. Although a person who has not been heard of after leaving
his home for seven years is presumed to be dead, yet the question
as to when such presumed death occurred is to be determined from
all the facts and circumstances in the case, there being no presump-
tion either of life or death at any particular time during the seven
years: Whiteley v. Equitable Life Ins. Co., 72 Wis. 170, 39 N. W.
369. If one has been absent and unheard of for seven years, the
presumption arises that he is then dead, but not that he died at
any particular time theretofore. To raise the latter presumption,
special facts and circumstances should be shown, reasonably con-
ducing to that end. The evidence need not be direct or positive, but
it must be of such a character as to make it more probable that he
died at a particular time than that he survived: Hancock v. American
Life Ins. Co., 62 Mo. 26. Proof that a person while living happily
with his family, and standing well in the community, left home
stating that he was going in a boat on a hunting trip, that he
had not been heard of two years later, that an empty boat with
certain articles of personal property had been found a few days
after his disappearance at the place to which he stated he was going,
is not sufficient to raise a presumption of his death at the time of
his disappearance, in the absence of evidence that the articles found
belonged to him, or that he hired a boat and went in the direction of
the place where the boat was found: Martin v. Union Mutual Ins.
Co., 13 Wash. 275, 43 Pac. 53.
Estate of Kustel. 9
The presumption of death arising from an unexplained absence for
seven years does not necessarily imply that the absent person died
at the end of that period. Circumstances may be introduced to show
the probability of his death at an earlier date and raise a presump-
tion of death prior to the end of the seven years' absence: Garden
V. Garden, 2 Houst. 574; Winter v. Supreme Lodge Knights of
Pythias, 96 Mo. App. 1, 69 S. W. 662; Stouvenel v. Stephens, 2 Daly,
319. But in the latter case strict and strong proof is required to
create the presumption: Garden v. Garden, 2 Houst. 574. The jury
are entitled to find, as a matter of fact, that a person died within
a much less period than seven years since he was last heard of, on
circumstantial evidence which leads their minds to such a conclusion:
Smith V. Knowlton, 11 N. H. 191; Puckett v. State, 1 Sneed (Tenn.),
356. The presumption of life, with respect to persons of whom no
account can be given, ends at the expiration of seven years from
the time they were last known to be living, and when it is sought
to prove death within that period by circumstantial evidence, there
must be a showing of diligent inquiry at the last place of residence
and among relatives, and any others who would probably have heard
from the absent person if living, and also at any known place of
fixed foreign residence: Bailey v. Bailey, 36 Mich. 181.
A person who, for seven years, has not been heard from by those
who, had he been alive, would naturally have heard from him, is
presumed to be dead, but the law does not necessarily raise any
presumption as to the precise time of such death, and the jury may
infer that he died before the expiration of the seven years, if it
appears that within that period he encountered some special peril,
or came within the range of some impending or imminent danger,
which might reasonably be expected to destroy life: Davie v. Briggs,
97 U. S. 628, 24 L. ed. 1086. Thus, from nonclaimer of rights or ex-
posure to peculiar sickness, death at an earlier period than seven
years may be inferred: Eobinson v. Eobinson, 51 111. App. 316. If a
person leaves his usual place of residence with an intention of re-
turning to it, and continues to be absent from it for seven years
without being heard of, he is presumed to be dead, but the time when
such presumption will arise may be greatly abridged by proof that
the person has encountered such perils as might be reasonably ex-
pected to destroy life, and has been so situated that according to the
ordinary course of human events he must have been heard from it
he had survived. No general rule can in such cases be established,
but each ease must he decided by a competent tribunal upon proof
of the facts and probabilities that life has been destroyed: White v.
Mann, 26 Me. 361.
The presumption arising from the absence of a person for seven
years without having been heard from, that he died at the end of
that period may be rebutted by proof of facts tending to show that
his death occurred at an earlier period: Kauz v. Improved Order of
10 Coffey's Probate Decisions, Vol. 2.
Red Men, 13 Mo. App. 341; Hancock v. American Life Ins. Co., 62
Mo. 26; Matter of Ackerman, 2 Redf. Sur. 521. The time of the
death of a person who cannot be found is presumed to be seven years
from the date upon M-hich he was last heard from, but the person
to whose interest it is to show that he died before that time may
rebut this presumption by showing from facts and circumstances
that his death in all probability happened before that day, or at
any particular day between that time and the day he was last heard
from: Whiting v. Nicholl, 46 111. 230, 92 Am. Dec. 249. The burden
of proving that the death took place at any particular time within
the seven years lies upon the person claiming a right to the estab-
lishment of which that fact is essential: Schank v. Griffin, 84 Md.
557, 36 Atl. 443; Corley v. Holloway, 22 S. C. 380; Evans v. Stewart,
81 Va. 724.
Less than Seven Years' Absence — General Rule Respecting. — There
is no arbitrary rule as to the length of time of the continued absence
of a person unheard from or of which will raise a presumption of his
death: Czech v. Bean, 35 Misc. Rep. 729, 72 N. Y. Supp. 402. The
legal presumption of death permitted by the common law after the
absence and lapse of seven years unaccounted for is also allowable
before the expiration of that period, if there is evidence tending to
prove that death occurred at an earlier date, or showing a greater
probability of death than life at the prior date: Carpenter v. Su-
preme Council Legion of Honor, 79 Mo. App. 597; Waite v. Coaracy,
45 Minn. 159, 47 N. W. 537; Eagle v. Emmet, 4 Brad. Sur. 117;
Cambrelleng v. Burton, 125 N. Y. 610, 26 N. E. 907. Death, like any
other fact, may be established by circumstantial evidence, when direct
proof is not obtainable, and when the absence of a person without
tidings from him concurs with other attendant and supporting cir-
cumstances to produce the conviction that he is dead, such proof is
all that can be required: Boyd v. New England etc. Life Ins. Co.,
34 La. Ann. 448. There is no arbitrary or positive rule in respect
to the time when the presumption of death may be drawn from the
continued absen.ce of a person. It is not necessary that seven years
or any specific period should elapse, to lay the foundation for such
presumption, but it may be drawn on a shorter period, whenever
the facts of the case warrant it: Merritt v. Thompson, 2 Hilt. 550.
The death of an absent person may be presumed in less than seven
years, from other facts and circumstances than exposure to a prob-
ably fatal danger, such as the improbability of, and lack of, motive
for abandoning his home: Cox v. Ellsworth, 18 Neb. 664, 53 Am.
Rep, 827, 26 N. W. 460; Northwestern Mut. Life Ins. Co. v. Stevens,
71 Fed. 258. Thus, the death of an absent person may be presumed
in less than seven years from the date that he was last heard from,
not only from evidence that he was exposed to peril which probably
resulted in his death, but from other facts and circumstances tend-
ing to show such result, and in this connection evidence of character,
Estate of Kustel. 11
habits, affections, attachments, prosperity, domestic relations, objects
in life, and the like, making the abandonment of home and family
improbable, and showing a want of all those motives supposed to in-
fluence men to such acts, may be sufficient to raise the presumption
of death, or from which the death of one absent and unheard from
may be inferred, without regard to the duration of such absence: Tis-
dale V. Connecticut etc. Ins.- Co., 26 Iowa, 170, 96 Am. Dec. 136. If
one who is studious in habits, attentive to business, with a fixed and
permanent residence and pleasant domestic relations, suddenly disap-
pears, these facts may warrant a jury in finding his death at the time
of his disappearance: Hancock v. American Life Ins. Co., 62 Mo. 26.
Less than Seven Years' Absence — Exposure to Peril. — If, when last
heard from, a person was in contact with some specific peril, this
circumstance may raise a presumption of death without regard to the
duration of the absence. But other circumstances may create the
same presumption, as where the circumstances of the disappearance
are more consistent with the theory of death than that of a con-
tinuance of life, when considered with reference to those influences
and motives which ordinarily govern men, in either of which cases
the jury may infer death at any time within the seven years, such
as may seem to it most probable: Lancaster v. Washington Life Ins.
Co., 62 Mo. 121; Sheldon v. Ferris, 45 Barb. 124. Absence of a person
alone does not raise a presumption of his death unless continued un-
heard from for seven years, but absence in connection with sur-
rounding circumstances, such as the failure of his family to hear from
him, his character, and business and family relations, together with
the fact that he was last known to be seen near the place where a
murder was supposed to have been committed, and the reputation in
his family and with his friends that he is dead, creates a strong pre-
sumption of his death at the time of his disappearance, the law being
satisfied with less than certainty, yet demanding a preponderance of
the evidence. On the other hand, evidence to overcome the presump-
tion of death, that the person supposed to be dead was in a financial
condition which might have induced him to abscond, or that he was
a speculator, or visionary in his business, is all proper evidence to
be considered by the jury in determining the fact of death or life:
Sensendefer v. Pacific Mutual Life Ins. Co., 19 Fed. 68. The perils
to which one may be exposed and which will raise a presumption of
death from his absence unheard from for less than seven years most
frequently arise, perhaps, from the perils of the sea. Thus, if, shortly
after a vessel sails, a violent storm arose, the death of the captain
of such vessel may be presumed to have occurred during such storm,
after the lapse of three years without any tidings from such vessel,
or any of the persons then aboard: Gibbes v. Vincent, 11 Rich. 323.
And one on board a vessel under such circumstances is presumed to
have lost his life at the time of the storm in which the vessel is
presumed to have gone down or been destroyed: Larned v. Corley, 43
12 Coffey's Probate Decisions, Vol. 2.
Miss. 688. If a commander of a vessel and his crew and passengers
begin a voyage at sea and neither the vessel nor those who went in
her are afterward heard of, the presumption arises, after the utmost
limit of time for her to have completed the voyage and to have heard
from all the commercial ports of the world if she had arrived, that
the vessel has been lost and that all on board of her have perished.
The presumption of death in such case .does not rest upon the fact
alone that the person in question has been absent and unheard from
for a specific length of time, but also upon the fact that the vessel
has not been heard from, and the question in such case is not whether
it is not possible that the person may be alive, but whether the cir-
cumstances do not present so strong a probability of his death that
a court should act thereon. Presumptions founded on a reasonable
probability must prevail as against mere possibilities, otherwise the
conclusion could never be arrived at, that a man was dead until
the natural limit of human life had been reached: Meritt v. Thomp-
son, 1 Hilt. 550; and to the same effect, Gerry v. Post, 13 How. Pr.
118; King v. Paddock, 18 Johns. 141; Oppenheim v. Wolf, 3 Sand.
Ch. 571. If a person takes passage on a vessel and is shown when
last seen on the voyage to be sick and despondent and leaning out
through a "shutter" which opens on the water, and when the voyage
is ended ineffectual search is made for him, while his belongings are
found in his room, and he was not seen to go ashore at way ports and
could not have landed unobserved, the facts are amply sufficient to
show that he was brought in contact with a specific peril and to raise
the presumption that he met his death by drowning at the time when
last seen: Lancaster v. Washington Life Ins. Co., 62 Mo. 122.
Long-continued Absence. — If a person has been absent from his
home for a long time, the period of his absence exceeding seven years
without his having been heard from or of, and nothing appears to
account for such absence, the jury may, and ought to, presume his
death, as a legal presumption of his death then arises: Bailey v.
Bailey, 36 Mich. 181; Matter of Barr, 38 Misc. Eep. 355, 77 N. Y.
Supp. 935; Matter of Sanford, 199 App. Div. 479; Miller, v. Beates,
3 Serg. & E. 490, 8 Am. Dec. 658.
The absence of a person for eight years without being seen or heard
of warrants a presumption of his death, and if to this is added the
proof of his frequent declarations of an intent to commit suicide, the
presumption is strengthened, and warrants the conclusion that his
death occurred about the time of his disappearance: Sheldon v. Fer-
ris, 45 Barb. 124. If one is absent twenty years from the place where
he and all of his relatives resided, and he has never been heard from,
though inquiry has been made for him, he is presumed to be dead
80 that letters of administration on his estate are authorized: Fer-
rill V. Grigsby (Tenn.), 51 S. W. 114. If a husband has been absent
from his home and unheard of by his wife for seventeen years, he
is presumed to be dead: Garwood v. Hastings, 38 Cal. 216; Osborn
Estate of Kustel. 15
V. Allen, 26 N. J, L. 388. And if he has been absent under like
circumstances for ten years, his wife may contract a valid marriage
with another, as he is presumed to be dead: Estate of Harrington,,
140 Cal. 244, 98 Am. St. Eep. 51, 73 Pac. 1000. The continued ab-
sence, unheard from, and nonappearance of depositors at a bank for
twenty years, and the nonclaimer by them of their deposits, are cir-
cumstances sufficient to raise a presumption of their death: Bank of
Louisville v. Board of Trustees, 83 Ky. 219. If an unmarried maa
has been absent and not heard from for more than twenty-five years,
it may be presumed that he died seven years from his disappearance
and without issue: Chapman v. Kimball, 83 Me. 389, 22 Atl. 254;
Shown V. McMaekin, 9 Lea, 601, 42 Am. Rep. 680. Such an unex-
plained absence of forty-three years rebuts the presumption of a
continuance of life and creates a presumption that the man is dead
and that he left no issue him surviving: McNulty v. Mitchell, 41 Misc.
Rep. 293, 84 N. Y. Supp. 89. In Doe ex dem. Hurdle v. Stockley, 6
Houst. 447, it was, however, held that if a married man and his fam-
ily left the state and were not again heard of for fifty years by any
of their relatives living at the place from which they absented them-
selves, the jury cannot be instructed to presume that they are all
dead without issue. It has also been held that under such circum-
stances it is proper to refuse to distribute the share of an estate be-
queathed to an unmarried man who has been absent over fifty years,
without being heard from, on the presumption that he died without
issue, in the absence of satisfactory proof of diligent inquiry at the
proper place to ascertain whether he is dead or alive: Dunn v. Travis,
56 App. Div. 317, 67 N. Y. Supp. 743; affirmed Hornberger v. Miller,
163 N. Y. 578, 57 N. E. 1112. The better rule is in accord with this,
holding, namely, that some inquiry must be made at the absentee's
last known place of residence, in order to establish the presumption
of his death, no matter how long his absence may have continued:
Dworsky v. Arndtstein, 29 App. Div. 274, 51 N. Y. Supp. 597. But
it has also been held that the lapse of twenty-four years, though
without proof of inquiry or other circumstances, is sufficient to war-
rant the presumption of the death of a person of whom nothing has
been heard for that length of time: Innis v. Campbell, 1 Rawle, 372.
The presumption of death from long-continued absence is not an im-
perative rule of law where the circumstances of the disappearance
permit of a different inference: Winter v. Supreme Lodge Knights of
Pythias, 96 Mo, App. 1, 69 S. W. 662. One's absence from a particu-
lar place raises no presumption of his death, no matter how long^
such absence is continued if there is no evidence that he ever estab-
lished his residence there, but his absence from his established home
or residence must be proved, and that no intelligence has been re-
ceived of him for seven years or more: Stinchfield v. Emerson, 52,
Me. 465, 83 Am. Dec. 524.
14 Coffey's Probate Decisions, Vol. 2.
In Case of Sailors and Soldiers. — If a sailor departs on a voyage
and is not beard from thereafter his death is presumed at the end of
seven years: Godfrey v. Schmidt, Cheves Eq. 57. A seafaring man
who goes to sea and is not heard from within nine years is pre-
sumed to be dead: Burleigh v. Mullen, 95 Me. 423, 50 Atl. 47. Or
if a sailor goes to sea and is not heard from for fifteen years, the
presumption arises that he is dead: Larned v. Corley, 43 Miss. 688.
The same presumption arises if a sailor is absent unheard from for
twenty-three years: Sterrett v. Samuel, 108 La. Ann. 346, 32 South.
428; Holmes v. Johnson, 42 Pa. 159. But it is not necessary that
seven years or any specific period should elapse to lay the founda-
tion for the presumption of the death of a sailor from his absence,
and the presumption may be drawn whenever the facts of the case
will warrant it. Thus, if the person "whose death is in question
went to sea, and nothing has been heard from the vessel in which
he left or of those who went in her, the presumption, after a suf-
ficient length of time has ensued, will be that the vessel was lost,
and that all on board perished. The length of time that must elapse
to create such presumption depends upon the nature of the voyage
and of the navigation, and a court or a jury will be guided by the
circumstances that are laid before them, in determining whether such
presumption is warrantable or not": Merritt v. Thompson, 1 Hilt.
550. In such cases the presumption of death may arise in a much
shorter time than seven years. Thus, if it takes a vessel four months
ordinarily to make the voyage, and she is not heard from in seven-
teen months after her departure, it may be presumed that she is
lost and that all on board of her have perished: Merritt v. Thompson,
1 Hilt. 550.
A soldier who, after joining the army goes to war, and never returns
nor is heard of afterward, may be presumed dead after twenty-five
years: Jamison v. Smith, 35 La. Ann. 609.
In Case of Extreme Old Age. — The death of a person may be pre-
sumed after a long lapse of time, as where, if alive, he would have
been one hundred and fifty years old. Persons, however, have been
known to live ninety and one hundred years, and the court cannot
say that others have died at an earlier age without some evidence on
the subject: Hammond v. Inloes, 4 Md. 141.
The civil law presumes a person to be living at the age of one
hundred years, and the common law does not stop much short of this:
Eoe ex dem. Watson v. Tindal, 24 Ga. 494. Thus under the civil law
the death of an absentee who is less than one hundred years old is
never presumed, but must be clearly shown as a fact: Hayes v. Ber-
wick, 2 Mart. 138, 5 Am. Dec. 727; Miller v. McElwee, 12 La. Ann.
476; Martinez v. Succession of Vives, 32 La. Ann. 305; Willett v.
Andrews, 51 La. Ann. 486, 25 South. 391. The death of a person
before the bringing of the suit may be presumed when it would be
contrary to the ordinary course of nature, through lapse of time, that
Estate of Kustel. 15
he should be living at that time, although it is not necessary to in-
dulge any presumption of the period when death occurred, or up to
which time life endured: Sprigg v. Moale, 28 Md. 497, 92 Am. Dec.
698. Thus, a grantor in a deed will be presumed to be dead eighty
years after its acknowledgment by him: Young v. Shulenberg, 165
N. Y. 385, 80 Am. St. Rep. 730, 59 N. E. 135. The maker of a power
of attorney, though aged, is presumed to have been alive five years
later, at the time of the execution of a deed in his name by his
attorney in fact appointed under such: Chicago etc. R. R. Co. v.
Keegan, 185 111. 70, 56 N. E. 1088.
Presumption at Time Judgment Rendered. — In the case of a judg-
ment rendered by a court of a justice of the peace more than twenty-
five years in the past, in the absence of proof that the defendant was
dead at the time that the suit was brought and prosecuted to judgment,
the presumption is that the defendant was living at that time, and
not that he was dead: Willis v. Ruddock Cypress Co., 108 La. 255, 32
South. 386.
Survivorship — Generally. — At common law there is no presumption
of survivorship in case of persons who perish by a common disaster,
and in the absence of evidence from which survivorship can be de-
termined, it will be presumed for the purpose of settling rights to
property, that all persons of whatever age or sex, perishing in a com-
mon disaster, died at the same time, as the common law does not,
under any circumstances, even in the case where two or more perish
by the same calamity, indulge in any presumptions of survivorship
resting upon considerations of age or sex: Balder v. Middeke, 92 111.
App. 227; Middeke v. Balder, 198 111. 590, 92 Am. St. Rep. 284, 64
N. E. 1002, 59 L. R. A. 653; Russell v. Hallet, 23 Kan. 276; Johnson
V. Merithew, 80 Me. Ill, 6 Am. St. Rep. 162, 13 Atl. 132; Newell v.
Nichols, 75 N. Y. 78, 31 Am. Rep. 424; Stinde v. Goodrich, 3 Redf.
Surr. 87; Willbor's Petition, 20 R. I. 126, 78 Am. St. Rep. 842, 37 Atl.
634, 51 L. R. A. 863; Cook v. Caswell, 81 Tex. 678, 17 S. W. 385.
Where two persons perish by the same disaster, there is no presump-
tion of law as to survivorship, in the absence of a rule prescribed by
positive statutory enactment: Robinson v. Gallier, 2 Woods, 178, Fed.
Cas. No. 11,951. In a question of survivorship arising out of a com-
mon calamity, legal presumption founded upon the circumstances of
age, size or physical strength do not generally obtain in the United
States. That is a doctrine of the civil law which has not been
adopted, and has been given no sanction in our system of juris-
prudence: Smith V. Croom, 7 Fla. 81; Coye v. Leach, 8 Met. 371, 41
Am. Dec. 518. The presumptions of law as to survivorship as be-
tween persons perishing in the same disaster which have become the
rule of the civil law, have been adopted by the Civil Code of Louisiana
and by the Code of Civil Procedure of California, section 1963, sub-
division 40; but such presumptions apply only in the absence of cir-
cumstances of the fact, and when persons are respectively entitled
16 Coffey's Probate Decisions, Vol. 2.
to inherit from one another: Eobinson v. Gallier, 2 Woods, 178, Fed.
Cas. No. 11,951. And, generally speaking, where several lives are
lost in the same disaster, there is no presumption from age or sex
that either survived the other, and the fact of survivorship must be
proved by the person asserting it: Johnson v. Merithew, 80 Me. Ill,
6 Am. St. Rep. 162, 13 Atl. 132; Supreme Council of Royal Arcanium
V. Kacer, 96 Mo. App. 93, 69 S, W. 671, 169 Mo. 301, 92 Am. St. Rep.
301, 69 S. W. 370, 59 L. R. A. 653. He who claims a right by virtue
of survivorship must prove the fact of the survival of him through
whom he claims, and failing in this, the property or fund remains
vested as it was before the calamity: Middeke v. Balder, 198 111.
590, 98 Am. St. Rep. 284, 64 N. E. 1002, 59 L. R. A. 653; United
States Casualty Co. v. Kacer, 169 Mo. 301, 92 Am. St. Rep. 641, 69
S. W. 370, 58 L. R. A. 436. Disparity of age may be considered in
determining the question of survivorship as between an adult and
an infant, or a person well stricken in years: Cuye v. Leach, 8 Met.
371, 41 Am. Dec. 518. And if several persons grown and infant
perish in a fire, the probable origin thereof and the location of the
bodies when found may be considered as an aid in determining the
question of survivorship: Will of Ehle, 73 Wis. 445, 41 N. W. 627.
And the fact of such survivorship does not require any higher de-
gree of proof than any other fact in a civil case: Robinson v. Gallier,
2 Woods, 178, Fed. Cas. No. 11,951.
Survivorship in Case of Husband and Wife. — It is a general rule
that if husband and wife are shown to have perished in the same
casualty, nothing appearing to the contrary, there is no presump-
tion of survivorship, but it is presumed that both died at the same
moment: Kansas Pacific Ry. Co. v. Miller, 2 Colo. 445; Balder v.
Middeke, 92 III. App. 227; Middeke v. Balder, 198 111. 590, 92 Am.
St. Rep. 284, 64 N. E. 1002, 59 L. R. A. 653; Fuller v. Linzee, 135
Mass. 468. If husband and wife die together on the same night from
an escape of gas in their room there is, in the absence of evidence
upon the point, no presumption that one survived the other: South-
well V. Gray, 35 Misc. Rep. 740, 72 N. Y. Supp. 342. And in such
case where a benefit certificate of insurance provides that it shall be
paid to the heirs of the deceased member, in case the named beneficiary
dies before the insured, and the wife of the member is named as
beneficiary, the benefits must go to the heirs of the deceased mem-
ber, and not to the heirs of his wife: Middeke v. Balder, 198 111. 590,
92 Am. St. Rep. 284, 64 N. E. 1002, 59 L. R. A. 653; Southwell v.
Gray, 35 Misc. Rep. 740, 72 N. Y. Supp. 342. A different conclusion
was reached in Cournan v. Rogers, 73 Md. 403, 21 Atl. 64, 10 L. R.
A. 550, where it was held that there was no presumption of sur-
vivorship, but that in the absence of competent and sufiicient evi-
dence to show that the wife, the nominated beneficiary, died before
her husband, her legal representatives were entitled to the fund.
Estate of Kustel. 17
If both husband and wife perish in the same calamity, no presump-
tion of survivorship of the wife arises from the fact that an order
of the probate court granting letters of administration upon her estate
recites that she was the surviving wife of her husband, and in a pro-
ceeding by her administrator to set aside the probate of her husband 's
will, it is error to refuse evidence aliunde upon the question of sur-
vivorship: Sanders v. Simcich, 65 Cal. 50, 2 Pac. 741; but under sub-
division 40 of section 1963 of the Civil Code of California, a presump-
tion of survivorship arises where two persons perish in the same
calamity from the probabilities resulting from strength, age and sex
of the victims, and it results that if husband and wife perish in the
same calamity, and there is nothing to show which expired first, and
both are between the ages of fifteen and sixty, he is presumed to have
been the survivor: Hollister v. Cordero, 76 Cal. 649, 18 Pac. 855. See
the application of this rule, where the calamity was an earthquake, in
Grand Lodge v. Miller (Cal. App.), 96 Pac. 22. If a husband and wife
perish together at sea, it is presumed that he survived her: Moeh-
ring V. Mitchell, 1 Barb. Ch. 264.
Survivorship in Case of Parent and Child, or Other Relatives. —
If a mother and her infant son perish in a common catastrophe, and
there is no positive evidence as to which perished first, there is no
presumption of survivorship, but it will be presumed that both per-
ished at the same time: Stinde v. Goodrich, 3 Eedf. Surr. 87. The
same presumption prevails as to mother and child, regardless of age
or the sex of the child: Moehring v. Mitchell, 1 Barb. Ch. 264; Rus-
sell v. Hallett, 23 Kan. 276; Cook v. Caswell, 81 Tex. 678, 17 S. W.
385. In case of a mother, aged sixty-nine years, her son in law,
aged forty-five, and his two children, aged respectively ten and
seven years of age, who all perished in the same shipwreck, there
is no presumption of survivorship: Newell v. Nichols, 75 N. Y. 78,
31 Am. Rep. 424; and if three sisters perish in the same calamity,
no fact or circumstance appearing from which it may be inferred
that either survived the other, the rights of succession to their es-
tate are to be determined as if death occurred to all at the same
moment: Petition of Willbor, 20 R. I. 126, 78 Am. St. Rep. 842, 37
Atl. 634, 51 L. R. A. 863. No presumption of survivorship exists as
between a father, seventy years of age, and his daughter, thirty-
three years of age, each of whom perished in the same disaster. In '
the absence of all evidence of survivorship in such case, the presump-
tion is that the death of each occurred at the same instant: Coye
V. Leach, 8 Met. 371, 41 Am. Dec. 518. This is the rule at com-
mon law in the absence of express statute to the contrary, but in
Louisiana, where the civil law prevails, there is no presumption as to
simultaneousness of death. Hence if a mother fifty-two years of age
and her daughter aged thirty-five years perish in the same calamity,
the latter is presumed to have been the survivor: Succession of
Prob. Dec, Vol. II— 2
18 Coffey's Probate Decisions, Vol. 2.
Langles, 105 La. 39, 29 South. 739. A presumption of survivor-
ship may arise from facts in evidence. Thus, if a son of affectionate
disposition and in the habit of writing frequently to his parents has
not been heard from for nearly seven years prior to the death of his
father, and was that long ago very ill with consumption, it will be
presumed that his father outlived him: Leach v. Hall, 95 Iowa, 611,
64 N. W. 790. If a father and his son both disappear and are un-
heard of for seven years, the presumption is that both are dead, but
there is no presumption that the father survived the son from the
mere fact that he was seen or heard of later than the son when both
have not been seen or heard of for more than seven years, and in
such case property in which the father has a life estate and the son
a vested remainder, but which would go to the father if he survived
his son, must be distributed as the property of the son: Schank v.
Griffin, 84 Md. 557, 36 Atl. 443.
Estate and Guardianship of MARGARET TOBELMANN,
AN Insane Person.
[No. 5894; decided March 25, 1887.]
Guardianship. — Where an Insane Person, While Sane, has selected
a conservator of her property, the court should regard such selection
as the expression of the wishes of a competent person, and, where
the management of such agent has been prudent and judicious, the
best interests of her estate will be promoted by continuing it in his
hands.
Guardianship. — A Divorced Husband is a Stranger to a Proceeding
for the appointment of a guardian of his former wife, an insane per-
son, except so far as he is concerned in the succession of the chil-
dren of the marriage to her estate.
Guardianship. — In an. Application by a Divorced Husband for let-
ters of guardianship of the person and estate of his former wife, an
. insane person, the decree of divorce must be taken as correct and
conclusive.
J. C. Bates, for Martin J. Burke, applicant.
A. H. Loughborough, for F. Tobelmann, counter applicant.
COFFEY, J. On January 19, 1887, Martin J. Burke filed
in this court a petition alleging that he is a resident of the
Estate of Tobelmann. 19
city and county of San Francisco, of the age of fifty years
and upward, and was and had been for five years last past
the agent and friend of Margaret Tobelmann ; that said Mar-
garet is a resident of San Francisco; that she is a single
woman, having been divorced from Frederick Tobelmann, once
her husband, on August 24, 1886, by a judgment and de-
cree of the superior court of this city and county; that by
the terms of the judgment and decree of divorce the issue of
the marriage, to wit, Lizzie Tobelmann, of the age of eleven
years. Avas awarded to the wife, said Margaret, and the boy
Frederick was awarded to his father Frederick ; that said Mar-
garet has property situate in the city and county of San Fran-
cisco, consisting of money and real estate, described in said
petition, which brings in an income of about $400 per month ;
that said Margaret is now insane and under treatment for
insanity in the Pacific Asylum at Stockton under the man-
agement of Dr. Asa Clark, and has been there since October
15, 1886 ; that she is not capable of taking care of herself and
is mentally incompetent to manage her property, and that it
is necessary that a proper person be appointed guardian of
the person and property of said Margaret; that said peti-
tioner, Martin J. Burke, was voluntarily selected by said Mar-
garet as her agent to rent, lease and manage her property
w^hile sane, and that he is a competent, fit and proper person
to have the care and management of said Margaret and her
property, and that the petitioner verily believes that he is her
choice; that he is the duly appointed, qualified and acting
guardian of the person and estate of Christian A. Tittel, who
is also an incompetent person, and who is a brother of said
Margaret ; that in consideration of the premises the petitioner
prays that he may be appointed guardian of the person and
estate of said Margaret Tobelmann.
On January 28, 1887, Frederick Tobelmann filed his peti-
tion setting forth that he was formerly the husband of said
Margaret Tobelmann, and that he had always been a good
and kind husband to her, but that actuated by an insane de-
lusion that he had treated her cruelly she commenced an ac-
tion for divorce against him, which resulted in the decree of
20 Coffey's Probate Decisions, Vol. 2.
divorce mentioned in the petition of Martin J. Burke; that
the said divorce was obtained upon false testimony given by
her under the insane delusion aforesaid, and which the peti-
tioner could not disprove further than by his own testimony ;
that the said decree of divorce has been subsequently modi-
fied so as to give to the petitioner the custody of the two
children mentioned in the said petition of Martin J. Burke,
and that the petitioner Frederick is the father and now has
the custody of the said two children, both of whom are minors
under the age of twelve years; that the said Margaret is in-
sane; that she is a resident of the city and county of San
Francisco, and is the owner of real estate yielding a monthly
rental of about $400; that she has about $3,000 on deposit
in bank and in the hands of jMartin J. Burke at said city and
county; that she is incompetent to manage her property by
reason of her mental insanity; that the petitioner is over
twenty-one years of age and a resident of said city and
county ; that the said Margaret has no guardian of her per-
son and estate; and that the petitioner is the proper person
to be appointed such guardian, and he prays to be so ap-
pointed.
These petitions came on to be heard at the same time, and
evidence was introduced in support of each. It was shown
by the evidence that Margaret Tobelmann was insane, and
was at the time of the hearing and had been for some time
prior thereto an inmate of the lunatic asylum, and was at the
time of the application and hearing mentally incompetent to
manage her own estate.
It was also shown by the judgment and decree of divorce
alluded to in the petition of Martin J. Burke that she had been
divorced, as in said petition alleged, from, said Frederick, and
that the custody of one of the children, Lizzie, had been
awarded to her, and the custody of the other, Frederick, to
her former husband, and that said judgment and decree had
not been modified at the time of the hearing of this applica-
tion. The value and character of her estate were also proved
substantially as in both petitions set forth.
Estate of Tobelmann. 21
The question is, therefore, reduced to one of the relative
fitness of the applicants for appointment as guardian. In
considering this question I have examined, at the request of
counsel, the evidence given in the divorce proceedings in or-
der that I might have the benefit of all that was testified to
at that time as to the relations between the applicant, Fred-
erick Tobelmann, and his former wife, Margaret, and draw
therefrom a conclusion as to his competency to be appointed
in this proceeding guardian of her person and estate.
I see nothing in the testimony in that case to warrant the
conclusion that the said divorce was obtained upon false tes-
timony given by her under an insane delusion that Frederick
had treated her cruelly, and I am not authorized, either in
law or in fact, to declare that the decree of divorce in that
case was founded upon false premises. I must accept that
decree as correct and conclusive. The applicant, Frederick
Tobelmann, therefore, is a stranger to this proceeding except
so far as he is the father of the children of Margaret, and
concerned for their succession to her estate. He prays to be
appointed guardian of her person and estate.
Taking as true her testimony in the divorce case, as well
as her testimony in this court in the matter of the guardian-
ship of Christian A. Tittel, her brother, I should not feel jus-
tified in committing to her former hiLsband the custody of
the incompetent.
With reference to the estate, it does appear that while Mar-
garet Tobelmann was presumably sane the petitioner, Martin
J. Burke, was voluntarily selected by her as her agent to rent,
lease and manage her property, and that he was, also, at her
instance appointed, and is acting as guardian of the person
and estate of Christian A. Tittel, the brother, also an incom-
petent. So far as has been brought to the attention of the
court, his management of the estate has been prudent and
judicious, and I think I am bound to regard the choice of
]\rargaret Tobelmann, when she made selection of Martin J.
Burke, as the expression of a person competent to select a
conservator of her property.
22 Coffey's Probate Decisions, Vol. 2.
As between these two applicants, without intending to cast
any undue reflection upon Frederick Tobelmann, I am of
opinion that the best interests of the estate w^ould be promoted
by continuing its care and custody in the hands of the one
to whom it had been committed by Margaret Tobelraann while
yet she was in presumptive possession of her mental faculties.
It is, therefore, ordered that the application of Martin J.
Burke for letters of guardianship over the person and estate
of Margaret Tobelmann be and it is granted ; and it follows
that the application of Frederick Tobelmann be and it is de-
nied.
Estate of DANIEL B. SPANGLER, Deceased.
[No. 6243; decided May 28, 1888.]
Insanity of Testator — Opinion of Witness. — A witness called on
behalf of the proponent of a will to prove the sanity of the testator,
who is not an expert, is not qualified to give his opinion where he
did not know that about the time of the execution of the will the testa-
tor had been adjudged dangerous to be at large, and was sent to
the home of the inebriates, and shortly after to the state insane
asylum; all he knew being based upon the fact that he never heard
the testator's insanity questioned, and saw nothing particularly wrong
about his mind.
Insanity of Testator. — Upon the Issue of Sanity Raised by a Con-
test to the probate of a will, the court is concerned only with the
fact of insanity, whatever cause the insanity may have proceeded
from being immaterial.
Insanity of Testator. — The Instrument Propounded as a Will should
itself be considered in connection with other evidence, upon the is-
sue of the testator's sanity.
Insanity of Testator — Injustice of Will. — Where the testator's es-
tate was small, and he left nothing to his wife, who had been his
spouse for twenty-five years, and was aged and infirm, remitting her
to her community rights, but bequeathed all his estate to strangers,
this fact may be considered as evidence in connection with other
facts and testimony, upon the issue as to the insanity of testator.
Insanity of Testator — When Established by Evidence. — Where a
will gives all the estate of the testator to strangers, remitting the
widow to her community rights, the probate thereof should be de-
Estate of Sp angler. 23
nied if it appears that the testator while young became insane and
was confined to a straight-jacket for six months; that he had a brother
and cousin who were insane; that he embraced spiritualism a few
years before his death and did many strange things under alleged
spiritualistic influences; that he had a great many peculiar beliefs;
that less than a month after making his will he was sent to the
home of inebriates as dangerously insane, and nine days thereafter
was formally adjudged insane and sent to the state asylum.
Ash & Mathews, for the contestant.
W. H. Bodfish, for the proponents.
COFFEY, J. The sole issue in this controversy is the san-
ity of the testator. A paper, purporting to be a will made
by Daniel B. Spangler, was filed in this court May 12, 1887,
accompanied by a petition of H. H. L.^iich, who is named in
said instrument as executor, reciting that the testator died
May 7, 1887, at Napa City, California, being a resident at
the time of San Francisco, and leaving estate therein consist-
ing of real and personal property of the aggregate value of
about $6000. The testator left him surviving a wife, Cath-
erine Spangler, but no children. At the time of making the
will, February 17, 1887, the testator w^as about the age of
fifty-four years. The operative items of the will are as fol-
lows:
^' First: I declare that all the property which I now pos-
sess, both real and personal, is community property; there-
fore, my wife, Catherine Spangler, will be entitled, under the
law, to the one-half thereof. I therefore make no further
provision for her.
"Secondly: I give and bequeath to Mrs. Ella Lynch, wife
of H. H. Lynch, now residing in the City and County of San
Francisco, the sum of two thousand dollars.
"Thirdly: I give and bequeath to my friend, George T.
Shaw, residing in said city and county, the sum of five hun-
dred dollars.
"Fourthly: I give and bequeath to my friend, Charles Mead,
of said city and county, the sum of two hundred and fifty
dollars.
24 Coffey's Probate Decisions, Vol. 2.
^^ Fifthly: I direct that my executors, hereinafter named,
sell my real estate at such time as to them may seem best, and
out of the proceeds thereof pay the several legatees the sums
of money hereinabove named."
The widow contests the probate of the will upon the ground
that at the date of its execution, and for a long time prior
thereto, the testator was not of a sound and disposing mind,
and not competent to make a will by reason of insanity ; and
the proponent denies the allegation of insanity, and avers
that the testator, at the date of the execution of the will and
prior thereto, was of sound and disposing mind and memory,
and fully understood the nature and character of the docu-
ment executed, and comprehended its contents, and executed
the same of his own free will.
In support of the allegation of insanity there is an abun-
dance of evidence. The testator died in the insane asylum
at Napa, on the 7th of May, 1887; to which institution he
had been committed on the 22d of March, having been ap-
prehended for insanity on the 13th of March, and detained
in the Home of the Inebriates, in San Francisco, from that
time until his commitment to the State Asylum. There were
present at the time of the commitment as witnesses and as
spectators: George T. Shaw, W. H. Bodfish, Mr. and Mrs.
Mead and Dr. McLaughlin. An examination was made by
the physicians appointed by the court for that purpose, and
it appears from the record certified to by them, and by the
judge that Mr. Spangler had certain delusions, stated as fol-
lows : " He is a walking electric battery ; has invented a code
of signals ; communes with the other world ; can pump himself
full of wind, which he can impart to others; wants to make
a chimney of one of his teeth. First indications occurred
about six months ago." This appears in the certificate at-
tached to the commitment, and the record shows that the wit-
nesses sworn and examined on that occasion were Dr. Mc-
Laughlin and George T. Shaw. The latter gentleman was
named in the paper offered as a will as an executor, but re-
nounced that trust. He appears in the will as a legatee for
a small amount, and also appeared as a witness in support
Estate of Spangler. 25
of the will ill the contest, at which time he testified substan-
tially that he felt perfectly confident in the soundness of the
testator's mind in regard to all business transactions at the
time of the making of the will.
Mr. John F. Kennedy, a subscribing witness to the docu-
ment, testified that at the time of that transaction in his judg-
ment the testator was entirely sound of mind; he had never
heard Mr. Spangler 's sanity questioned.
Charles H. Mead, who is a legatee in the will, testified that
on the morning of the making of the will, when the deceased
called him to send for Mr. Lynch, Mr. Shaw and Mr. Bodfish,
the witness never saw a more rational man in the whole world
than he was.
Mrs. Adelaide Mead, wife of the last named gentleman,
corroborated his evidence.
Mr. Bodfish, the attorney who drew the document offered
by the proponent as the will of Daniel B. Spangler, testified
that said Spangler was a client of his for several years be-
fore his death, that he saw him frequently about different
matters of business; that he believed him to have been of
sound and disposing mind at the time he signed the will,
as he talked upon the subject matter of the will intelligently,
gave him directions how to draw the will, and the will was
drawn in conformity with his directions. Twenty-five days
elapsed from the date of the will, February 17, 1887, until the
testator was committed to the home of the inebriates, March
13, 1887, on a charge of insanity, and nine days more elapsed
until he was committed to the lunatic asylum, March 22, 1887.
The record shows that Dr. McLaughlin, a witness for con-
testant, and George T. Shaw, above referred to, a witness for
the proponent, were sworn and examined, and that W. H.
Bodfish and Mr. and Mrs. JMead, all witnesses for proponent,
were present upon the occasion of the examination of testator.
The complaint was made by Doctor Moses A. McLaughlin;
and from his testimony, and that of George T. Shaw% witnesses
who had frequent intercourse with the accused during the
time of the alleged insanity, and upon the certificate of Doc-
tors J. M. Eaton and E. Windele, graduates in medicine, and
after a personal examination of the accused, and being him-
26 Coffey's Probate Decisions, Vol. 2.
self satisfied the accused was committed by the judge to the
insane asylum at Napa.
The certificate of the physicians sets forth that the attack
from which he was suffering at the time of the examination
first appeared about the 7th of February, ten days before
the making of the will, and that other attacks occurred about
six months previously.
This was the result of a judicial proceeding as recorded in
the Book of Insane Commitments, Volume XV, Superior
Court, folio 113. On that day he was solemnly adjudged to
be an insane man, and there is no escape from the conclusion
that four of the witnesses in behalf of the proponent believed,
at that time and place, that the statements in the certificate
of the examining physicians, and of the commitment, were
the truth, and that the insane attack from which he suffered
on March 22, 1887, first appeared February 7, 1887, and that
there were other attacks six months previously, and that all
of this period included the time at which he signed his name
to the paper here propounded. It is clear that their opinion
upon the 22d of March, 1887, was that this man was insane
on the 7th of February, 1887, and that that insanity continued
until the time of his commitment. If we conclude that their
opinion when testifying as witnesses for the proponent was
correct, we must reject the evidence elicited from them, or
given in their presence, upon which the man was committed,
as a dangerously insane lunatic, to the asyjum on the 22d of
March. Accepting either horn of the dilemma, their opinions
as to the sanity of this man at the time he signed the instru-
ment here propounded, as against the testimony for the con-
testants, must fall.
The remaining witness, Mr. Kennedy, was unquestionably
honest in his testimony, but erroneous in his opinion, as to
the sanity of this man. A careful examination of his testi-
mony shows that his observation was not sufficient to justify
the deduction that the decedent was of sound mind at the time
of this transaction; he was called to the place where the in-
strument was executed through a telephone message from his
partner, Mr. Shaw; he had very little conversation with the
decedent; he may have talked casually with him about elec-
Estate of Spangler. 27
tricity at some time, but on the morning of the daj^ that the
paper was signed he had no conversation with him only to in-
quire after his health ; the decedent did not ask the witness
any questions, nor did the witness ask any questions of him,
except to ask him how he was ; the witness was present prob-
ably about an hour altogether, and all that he was doing was
trying to dry his feet at the fire, having become wet on the
way. Mr. Bodfish was there when the witness arrived; the
witness was about to leave just after he asked him how he
was, but Mr. Bodfish asked him to stay and witness the will,
which he was then writing. The witness did not visit the
deceased when he was at the home of the inebriates, nor was
he present at the time he was committed to Napa, and did
not know anything about those circumstances, and as witness
never heard the man 's sanity questioned, and did not see any-
thing particularly wrong about his mind, he concluded that
the decedent was all right, and he based his opinion upon
these premises ; but witness was not an expert, and it never
entered his mind that decedent was all wrong. Clearly, ]\Ir.
Kennedy erred in his opinion of the mental condition of the
decedent. The premises upon which he proceeded were quite
insufficient to justify the conclusion that the decedent was
sane, and he does not positively so declare ; he simply assumed
the sanity because he had never heard anything to the con-
trary and saw nothing particularly wrong about the man. It
is unnecessary to enter into a minute analysis of the testi-
mony for the contestants. It is sufficient to refer to the testi-
mony as given in the transcript, much of which is of such
a character that it would be neither palatable nor profitable
to expose it in this opinion.
The following is, I think, a correct summary of the con-
duct, condition and record of Daniel B. Spangler, the dece-
dent : When he was a young man he became insane and had
to be confined in a straight-jacket for six months; his brother
died while insane ; he had a cousin who was insane ; he em-
braced spiritualism a few years prior to his death ; he attended
meetings, would come home late at night ; on some occasions
he would complain of being too hot ; he would get up at late
hours of the night and go out into the yard and lie down with-
28 Coffey's ProBxVte Decisions, Vol. 2.
out any clothing, sometimes all night, and refused to go into
the house ; he would wake up at night screaming with fright,
and tell his wife that he thought Lynch was going to kill him
for something that took place between himself and Lynch 's
wife, and told his wife that he must leave the state for a w^hile
on account of the anticipated trouble with Lynch.
He voluntarily separated from his wife when he was taken
sick, there being no cause therefor, and took up his residence
in a lodging-house ; told his acquaintances that he had struck
something new, that he had received a communication from
Judge Templeton (who had been dead for some years) to
build a wagon of peculiar style to travel with in the country,
by which he would make $1,000 per month ; he told the physi-
cians who attended him that he was being treated by mediums
and spirits of a deceased person ; he actually built the wagon
at an expense of $800; he tried to extract one of his teeth
with his fingers; he claimed to be heavily charged with elec-
tricity, tried to throw it off and communicate it to others by
rubbing one hand rapidly down his arm and then take hold
of the hand to give direct communication that way; he does
not believe the physician's statement about his disease, but
affirms that his gums are all honey-combed, and if he had a
chimney in one of his teeth he would be all right. He is for-
getful, and declares that he has taken medicine when he has
not taken it, and refused to be convinced even when shown
the box containing the medicine ; he refused to take medicine
until he received a communication to do so ; he closed his eyes
and told the person present to wait, he was getting a com-
munication from Judge Templeton ; he stated that Judge Tem-
pleton 's spirit had control of him; he says he is treated by a
certain woman, a medium, who tells him how much sexual
intercourse he must have to rid himself of surplus electricity,
he is restless, wandering in conversation, forgetful and sleep-
less; he refers to his favorite topic of conversation, spirit-
ualism and electricity, on all occasions; it takes the most
powerful opiate to quiet him ; and his physical condition is
failing rapidly, and his mental condition continually, and
there is no hope for improvement in either. In this condi-
Estate of Spangler. 29
tion he was taken to the house of ]\rr. ]\Iead on the seventh
day of February, 1887; his condition does not improve, bnt
continues to grow worse. A nurse is employed to attend him
during the night. He complains of being too warm, directs
the nurse to hold the bedclothing up so he can have what he
calls a free circulation of air. He then makes great effort to
relieve himself of electricity ; he refuses medicine until he can
get a communication whether to take it or not ; he removed all
his clothing and applied his person to the fire in a grate, de-
claring that his lungs had refused to pump air, and he must get
them in order to do so ; he refused to go to his bed until after
he had received a communication to go. He talks on the sub-
ject of electricity and spiritualism continually; he sleeps
but little and that sleep is a restless, muttering sleep. The
nurse is with him only about a week, after w^hich he is sent
to the home of the inebriates, where the same evidences of
insanity continue, and he is examined by the inquisitors in
insanity, and committed to the asylum for the insane, where
he died May 7, 1887, without any improvement or change in
his mental or physical condition.
With the cause of the decedent's insanity the court is not
concerned in this inquiry; it is the fact of insanity, from
whatsoever cause it did proceed, and that fact is here clearly
established. Dr. McLaughlin, who attended the deceased from
August to October, 1886, while he was at the Tremont House,
said he was there emaciated and suffering and weak ; in the
opinion of this doctor the decedent was insane ; he was trying
to drill a hole into one of his teeth and said that would cure
iiim, and other things of the same class. At the time the dece-
dent was examined on the charge of insanity he imagined him-
self a gasometer or an electrometer, on which account he
expected to be employed by the government, on the Coast
Survey. He was failing rapidly, especially mentally. Dr.
Jewell, superintendent of the home of inebriates, testified
that the decedent was insane while there. Dr. Castelhun, who
called the day the will was made, testified that the decedent
was very sick, that his brain was diseased and his mind was
influenced thereby, and that the cause of the disease of the
30 Coffey's Probate Decisions, Vol. 2.
brain was chronic alcoholism. These are professional physi-
cians of ability and experience and close observation of the
particular subject. They are more than ordinary experts;
they testify directly to phenomena observed by themselves,
aided by their special training to arrive at accurate results
and correct opinion, and they are amply corroborated by the
testimony of nine or ten other witnesses on the part of the
contestants, including Dr. Brown, the physician who attended
the witness at the Trenton House, up to February 18 to the
24, 1887 ; C. A. Bragdon, the nurse who attended him from
February 18 to the 24, 1887. and the others. The instru-
ment propounded as a will should itself be considered in con-
nection with other evidence. It is not clear at all to my mind
why the deceased should, in disposing of so small an estate,
divert from the natural ob.ject of his bounty, an aged and
afflicted wife, remitting her to her community rights.
In this case all legatees are strangers to the testator; there
is no reason given why they should be considered in prefer-
ence to the widow ; and there was especial reason why she
should be the recipient of his entire estate, because of her age
and infirmity. She had been his wife for twenty-five years,
and no reason appearing to the contrary for discarding her,
it was she, and not strangers, who should have his estate.
The decision now announced was the one which the court was
prepared to declare upon the submission of this cause, as was
clearly intimated to the counsel for the proponents; but for
the reason that the latter urgently asked of the court a studi-
ous consideration of the points presented by him and the au-
thorities supporting them, and a further review of the testi-
mony, the court has chosen to examine again and again the
evidence so subtly analyzed, and the argument so ably pre-
sented by the counsel for proponents ; but this reconsideration
and re-examination of evidence, authorities and arguments
serve solely to fortify the original opinion, orally intimated at
the conclusion of the trial, that the decedent, Spangler, at
the time he signed the instrument here propounded, and for
a long time prior thereto, and subsequently until he died in
the insane asylum, was mentally incapable of making a will ;
Estate of SPx^ngler. 31
and the instrument here propounded should be and it is here-
by denied probate.
Let an order be entered accordingly.
The Internal Evidence of a will itself may be of great importance
as indicating the testator's mental condition and soundness of mind:
Estate of Dolbeer, 149 Cal. 227, 86 Pac. 695. "If the testamentary
disposition be in itself consistent with the situation of the testa-
tor, and in congruity with his affections and previous declarations;
if it be such as might have been naturally expected from one so
situated, this is in itself rational and legal evidence of no small
weight to testamentary capacity, whilst the reverse will alone fur-
nish occasion of doubt, demanding evidence to refute it. The ra-
tionality of the act goes to show the reason of the person": Stewart
V. Lispenard, 26 Wend. 2.55, 313, per Senator Verplanck, approved in
Estate of Shafter, 35 Colo. 578, 117 Am. St. Eep. 216, 85 Pac. 688,
6 L. R. A., N. S., 575.
A Belief in Spiritualism is no evidence of insanity, although clearly
one may be a monomaniac on that subject, just as he may be on any
other: Connor v. Stanley, 72 Cal. 556, 1 Am. St. Rep. 84, 14 Pac.
306; Estate of Spencer, 96 Cal. 448, 31 Pac. 453; Owen v. Crumbaugh,
228 111. 380, 119 Am. St. Rep. 442, 81 N. E. 1044; Buchanan v. Pierie,
205 Pa. 123, 97 Am. St. Eep. 725, 54 Atl. 583; Orchardson v. Cofield,
171 111. 14, 63 Am. St. Rep. 211, 40 L. R. A. 256, and note to People
V. Hubert, 63 Am. St. Rep. 91,
A Will is not Invalid Because It may Appear Unwise, Unjust, or
unnatural in its provisions, for the law does not make the right of
testamentary disposition dependent upon its judicious exercise.
Nevertheless, the injustice or unnaturalness of a will is a circumstance
which may be considered with other evidence tending to show, on
the part of the testator, an unbalanced mind or a mind susceptible to
or swayed by undue influence: 1 Ross on Probate Law and Practice,
64.
32 Coffey's Probate Decisions, Vol. 2.
Estate of ALMIRA W. WHEELER, Deceased.
[No. 6264; decided February 9, 1888.]
Reference of Claim — Objection to Evidence. — Assuming that sec-
tion 1880, Code of Civil Procedure, applies to the case of a referred
claim against a decedent's estate, yet unless the objection to the
claimant's evidence is taken before the referee, it cannot be urged
afterward.
Reference of Claim — Sufficiency of Evidence. — Where a claim pre-
sented against a decedent's estate is, by stipulation of the execu-
tor and claimant, referred to a designated person ' ' to ascertain its
accuracy and report the same," and, upon the reference, the ref-
eree is notified by the executor that he has no testimony to offer
and does not desire to be present at the examination, and the claim
is fully substantiated by the oral testimony of the claimant, and bills
and memoranda, and witnesses in corroboration of his evidence, an
objection to the referee's report on the ground that the claimant's
evidence was inadmissible under section 1880, Code of Civil Proce-
dure, cannot be sustained.
E. N. Deuprey, for claimant.
Wilson & Wilson, for executor, opposing the claim.
COFFEY, J. Pursuant to an agreement in writing be-
tween Ben Morgan, executor, and Edgar W. Hawkins, claim-
ant, under section 1507, Code of Civil Procedure, and ap-
proved by the court, this claim was referred to Edmund
Tauszky, a court commissioner, on September 18, 1887. Af-
terward, to wit, on October 18, 1887, the report of the referee,
recommending the allowance of the claim, was filed in this
court, and on November 17, 1887, exceptions and objections
were filed on behalf of the executor to the report and to the
recommendation, upon the ground that the evidence support-
ing the claim, being that of the claimant, was inadmissible
under subdivision 3, section 1880, Code of Civil Procedure,
which reads:
["The following persons cannot be witnesses . . . ."].
"Parties or assignors of parties to an action or proceeding, or
persons in whose behalf an action or proceeding is prosecuted
against an executor or administrator, upon a claim or demand
Estate of "Wheeler. 33
against the estate of a deceased person as to any matter of
fact accruing before the death of such deceased person."
Assuming the applicability of the section cited to such a
case as this, it is my opinion that the objection is not now in
order. No objection was made at the hearing. The testi-
mony was given without any opposition or objection from the
executor, or by anyone representing him.
The agreement to refer this claim is as follows, omitting
the title of court and proceeding :
"Whereas, Edgar W. Hawkins has presented a claim
against the above-entitled estate, amounting to the sum of
$897 ; and, whereas, the executor of said estate, Ben Morgan,
and said Hawkins have agreed to refer said claim to Edmund
Tauszky, Esq., to ascertain its accuracy and report the same
to this court, we hereby agree to the making of an order by
the court, referring said claim to said Tauszky.
"BEN MORGAN,
"Executor of the Will of A. W. Wheeler, Deceased.
"E.W.HAWKINS,
"Claimant."
Under this approved agreement, testimony was taken by
the referee on behalf of the claimants, and three days were
occupied in the work of the reference. The executor notified
the referee that he had no testimony to offer, and did not
desire to be present at the examination of the claimant's wit-
nesses. The claim presented was an alleged balance due to
claimant for money loaned, and paid out and expended on
behalf of the deceased, at her request, by the claimant, be-
tween October, 1886, and May, 1887. The claimant had a
right to expect that, if objection were contemplated, it would
be offered at the hearing; and it seems to me that he had a
right now to claim that the executor is estopped from urging
an objection which was not suggested before the referee.
The referee says that every item of the claim is substan-
tiated by the oral testimony and the bills and the book of the
claimant, and that his testimony has not been contradicted.
The referee reports that the claimant establishes that he loaned
Prob. Dec, Vol. II— 3
34 Coffey's Probate Decisions, Vol. 2.
to the decedent the sum mentioned in the claim, and paid out
the other amounts contained therein at her request, and he
has only received the sum of two hundred (200) dollars on
account of such loans and disbursements ; that there is no rea-
son to doubt the truth of the statements of the claimant, and,
in the absence of all contrary evidence, nothing remains for
the referee to do but to recommend the claim to be allowed as
presented, which he accordingly does by his report. In my
opinion the referee's report should be confirmed, and it is so
ordered.
Estate of ELIZABETH R. CHAPPELLE, Deceased.
[No. 3495; decided Au^ist 28, 1884.]
Trustee — Accounting to Probate Court. — One who is the trustee
of a person since deceased, under an express trust voluntarily as-
sumed in the lifetime of the decedent, cannot, by virtue of the Code
of Civil Procedure, section 1461, be ordered to account before the
court wherein the administration of the decedent's estate is pend-
ing.
In the above-entitled matter, John P. Poole, the adminis-
trator of the estate, presented to the court, and filed on Au-
gust 5, 1884, a petition showing that the decedent, on January
15, 1882, placed in trust with H. L. Hutchinson, of San Fran-
cisco, the sum of $5,200; that the petitioner had in his pos-
session a written instrument showing this, and annexed to the
petition as an exhibit a copy of the aforesaid instrument,
which was in the following language :
"San Francisco, Januarj'^ 15, 1882.
"Received of Mrs. Lizzie R. Chappelle, fifty-two hundred
dollars ($5,200), in trust, and for investment for her account.
"H.L.HUTCHINSON."
The petition prayed that the said Hutchinson be ordered
to make answer, and render an account. Citation was
issued upon the petition, and thereafter an answer was filed
by Hutchinson, setting up that the petition and citation were
Estate of Chappelle. 35
insufficient to justify a grant of the relief prayed for. Upon
the hearing of the matter, counsel for Mr. Hutchinson moved
to dismiss the petition, on the ground that the proceeding was
not authorized by law ; that the petition was based on section
1461 of the Code of Civil Procedure, which section referred
to a party holding property in trust for an administrator or
executor ; but that this could not apply to one receiving money
from a decedent in his lifetime. For the petitioner it was
claimed that, as Hutchinson held the money in trust for Mrs.
Chappelle in her lifetime, he became a trustee for her admin-
istrator upon the latter 's appointment. The court, after hear-
ing argument, suggested that the proceeding was not a proper
one ; subsequently, on August 28, 1884, a written dismissal of
the petition was filed by the attorneys for the administrator.
The following is the text of section 1461, Code of Civil Pro-
cedure, viz. :
"The Superior Court, or a Judge thereof, upon the com-
plaint, on oath, of any executor or administrator, may cite
any person who has been intrusted with any part of the es-
tate of the decedent to appear before such Court, and require
him to render a full account, on oath, of any moneys, goods,
chattels, bonds, accounts, or other property or papers belong-
ing to the estate, which have come to his possession in trust
for the executor or administrator, and of his proceedings
thereon ; and if the person so cited refuses to appear and ren-
der such account, the Court may proceed against him as pro-
vided in the preceding section" (which section provides that
a party may be committed to jail for failure to respond to a
citation).
Thornton & Merzbach, for petitioner.
T. C. Coogan, contra.
COFFEY, J. Petition dismissed.
36 Coffey's Probate Decisions, Vol. 2.
Estate of ROBERT JOYCE TIFFANY, Deceased.
[No. 5317; decided May 22, 1888.]
Will Contest. — A Contest of Probate of a Will Partakes of the
Nature of a civil action; its issues and results being determined and
applied in like manner.
Special Administrator. — Two Items for Expert Witnesses were in
this case disallowed in the account of a special administrator.
A Special Administrator is Without Power to Incur Expense in
and about a will contest.
A Special Administrator has no Authority to Make Expenditures
as to claims having their origin in decedent 's lifetime.
Special Administrators are Entitled to Counsel in the Administra-
tion of their trust.
Special Administrators are Entitled to Compensation for services
performed in discharging the duties of their trust.
Will Contest — Allowance for Expenses. — There is a Distinction Be-
tween a Successful and an unsuccessful contest of a probate of will,
as to the proponent's right to expenses incurred. Where a purported
will has been refused probate, and so declared invalid, no rights or
duties thereunder can be pretended.
Will Contest — Allowance for Expenses. — There is no warrant in
the statute for an allowance of expenses incurred by the proponent
of a purported will which has been refused probate, and jurisdic-
tion in such matters cannot be sought for outside the code.
Will Contest — Costs and Counsel Fees. — Section 1332, Code of Civil
Procedure, as to costs of a probate contest, if including counsel fees,
is applicable solely to contests after probate first had, and does not
embrace a contest upon the original propounding of a purported will.
Coogan & Foote, for the heirs, contestants.
E. N. Deuprej^ for the proponent of purported will.
COFFEY, J. 1. A contest of the probate of a will par-
takes of the nature of a civil action; and the issues and re-
sults are determined and applied in like manner: Code Civ.
Proc, sees. 1033, 1716.
With the exception of the two items — Expert, $27.50, and
Expert, $50 — the bill should be allowed ; and, as to those two
items, there should be deducted therefrom in each case all but
one day's witness fee.
Estate op Tiffany. 37
2. The exceptions to the account of the special adminis-
trators should be allowed. Section 1415, Code of Civil Pro-
cedure, does not authorize the allowance of expenses incurred
in and about a will contest, nor claims which had their origin
in the lifetime of the decedent. In the Estate of Cynthia
Hoff Shillaber, Deceased (No. 4015, Superior Court, Probate,
Coffey, J.), this court has given its views upon the powers
and duties of special administrators, and also in the Estate
of Hannah M. Sackett (No. 6775, Superior Court, Probate,
Coffey, J.) The special administrators are entitled to the aid
of counsel to assist them in discharging their special functions,
as prescribed in section 1415, Code of Civil Procedure, and to
reasonable compensation for their own services.
3. In the matter of the Estate of Gershom P. Jessup (No.
5681, Superior Court, Department 9, Probate) this court
had occasion to consider, in connection with the account of
the executors, the brief filed by Mr. Deuprey upon this appli-
cation, the subject matter in both cases being of a cognate
character. I am entirely satisfied with the correctness of
the conclusion reached by the court in that case. The fallacy
of the argument for the applicant in this case lies in the as-
sumption that a person named in a will as executor, who fails
to establish the validity of the instrument, is, with reference
to the subject matter of this application, in as good a position
as a proponent who succeeds. There is an important distinc-
tion and difference between the two cases, and I have discov-
ered no case in the reports of this state which sustains the
proposition presented by the applicant here, where the pro-
ponent has failed in the first instance to establish as a will
the paper which is a basis of his claim. Here and elsewhere
the contrary has been determined as the correct legal prin-
ciple. The proponents here never have been executors. The
paper upon which they predicated their petition to be so ap-
pointed has been declared invalid, and consequently their
nomination therein was and is void ; and upon an invalid
instrument and a void nomination manifestly no right can
attach nor any claim accrue. In Mumper's Appeal, 3 Watts
& S. 443; in Royer's Appeal, 13 Pa. 574; in Andrew's Exec-
utors V. His Administrators, 7 Ohio St. 143; and in Leaven-
38 Coffey's Probate Decisions, Vol. 2.
worth V. Marshall, 19 Conn. 408, the doctrine has been de-
clared in substantial conformity with the views herein ex-
pressed. But, even if I were doubtful of the application of
those cases to this subject matter, I should be bound by the
statute, after a full examination, to sustain the demurrer, for
the reason that I have found nowhere in the code any war-
rant to entertain an application of this kind, and jurisdiction
in such matters is not to be sought elsewhere. Section 1332,
Code of Civil Procedure, even if its terms could be enlarged
to include counsel fees, refers expressly to a contest after pro-
bate where the probate is revoked, and in the cases decided by
me which are cited by applicant (Estate of Chittenden, 1
Cof. Pro. Dec. 1, and Estate of Fisher, 1 Cof. Pro. Dec. 97),
the wills had been admitted to probate.
Demurrer sustained.
Where There is a Successful Contest of a will before probate, but
the legatees or executor acted in good faith and upon reasonable
grounds in proposing the will for probate, the court may, in its dis-
cretion, allow the unsuccessful proponents their costs in attempt-
ing to establish the will, and make the same a charge against the
estate: Estate of Olmstead, 120 Cal. 452, 52 Pac. 804. On the other
hand, when there has been an unsuccessful contest against the ad-
mission of a will to probate, the court may allow the defeated con-
testant his costs to be paid out of the estate, but it will exercise
its discretion in his favor in this respect only in rare cases, and
when he has acted in the utmost good faith in waging the contest:
Estate of Bump, 152 Cal. 271, 92 Pac. 642.
The Fees and Expenses of Contests after the probate of a will
must, under the statutes of most states, be paid by the contestant,
if the probate is affirmed; but if the probate is revoked, the costs
must be paid by the party who resisted the contest, or out of the
property of the decedent, as the court directs: Cal. Code Civ. Proc.
1332; Ariz. Eev. Stats. 1627; Idaho Eev. Stats. 5323; Mont. Code
Civ. Proc. 2365; Okl. Eev. Stats. 1512; S. D. Pro. Cd. 60; Wyo.
Eev. Stats. 4612. A court has no authority, before the admission of
a will to probate, to appropriate the funds of the estate to aid
either the proponent or the contestant. Neither has it authority,
while a contest to revoke the probate is still pending and undeter-
mined, to allow the executor, in his annual account, for expenditures
in defending the will. But when a contest after probate has been
successfully waged, the law makes it the duty of the court to de-
termine whether the costs shall be paid by those who resisted th©
revocation or out of the assets of the estate; and if the court, in the
Estate of Burns. 39
exercise of its discretion, decides that the costs shall not be paid
out of the estate, its determination will not be reversed on appeal.
An executor who is unsuccessful in resisting the revocation of a
probate is not entitled, as a matter of right, to the costs he has in-
curred, but the court is vested with discretion" to determine whether
he or the estate shall bear them: Estate of McKinney, 112 Cal. 447,
44 Pac. 743; Henry v. Superior Court, 93 Cal. 569, 29 Pac. 230; Es-
tate of Dillon, 149 Cal. 683, 87 Pac. 379.
Estate of ELI JASPER BURNS, Deceased.
[No. 6426; decided June 30, 1880.]
Reference of Claim — Manner of Conducting. — Where an executor
or administrator doubts the correctness of a claim presented to him,
and a reference is had pursuant to section 1507, Code of Civil Pro-
cedure, the reference must be conducted as provided in section 1508
and sections 638-645, Code of Civil Procedure.
Reference of Claim — Testimony Against Executor. — The reference
of a doubtful claim is "a proceeding prosecuted against an execu-
tor or administrator upon a claim or demand against the estate of a
deceased person," and subdivision 3, section 1880, Code of Civil Pro-
cedure, applies, so that the claimant prosecuting cannot testify "as
to any matter of fact occurring before the death of such deceased
person."
M. T. Moses, for estate.
Geo. F. Hoeffer. for claimant, contra.
COFFEY, J. Construction of sections 1507 and 1508,
Code of Civil Procedure, 638, 645, Code of Civil Procedure,
and section 1880, subdivision 3, same code. Sections 1494,
2002, 2009, 2019, Code of Civil Procedure, considered in con-
nection with affidavit to claim.
The reference herein was pursuant to section 1507, Code of
Civil Procedure, and the rule for conducting such reference
is found in the next section, 1508, Code of Civil Procedure,
and in sections 638 to 645, of the same code. Hence it fol-
lows that subdivision 3 of section 1880 applies, incapacitating
the claimant from testifying in his own behalf. This is "a
40 Coffey's Probate Decisions, Vol. 2.
proceeding prosecuted against an executor or administrator
upon a claim or demand against the estate of a deceased per-
son," and the claimant prosecuting may not testify "as to
any matter of fact occurring before the death of such de-
ceased person."
I have read the brief of counsel for claimant with care,
but it fails to enforce conviction that his view is correct. With
equal care I have considered the opposing argument, and be-
lieve it states the law correctly. The testimony of claimant
having been objected to in proper time and form, must be
disregarded.
-to"^
IS AN AFFIDAVIT TO A CLAIM EVIDENCE?
Counsel for claimant devotes much space to an attempt to
show that the affidavit required by section 1494, Code of Civil
Procedure, to be made in support of a claim against an es-
tate, is evidence tending to prove the validity of such claim.
Even if he be correct in this position, what has it to do
with the only question to be determined here, namely: Did
the referee err in sustaining the objection to the testimony
of the claimant Manheim? And if the claim, with such affi-
davit annexed, is or may be evidence, it does not appear that
claimant oifered it in evidence before the referee, or that the
referee struck it out, or disregarded it, or refused to receive
it.
Counsel endeavors to draw a distinction between the veri-
fication of a complaint and the verification of a claim against
an estate of a deceased person, to the advantage of the latter.
But as a complaint may be good without verification, and a
claim against an estate never can be, the advantage is surely
with the claim, and the law has given it greater dignity and
placed it upon higher ground. A complaint is a statement
of a plaintiff's claim; but is the complaint, whether verified
or not, evidence upon the trial of that claim ?
It may be that
THE AFFIDAVIT IS TO SOME EXTENT EVIDENCE.
So is the written claim itself. But they are only evidence
to be addressed to the executor or administrator. It cannot
Estate of Burns. 41
be successfully contended that either of them would be com-
petent evidence of the validity of such claim on a trial in
which such claim was disputed. •
The administrator represents the creditors, and the pro-
vision requiring that claims be sworn to is simply to afford
greater protection to the heirs and to furnish better means
of preventing fictitious and unconscionable demands being
made against the estate by claimants and paid by their repre-
sentative, the administrator.
If it be true, as asserted by claimant's counsel, that prior
to the act of March 30, 1872, such claims did not have to
be sworn to, it is difficult to see that that act had any other
purpose than the protection of estates just mentioned. Surely
the legislature did not intend that the addition of an affidavit
to what was before incompetent evidence should make it com-
petent evidence upon the trial of disputed claims. A change
in the long-settled and well-established rules of evidence is not
to be made by inference.
THE TESTIMONY OF WITNESSES
Is taken in three modes: 1. By affidavit; 2. By deposition;
3. By oral examination : Code Civ. Proc, sec. 2002.
In all cases other than those mentioned in section 2009,
where a written declaration under oath is used, it must be by
deposition: Code Civ. Proc, sec. 2019.
Section 2009, Code of Civil Procedure, provides that "an
affidavit may be used to verify a pleading or a paper in a
special proceeding, to prove the service of a summons, ....
and in any other case expressly permitted by some other
provision of this code. ' '
If counsel for claimant contends that there is any express
provision of the code making the affidavit to a claim against
the decedent evidence or testimony of the legality of such
claim, he has failed to point it out.
COMPETENCY OF CLAIMANT AS A WITNESS.
Was the claimant, David Manheim, a competent witness
upon the trial before the referee of the validity of his claim ?
42 Coffey's Probate Decisions, Vol. 2.
The answer to this question depends upon the construction
to be given sections 1880, 1507 and 1508 of the Code of Civil
Procedure.
A statute is to be given such a construction, if possible, as
will give it effect.
The effect and consequences and the reason and intent are
to govern in the construction of statutes.
Is this an "action" or "proceeding," and is it against an
administrator, within the meaning of section 1880, Code of
Civil Procedure?
REFERENCES UNDER THE CODE.
This case is a reference made under section 1507, Code of
Civil Procedure. It is a legal proceeding, having for its sole
authority that section of the Code of Civil Procedure. The
consent of the claimant and the administrator extends only
to the method of the trial of the issue between the parties, the
same as in other cases of reference and as in cases of arbitra-
tion. Section 638 and 1281, Code of Civil Procedure et seq.,
also section 1508, Code of Civil Procedure: "The same pro-
ceedings shall be had in all respects .... as in other cases
of reference."
As it is a reference under the code, it must be subject to
the provisions of the code.
It must be a "judicial remedy," for judicial remedies are
such as are administered by the courts of justice or by judicial
officers, empowered for that purpose by the constitution and
statutes of this state : Code Civ. Proc, see. 20.
DIVISION OF JUDICIAL REMEDIES.
These remedies are divided into two classes: 1. "Actions;
and 2. Special proceedings": Code Civ. Proc, see. 21,
AN ACTION.
"An action is an ordinary proceeding in a court of justice,
by which one party prosecutes another, for the enforcement
or protection of a right, the redress or prevention of a wrong,
or the punishment of a public offense": Code Civ. Proc.,
sec. 22.
• Estate of Burns. 43
a special proceeding.
''Every other remedy is a special proceeding": Code Civ.
Proc, sec. 23.
Now. this reference is a proceeding or remedy provided for
in the same statute in which we find these provisions; so it
must be either an action or a special proceeding.
It is part of the duty of an administrator, in winding up
an estate, to allow or pay no claim against it which is not
a legal, bona fide and existing indebtedness; otherwise he
would not be responsible to the heir (as he is) for claims un-
lawfully allowed and paid by him. To protect himself in
this respect the administrator must, before he allows a claim,
be satisfied of its "correctness." When he is not satisfied
of its correctness it is his duty to reject it. But to facilitate
the winding up of estates, to save the loss of time and ex-
penditure of money incident to ordinary litigation, the stat-
ute (Code Civ. Proc, sec. 1507) provides that, where the ad-
ministrator is not satisfied of, or, to use its own stronger
words, "doubts" the correctness of any claim, he may agree —
to do what 1 to the trial by a referee, instead of by the court,
in the ordinary way of — what? not the amount due on an ad-
mitted claim, but
"the matter in CONTROVERSY.'*
Section 1508 makes it the duty of the referee to "hear and
determine the matter. ' ' The only effect and purpose of these
provisions is to change the tribunal or judicial officer before
whom the trial of the matter shall be had.
No question has been raised as to the constitutionality of
sections 1507 and 1508. If there had been, it would be the
duty of the court to construe them, if possible, so that they
might stand. "No person can be deprived of his life, lib-
erty or property without due process of law. ' ' The court may
enter judgment upon the report of the referee, and such judg-
ment "shall be as valid and effectual, in all respects, as if
the same had been rendered in a suit commenced bv ordinarv
process." Code Civ. Proc, sec. 1508.
44 Coffey's Probate Decisions, Vol. 2.
how the statute regards this proceeding.
Observe that the statute seems to regard this proceeding
as a "suit"; if not, why were the words ''commenced by
ordinary process" added in the clause last cited? If this
proceeding was not to be considered as a "suit," that clause
would have been complete if it had simply read "such judg-
ment shall be as valid as if the same had been rendered in
a suit."
This seems an appropriate place to refer to counsel's re-
marks relative to the process in actions and proceedings. He
says that in the one case defendant is brought in by means of
a ' ' summons, ' ' and in the other by "an order to show cause. ' '
If this were strictly true, it would be immaterial in the pres-
ent matter ; but it is not true.
In the matter of contasted elections — special proceedings —
the defendant is brought in by a citation: Code Civ. Proc,
sec. 1119.
In "confession of judgment" — a special proceeding — no
process is issued: Code Civ. Proc, sees. 1132-1135.
In "submitting a controversy without action" — a special
proceeding — no process is issued: Code Civ. Proc, sec 1138
et seq.
In "forcible entry" — special proceedings — a summons is
issued to bring the defendant into court.
So, also, is a summons used in proceedings for the enforce-
ment of liens: Code Civ. Proc, sees. 1190, 1191.
In the punishment of contempts not committed in the im-
mediate view and presence of the court or judge — a special
proceeding — a warrant of attachment may be issued : Code
Civ. Proc, sec 1212.
In the "voluntary dissolution of corporations," publication
of a notice is resorted to: Code Civ. Proc, sec. 1230.
In proceedings for the exercise of the right of eminent
domain, a summons is issued : Code Civ. Proc, sec. 1243.
In the matter of ascheated estates, a summons is issued :
Code Civ. Proc, sec. 1269.
Notice of applications for the change of names is given by
publication : Code Civ. Proc, sees. 1276, 1277.
Estate of Burns. 45
In arbitrations (Code Civ. Proc, sec. 1281 et seq.), a closely
analogous proceeding to the one had in this case, no process
is used for bringing in the parties. And the reason why none
is used either in the matter of arbitrations, references" or
agreed cases, is obvious, that no process is necessary to bring
in a party who by his agreement has already brought himself
before the judicial officer or tribunal.
The object of process is to get the parties before the court —
why issue it when they are already there ? And being there,
whether voluntarily, or in obedience to process, the court or
officer, if possessing jurisdiction of the subject matter, can
render a judgment "valid and effectual" and binding upon
the parties.
As before remarked, the sole effect of the agreement to
refer by the administrator and claimant was to change the
tribunal or judicial officer before whom the trial of the dis-
puted question was to be had. It did not change the status
of the parties. They were still adverse. The claimant re-
mained the plaintiff, and the administrator remained the de-
fendant, which, being so, made this ' ' an action or proceeding
against an administrator." Natural reason must and does
produce this conclusion, and our supreme court have re-
peatedly in their decisions, either in effect or in express terms,
so held in cases of reference and arbitration.
In Tyson v. Wells, 2 Cal. 130, the court said: "The parties
agreed in writing to submit the matter in dispute between
them to certain arbitrators, and the agreement was filed
among the papers in the case in the court below. In addi-
tion an order of court was granted, by consent of the parties,
referring the suit to the same person selected by their agree-
ment. Now, whether we view the case as an arbitration at
common law, or a reference under the statute, in either case
the decision must be the same ; because we hold that the stat-
ute is in aid of the common law remedy by arbitration, and
in no respect alters its principles The court will not
disturb the award of an arbitrator, or report of a referee,
unless the error which is complained of, whether it be of law
or fact, appears upon the face of the award. And in the
case of a report of the referee our statute does not alter or
46 Coffey's Probate Decisions, Vol. 2.
interfere with this rule. It declares that the decision may
be excepted to, and reviewed in like manner as if tried by the
court. The clear meaning of this is that exceptions must
be taken to the rulings of the referee during the process of
the trial in the same manner they are taken before a court ;
and then such exceptions must be embodied in the report of
the referee, or made a part of his report, by being properly
certified by him."
A trial before a referee is to be conducted in the same
manner as before a court : Muldrow v. Norris, 2 Cal. 74, 56
Am. Dee. 313 ; Goodrich v. Mayor etc. of Marysville, 5 Cal.
430; Phelps V. Peabody et al., 7 Cal. 50.
A referee has all the powers of a judge in relation to the
trial: Plant v. Fleming et al., 20 Cal. 93.
In Edwards on Referees, page 114, it is said: ''The rules of
evidence are the same before referees as before a jury. They
come in the place of a jury. Improper testimony must not
be heard before them, any more than before a court at the
circuit: Every v. Merwin, 6 Cow. 364."
And again, at page 115, Edwards says: "A husband and
wife cannot give evidence for or against each other
As the law of the state of New York now stands, interest
in the event of an action will not debar a person from being
a witness : Code, sec. 398. And a party to an action or pro-
ceeding may be examined as a witness, in his own behalf,
the same as any other witness, but such examination shall not
be had, nor shall any other person, for whose immediate ben-
efit the same is prosecuted or defended, be so examined un-
less the adverse party or person in interest is living ; nor when
the opposite party shall be an assignee, administrator, exec-
utor or legal representative of a deceased person": Id., p. 116.
Eyres v. Fennimore, 2 Penn. 932, was a case where the
referee admitted the testimony of one of the parties — par-
ties being then incompetent witnesses — and the court set
aside the report of the referee on that ground.
Counsel for claimant constantly refers to this proceeding
as the ''presentation of a claim," and seems determined to
divert attention from its real status by ringing the changes-
upon that phrase.
Estate of Burns. 47
It must sufficiently appear from what has been said that
that condition of the matter had practically ceased when the
administrator had in effect rejected the claim, and with the
consent of the claimant agreed that it became a litigated mat-
ter, and be referred to a referee for trial. The counsel as-
serts that it is an "utter absurdity that the presentation of
a claim is either an action or proceeding." But the learned
counsel has not undertaken the task of defining what it is,
if not an action or proceeding. It is a remedy — a something^
— that is provided for in the Code of Civil Procedure, and
that statute says that every remedy is either an action or a
special proceeding. And the supreme court of California has
in rather terse language given us this decision which may be
of some applicability here: "The presentation of the claim
to the administrator is the commencement of a suit upon it"r
Beckett v. Selover, 7 Cal. 241, 68 Am. Dec. 237.
But there is one thing in which the counsel and the court
agree. It is this: "The law not only empowers but requires
the executor or administrator to either allow or reject the
claim." Following this up, he should have added that in
this case the administrator did not allow the claim because he
did not so indorse it, but that the administrator did in effect
reject the claim because he did not allow it, and because that
is made by statute presumptive evidence of rejection, and be-
cause he entered into an agreement with the claimant that
there should be a trial had before a referee of the question
as to whether or not any claim existed in favor of David Man-
heim against said administrator.
Counsel enters into the discussion of a number of ques-
tions which have no bearing upon this case. So far as the
determination of the present motions is concerned, it makes
no difference whether the claimant would have the right to
bring a suit in the ordinary method upon his claim within
ninety days after the confirmation of the referee's report or
not. It is immaterial in this matter whether the rejection
of a claim by an administrator is a judgment or not, or
whether his allowance of a claim is a judgment or not.
There can be no doubt, however, that where parties have hy
agreement submitted a controversy to a referee for trial, as.
48 Coffey's Probate Decisions, Vol. 2.
in this case, that the judgment of the court entered upon the
report of the referee is a judgment in fact as well as in
name, for the statute expressly so declares.
". . . . And the judgment of the court thereon shall be
as valid and effectual, in all respects, as if the same had been
rendered in a suit commenced by ordinary process" : Code Civ,
Proc, sec. 1508.
A judgment against an administrator is of no greater
dignity than an allowed claim. The code plainly places them
upon the same footing: Code Civ. Proc, sees. 1497, 1504.
Now, ought not this to be decisive of this controversy ? Sec-
tion 1508 provides for the entry of a judgment upon the
report of a referee, and further provides that such judgment
"shall be as valid and effectual in all respects as if the same
had been rendered in a suit commenced by ordinary process."
What is a judgment? The same Code of Civil Procedure, in
which we find this provision for the entry of a judgment with
a statement of its effect, furnishes a definition of what a judg-
ment is, and it may be assumed that it is unnecessary to cite
authorities to the point that where a term is defined in a stat-
ute the use of that term in the same statute is in the sense
of such definition.
Section 577, Code of Civil Procedure, thus defines a judg-
ment:
WHAT IS A JUDGMENT?
"A judgment is a final determination of the rights of the
parties in an action or proceeding."
Note the fact that these words "parties" and "an action
or proceeding" are the identical words used in subdivision 3
of section 1880, Code of Civil Procedure.
Now, in view of these facts, can the conclusion be avoided
that the legislature intended, by providing in section 1508 for
the entry of a judgment on the report of a referee, that the
proceedings on a reference should be regarded as "an action
or proceeding" of the kind referred to in sections 577 and
1880?
Further, there is here, in section 1508, provision for the
entry of a judgment. A judgment must be against some one
Estate of Burns. 49
and in favor of some one — that is, there must be parties. If
this reference is not to be regarded as an action or proceed-
ing for the enforcement of a legal remedy, the entry of a
judgment upon it — a judgment "as valid and effectual in all
respects as if rendered in a suit commenced by ordinary pro-
cess" — is the entry of a judgment in neither of the only two
kinds of judicial remedies provided by the law of our state
for the enforcement or protection of a right or the redress or
prevention of a wrong (Code Civ. Proc, sees. 20-23), and
consequently deprives some person of his property without
due process of law. Will this court hold section 1508 to be
unconstitutional when its constitutionality with less violence
to its language may be upheld ?
But. as before remarked, the constitutionality of this sec-
tion has not been questioned. Can it be questioned, or can
it arise in this particular case? Are not all of the parties,
by their agreement of arbitration or reference, estopped from
questioning the statute under which they have contracted?
A statute which provided for the entry of a judgment
against a person without a trial would be in violation of our
constitution. The proceedings before the referee must be re-
garded as the trial, "as in other cases of reference."
Concerning counsel's criticism upon the following language
found in section 1508, Code of Civil Procedure: "The court
may remove the referee, appoint another in his place, set
aside or confirm his report, and adjudge costs, as in actions
against executors or administrators," that this legislature
could not have intended that the proceedings upon the claim
and reference should be regarded as an "action" because "a
thing cannot be compared with itself, ' ' a few words only need
be said. It might be argued that the word "other" is to
be applied between "in" and "actions" in the clause just
quoted, if it were necassary to do so, for forcible reasons can
be given for such a reading. In a very strict sense, counsel
is probably correct in his assertion that a thing cannot be
compared with itself; but it is a rule which is so commonly
disregarded, and so many instances of its violation may be
Prob. Dec, Vol. II — 4
50 Coffey's Probate Decisions, Vol. 2.
found in statutes, that a failure to adhere to it is in prac-
tice given very little weight.
According to our construction of the above-quoted clause,
the intention of the legislature was that the proceedings un-
der sections 1507 and 1508 should be regarded as a "pro-
ceeding"; and for this reason: Said sections are merely de-
claratory of the common law, which provided that "executors
and administrators have by power of their office the right
to submit to arbitration matters regarding the estate under
their administration as a result of their power to bring and
defend suits": Am. & Eng. Ency. of Law, p. 647, citing 78
N. Y. 38, 34 Am. Rep. 500; 1 Barb. 519; 14 Tex. 677; 2
Conn. 691; 9 Allen (Mass.), 173; 4 Pick. 454; 6 Pick. 269;
16 Ala. 221; 21 Ga. 334; 1 Met. (Ky.) 117; 3 T. B. Mon.
256; 35 Me. 357; 1 Fair. (Me.) 137; 2 Fair. (Me.) 326; 6
Leigh (Va.), 62; 1 Brock. (U. S.) 228.
The Code of Civil Procedure of California has made spe-
cial provision for arbitrations (sections 1281-1290), and has
expressly designated them as "special proceedings." (See
the enumeration of special proceedings preceding section 1063,
Code of Civil Procedure.)
It ought to be remarked here that there is some difference
between the proceedings of a referee or arbitrator whose au-
thority proceeds solely from the consent of the parties, and
one whose authority comes from a judicial appointment. In
the case of the former greater latitude is indulged with re-
spect to the strict legal rules of procedure and of evidence.
"Where an arbitrator is to be regarded as an officer of
the court, and the arbitration is to be conducted upon legal
principles, he will generally not be allowed to admit incom-
petent evidence": 1 Am. & Eng. Ency. of Law, 680, and
cases cited. See, also, Edwards on Referees, 114, 115, be-
fore cited.
We believe that it sufficiently appears from what has been
already said that this is "an action or proceeding against
an administrator," within the meaning of section 1880, Code
of Civil Procedure.
Estate of Burns. 51
In addition to what has been said above, it may be proper
to remark that, "in the construction of a statute, the inten-
tion of the legislature" should be sought for and must gov-
ern: Code Civ. Proc, sec. 1859. Nor is section 1880 to
be given that strict construction asked for it by counsel.
"The rule of the common law, that statutes in derogation
thereof are to be strictly construed, has no application to
this code. The code establishes the law of this state respect-
ing the subjects to which it relates, and its provisions and all
proceedings under it are to be liberally construed, with a
view to effect its objects and to promote justice": Code Civ.
Proc, sec. 4. Were it otherwise, we incline to the opinion
that the application of counsel's request would operate rather
to his prejudice than to his advantage. It is not so long ago
that parties were incompetent as witnesses.
The enlarging provision of section 1879, Code of Civil Pro-
cedure: "All persons, without exception, otherwise than is
specified in the next two sections, who, having organs of sense,
can perceive, and, perceiving, can make known their percep-
tions to others, may be witnesses," is itself in derogation of
the common law, and the exceptions and saving clauses of
the following sections would be so construed as to embrace
all who could be reasonably brought within them. The ex-
ception provided for in subdivision 3 of section 1880 is an
express, though partial, saving of the old common-law rule
making parties incompetent as witnesses.
THE "spirit and REASON "
Of this subdivision, and the intention of the legislature in
enacting it, are plain and free from doubt. The object of
the law and the intention of the legislature were unquestion-
ably to protect heirs and the estates of deceased persons
against precisely such proceedings as were attempted in this
reference. This seems so apparent that we deem it unneces-
sary to enlarge upon it. If this be true, would the court be
justified in placing so strict and strained a construction upon
the language used as would practically deprive heirs of the
52 Coffey's Probate Decisions, Vol. 2.
protection intended to be given them by this law? Consider
the
"effects and consequence"
Of siieh an interpretation, especially under our probate law,
where the public administrator, having no special interest in
preserving estates, is given so great a preference in the right
of administration. Suppose the case of an administrator col-
luding with a claimant (and this is entirely hypothetical, and
without the least intention of intimating such a condition of
affairs in this case), whose claim he knows to be fraudulent,
to refer the claim to a referee, and upon such reference the
administrator makes little, or, in fact, no opposition to its
allowance, and the referee makes a report allowing the claim,
and the court, in the absence of any objection of the admin-
istrator, confirms the report, what redress has the heir? His
right to contest the claim on the settlement of the adminis-
trator's account, or any other recourse he may have against
the administrator, is practically no protection in the greater
number of cases, because there is no one living to contradict
the claimant.
For the foregoing reasons the report of the referee should
be and it is confirmed.
The General Rule that a Party cannot Testify, where the adverse
party is an executor or administrator, to facts which occurred with
the decedent before his death, is being departed from by the better
authorities as calculated to defeat justice rather than to promote it:
St. John V. Lofland, 5 N. D. 140, 64 N. W. 930; Cockley Milling Co.
V. Bunn, 75 Ohio St. 270, 116 Am. St. Eep. 741, 79 N. E. 478. It
is settled that subdivision 3 of the Code of Civil Procedure of Cali-
fornia applies only to actions upon such claims or demands against
the decedent as might have been enforced against him in his lifetime
by personal action for the recovery of money, and upon which a
money judgment could be rendered: Wadleigh v. Phelps (Cal.), 87
Pac. 93; Balliiiger v. Wright, 143 Cal. 292, 76 Pac. 1108. See, also,
Collins v. McKay, 36 Mont. 123, 122 Am. St. Rep. 324, 92 Pac. 295.
Estate of Dunsmuir. 53
Estate of ALEXANDER DUNSMUIR, Deceased.
[No. 23,158; decided March 27, 1905.]
Foreign Probate. — Where a Testator was Domiciled in this State
at the time of his death, the courts of the forum of the domicile have
no authority to admit his will to probate in this jurisdiction, upon
the mere production of a duly authenticated copy of the will and
the record of its admission to probate in a foreign country or sister
state.
Foreign Probate. — An Order Admitting a Will to Probate in this
Jurisdiction, upon production of a duly authenticated record con-
taining a copy of the will and proving its admission to probate in a
foreign country, is, where it affirmatively appears from the record
that the testator was a resident of San Francisco at his death, be-
yond the jurisdiction of the court; and it will, on motion, be set
aside as void upon its face.
Probate of Will — A Will must, in the First Instance, be Probated
in the forum of the domicile, that being the principal, primary and
original place of administration. The law of the domicile governs
the admission of wills to probate.
Probate of Will. — Statutory Residence, in this State, Constitutes
Domicile. — Under the provisions of the code, the words "residence"
and "domicile" are used synonymously and interchangeably; and a
finding that the testator was a resident of San Francisco at the
time of his death is, in effect, a finding that he was domiciled there.
Foreign Probate — Domestic Wills. — Sections 1322-1324 of the Code
of Civil Procedure, authorizing the admission to probate of a will
upon production of an authenticated copy of the will and the rec-
ord of its admission to probate elsewhere, have no application to the
case of domestic wills, but apply only to foreign wills; that is, those
made in other states or countries by persons domiciled outside this
state. The heading of the article of the code in which sections
1322-1324 are contained is to be taken in connection with the sec-
tions themselves for the purposes of construction.
Probate of Will — Compliance with Statutes. — The admission of
wills to probate, whether of residents or nonresidents, being a statu-
tory matter, the court must be controlled in that regard by the
provisions of the code, and it ordinarily cannot be governed by argu-
ments of convenience or inconvenience or of hardship. Nor can it
amplify its jurisdiction nor arrogate any power beyond that ex-
pressly given by the statute.
Probate of Will — Setting Aside on Motion. — An order admitting
a will to probate, void upon its face, may be set aside at any time
upon motion in the probate court, there being no limitation upon the
54 Coffey's Probate Decisions, Vol. 2.
time within which such motion may be made and entertained, and
it being unnecessary to resort to a bill in equity for the purpose.
Probate of Will — Filing Certificate of Proof. — While it has been
the almost uniform practice here from early times to file a certifi-
cate of the proof of the will and of the facts found, signed by the
judge and attested by the seal of the court and attached to the
will, together with the transcript of the testimony of the witnesses,
such procedure is not strictly required except in contested cases.
Motion to set aside judgment admitting will to probate.
Edward P. Coyne, A. Heynemann, Campbell, Metson &
Campbell, E. V. Dodwell, and Charles H. Tupper, for the
motion.
Charles S. Wheeler, Andrew Thorne, and A. P. Luxton,
contra.
COFFEY, J. This is a motion to vacate, set aside and de-
clare null and void a judgment of this court entered May 9,
1900, admitting the will of Alexander Dunsmuir, deceased,
to probate, and appointing James Dunsmuir executor there-
of, upon the grounds (1) that at the time of making and
signing said judgment the court did not have jurisdiction of
the subject matter of said estate nor any jurisdiction to do
any act in the premises, and (2) that at the time of making
said order and signing said judgment the court did not have
nor obtain jurisdiction of any of the persons interested in
said estate and was without power to make or enter any order
binding upon said estate or upon them.
The motion is based upon the records and papers on file in
the matter of the estate and is made on behalf of Edna Wal-
lace Hopper, a daughter and heir at law of Josephine Duns-
muir, deceased, who was the widow of Alexander Dunsmuir,
decedent testator.
An affidavit accompanies the motion made by Sir Charles
Hibbert Tupper, a practicing barrister and solicitor in British
Columbia, Dominion of Canada, learned in the law of that
realm, and the occupant at different times of the offices of
minister of justice, attorney general, and solicitor general of
the dominion. Affiant is counsel for Mrs. Joan Olive Duns-
muir, mother of the decedent and the executor, and as such
counsel engaged in an action instituted and now pending in
Estate of Dunsmuir. 55
the supreme court of British Cohimbia, brought to revoke a
certain probate of the will of Alexander Dunsmuir, the de-
cedent, which was obtained on an application by James Duns-
muir, on motion of his counsel, A. P. Luxton, who applied for
and obtained probate in what is known in that province as
probate in common form. Affiant says that in obtaining pro-
bate of a will in common form the appHcation is made, as it
was in this case, ex parte, and the order admitting said will to
probate was granted on the affidavit of James Dunsmuir, with-
out notice to any of the heirs of the deceased, and without
notice of any kind, such as by publication or otherwise. Pro-
bate in this common form is revocable under the laws of that
province at any time and the executor who obtains such pro-
bate may be cited to bring in the will and propound it in
solemn form. AVithout obtaining probate in common form,
and without being so cited, or if being so cited, an executor
may obtain probate of a will in solemn form by citing the
heirs of the deceased and parties interested in the estate ;
in which case the procedure and law require strict proof of
the death of the testator, of his capacity, and of the valid
execution of the will. In the case of a foreign will, evidence
is required that it has been recognized as valid by a court of
the foreign country, or that it is Valid according to the law
of the foreign country in which the testator was domiciled
when it was executed. Where all in interest have been cited,
probate of a will in solemn form is irrevocable and absolute.
Affiant further says that in the action now pending in British
Columbia for the revocation of the probate herein, Mr. E. P.
Davis, K. C, who is associate counsel in the case with Mr. A.
P. Luxton for James Dunsmuir, has contended in argument
before the supreme court that the effect of an alleged pro-
bate of this will which has been granted in this court in Cali-
fornia was and is equivalent to a judgment in rem, and there-
fore, is binding throughout the world, if the domicile of
Alexander Dunsmuir was in this state, and that the proceed-
ings adopted in this court were equivalent to what is known
in that province as proof in solemn form, and that the ques-
tion of the valid execution of the will, or whether the docu-
56 Coffey's Probate Decisions, Vol. 2.
nient was testamentary, and whether the testator had capae-
it}', could only be raised in the court of his domicile.
Affiant finally says that the practice obtaining in British
Columbia in respect to the proof of wills is similar to that of
England and that the decisions of the English courts are
authoritative and binding on this subject in that province.
The records in this matter, numbered 23,158, superior court,
department 10, San Francisco, California, show that on April
26, 1900, James Dunsmuir presented and had filed his peti-
tion in which he represented that Alexander Dunsmuir died
on or about the thirty-first day of January, 1900, in New
York City, being a resident of the city and county of San
Francisco, state of California, leaving a last will and testa-
ment, dated December 21, 1899, which by a judgment duly
given and made on the 24th of February, 1900, by the su-
preme court of British Columbia (in probate) was duly
proved, allowed and admitted to probate, and that such judg-
ment, allowance and admission to probate was never in whole
or in part appealed from, revoked, set aside, modified, or in
any way affected, and that the same had become absolute;
that the court which so admitted the will to probate had ju-
risdiction in the premises; that the decedent testator left
estate within this city and county, which was described, and
that it was necessary that the will, by duly authenticated
copy, be admitted to probate in this state and in this court,
and to have the same force as a will first admitted to pro-
bate in this state and that letters testamentary issue thereon.
Petitioner produced and filed with his petition for probate
a copy of the will with the usual authentication record aver-
ring that it appeared upon the face of said record that the
will had been proved, allowed, and admitted to probate in a
foreign country, to wit, British Columbia, and that it was
executed according to the law of that place and of the place
in which the same was made, to wit, the state of California,
James Dunsmuir, the brother of deceased, was named as sole
executor and sole devisee and legatee, and the value of the
estate in California was averred to be about $154,000. The
heirs were alleged in the petition to be, Josephine Dunsmuir,
his widow, residing at San Leandro, Alameda county, Cali-
Estate of Dunsmuir. 57
fornia; Joan Olive Dunsmuir, his mother, residing at Victo-
ria, British Columbia ; and the sole devisee, James Dunsmuir,
his brother, the petitioner, residing at said Victoria, who con-
sented to act as executor and prayed for probate as afore-
said. In the will testator describes himself as "I Alexander
Dunsmuir of San Francisco California United States of
America."
Upon the filing of this petition the court made an order ap-
pointing time and place for proving by a copy of the will
and the probate thereof, duly authenticated, the last will and
testament of Alexander Dunsmuir, and for hearing the ap-
plication for letters and directing notice to be given by the
clerk, which appears to have been done, and on the ninth day
of May, 1900, the paper was by an order of the court ad-
mitted to probate. In this order or judgment is a recital,
among others, that due proof had been made and the court
found that the testator was "at the time of his death a resi-
dent of the city and county of San Francisco, state of Cali-
fornia."
This is the record which is challenged as affording evidence
on its face establishing its own invalidity, for it is shown
thereby conclusively that the decedent testator was a resident
of the state of California at the time of his death ; and if the
contention of the counsel for this motion be correct, that
jurisdiction over the probate of wills is determined primarily
by the last domicile of the person deceased and that the court
exercising probate jurisdiction in the testator's last domicile
has exclusive original authority to pass upon the validity of
instruments purporting to constitute his last will, to admit or
deny probate of the same, and to grant letters testamentary
thereon, and that if foreign letters or authority be needful for
facilitating a settlement of the estate, where suit must be
brought abroad, or part of the property is there situated, the
, first requisite is to probate the will and procure letters within
the domestic jurisdiction, then the proceedings in the ease at
bar manifest their own fatal infirmity, for it appears therein
and thereon that the testator was domiciled here instead of
abroad at the time of his death, and, in such case, there should
have been original probate in the domiciliary forum, which
58 Coffey's Probate Decisions, Vol. 2.
is the principal, primary, original, or chief administration,
because the law of the domicile governs the distribution of
the personal property, whether to heirs, distributees, or lega-
tees, while that granted in any other country is ancillary or
auxiliary. It is true these la^st descriptive words are not
found in our statutes, but the principles are there, with local
limitations.
The counsel for executor and opponent, conceding solely
for the purpose of argument that the will of one who in his
lifetime was domiciled in California can never be admitted
to probate in this state upon an authenticated copy of the
probate thereof in a sister state or in a foreign jurisdiction,
insist, nevertheless, that an inspection of the record here fails
to show that decedent was domiciled in California ; and these
counsel further say that nowhere in the codes is it provided
that the petition or the record must affirmatively show the
domicile of a decedent ; they admit that in the petition for
probate and in the order admitting the will to probate and
in the authenticated document from British Columbia it is
recited that decedent was a resident of this city and county,
but they contend that it would not necessarily follow from
such recitals that he was domiciled herein, for the words
"resident," "residence," and "residing" have various shades
of meaning covering the cases from mere sojourners to those
permanently inhabiting and legally domiciled in a place.
This distinction although ingeniously elaborated by counsel
for opponent is not tenable under our statutes applicable to
the case at bar. There can be only one residence, in a legal
sense, in such a case. It is a fact upon which jurisdiction
depends, and in our Political Code, section 52, the word
"residence" is used as a synonym for "domicile." In the
index to the Political Code we find, "Domicile: see Resi-
dence." The primary rule for determining residence is, that
place must be considered and held to be the residence of a
person in which his habitation is fixed, and to which, when-
ever he is absent, he has the intention of returning. It may
be said, that in the state of California, statutory residence is
domicile; but, it is insisted by opponent, that it not being
essential that the record should show where the decedent was
Estate of Dunsmuir. 59
domiciled, the recital of his residence is not inserted to com-
ply with any law requiring a finding of domicile, and hence
is to be given the meaning which would sustain rather than
that which would destroy the jurisdiction, for every intend-
ment is in favor of jurisdiction. This might apply, if there
were any ambiguity in the expression here, but there is none.
It appears from the record, constituting what may be called
the "judgment-roll," that the decedent at the time of his
death was a sojourner in New York, but a resident of San
Francisco. It is nowhere in that record, to which we are
restricted, suggested that he had a domicile elsewhere. Is it
essential that this record should state the grounds upon which
the court acted in admitting the will to probate? Probate
proceedings being statutory, the court must derive all its
power and jurisdiction from the statute to enter the judg-
ment in the particular matter. The statute (section 1294,
Code of Civil Procedure) on the head of jurisdiction of pro-
bate court when exercised over estate, says that wills must
be proved and letters granted in the county of which the de-
cedent was a resident at the time of his death, in whatever
place he may have died. Section 1299 provides as to what
person may petition for probate of will ; and the petition
must show, first, the jurisdictional facts : Section 1300. Now,
we have seen from section 1294 that residence is a jurisdic-
tional fact, and that it is equivalent to domicile, and it w^as
foimd in this case, as appears by the order admitting the will
to probate, in so many words, that Alexander Dunsmuir was
"at the time of his death a resident of the city and county
of San Francisco, state of California." This order or judg-
.^ent further recited that due proof had been made to the
satisfaction of the court and it found the truth of the alle-
gations contained in the petition of James Dunsmuir filed
herein on the twenty-sixth day of April, 1900, and of all the
matters and things therein set forth. Among the allegations
covered by this comprehensive clause was that the residence
of the decedent laid in San Francisco.
It is provided in section 1308, Code of Civil Procedure,
that if no penson appears to contest the probate, the court
may admit the will to probate on the testimony of one of the
60 Coffey's Probate Decisions, Vol. 2.
subscribing witnesses only, if he testifies that the will was
executed in all particulars as required by law and that the
testator was of sound mind at the time of its execution ; and
the practice has been in this place, almost from time im-
memorial, to file a certificate of the proof and the facts found,
signed by the judge, and attested by the seal of the court,
and attached to the will, together with a transcript of the
testimony of the witnesses. This practice, however, though
having the authority of antiquity, is not strictly required ex-
cept in contested cases: Sections 1317, 1318. It should ap-
pear upon the face of the record that the formalities pre-
scribed by the code have been in all essentials complied with ;
it is a requisite that it shall be so shown that the will was
executed under some jurisdiction and under some law, either
the law of the place where the decedent died, or of the place
W'here the will was propounded, or the law of California ; but
this record is silent upon that indispensable point and im-
parts no information which would authorize an inference or
indulge a presumption that the requirements of the statute
were fulfilled, even if inferences or presumptions were per-
missible in the premises.
All of these provisions of the codes from section 1294 to
1318, Code of Civil Procedure, both inclusive, relate to what
is commonly called "original" probate, or probate of "do-
mestic" wills. While this latter term is not found in the
statutes, usage has applied it to these sections as contradis-
tinguished from the documents treated in the succeeding
article of the code, comprising sections 1322 to 1324, inclu-
sive. Thus construing and co-ordinating these sections, we
have two classes of wills : domestic and foreign. In the
second class are included wills made in other states or for-
eign countries. Page on Wills defines a foreign will, in
the sense that the term is used in the law of probate, as
a will executed in a state or country by a testator there
domiciled, admitted to probate there upon the death of such
testator, and subsequently offered for probate in another
state. Page says that the statutes for admitting a domes-
tic will to probate, and for the effect of the order of probate,
are generally taken as analogies in cases of foreign wills
Estate of Dunsmuir. 61
where applicable. The article of the Code of Civil Pro-
cedure of California concerning this latter class is headed:
' ' Probate of Foreign Wills. ' ' Section 1323 is entitled : ' ' Pro-
ceedings on the Production of a Foreign Will," and section
1324, "Hearing Proofs of Probate of Foreign Will." Our
supreme court has decided that these headnotes are parts of
the statute limiting and defining the sections to which they
refer, and to refuse to give them effect according to their
import would be to make the law, not to administer it. If,
then, there be a "foreign" will, there must, of necessity, be
a "domestic" will; for the effect of the rule laid down by
the appellate tribunal is to write into the body of the sec-
tions under article 3, title 11, chapter 2 the word "foreign,"
thus making the context correspond with the headnotes of
the sections and the title of the article. Were it not for
these provisions, there would be no law in this state author-
izing the admission of a testament made in another jurisdic-
tion, and it is clear that the intent of the legislation was to
extend by courtesy to citizens of another state and subjects
of a foreign country the privileges granted to residents with-
in our own borders, thus by comity enabling nonresidents
to share equally with our own people the benefits of our laws.
All the rights of either resident or nonresident are derived
directly from the statute. This court cannot amplify its
jurisdiction, nor arrogate any power beyond that expressly
given to it by the statute; even though by such self-denial
great hardship, inconvenience or loss might result in any
particular case. It may be, as counsel assert, that to hold
that our courts have no jurisdiction to admit to probate upon
an authenticated copy the will of a person whose domicile
was California would invalidate the titles to millions of dol-
lars worth of real property; but if the statute commands,
the courts are bound to obey, at whatever hazard to indi-
vidual fortune. At the same time, the court should be care-
ful to avert such a calamity, unless the mandate of the law
is imperative and absolute. As an original question, this
court would be bound, under its view of the meaning of the
statute, to hold that the primary place of probate was in
San Francisco, and that the sections under the title "Pro-
62 Coffey's Probate Decisions, Vol. 2.
bate of Foreign Wills" have no application to wills executed
by citizens domiciled in this state, but only to instruments
made according to the laws of some other state or country.
As a general proposition, the will of a citizen of this state
can be proved only- by producing the original, although in
certain circumstances, recited in section 1299, Code of Civil
Procedure, our courts will admit to original probate a will
which is beyond the jurisdiction of the court. It may be, as
is said by counsel for opponents, that the proceedings in such
cases are ordinarily costly and cumbrous, and that a far moye
convenient method is proof by exemplified copy, and that the
public convenience would be subserved thereby, and that no
hardship would result therefrom, and that all the protective
provisions for proponents and contestants exist equally in
both modes ; but the argument of convenience or inconveni-
ence and of hardship is always a dangerous one, especially
in purely statutory matters. The code is the chart and com-
pass of the court. Our courts, as was said in Sturdivant v.
Neill, 27 Miss. 157, in adjudicating upon wills which depend
solely for their validity upon our law must look only to that
statute of which they are judicially informed, and not to the
laws of another country, which can have no influence either
way on the decision of the question. Counsel for opponent,
however, insist that not only does the language of the stat-
ute cover the case— not only is the public convenience in
favor of construing the statute according to its terms, but our
supreme court has squarely decided the proposition in Gold-
tree V. McAlister, 86 Cal. 98, 24 Pac. 801. If this be so, it
is an end of the controversy ; but it is disputed that the exact
question involved in this motion was decided in that or in
any other case in California. It is a new point in this state
a£ presented here. This is a motion made to set aside a judg-
ment, because it is void upon its face. It is a direct attack
upon that judgment. In the Goldtree case the issue as to
this was incidental and collateral ; the point decided was that
the judgment, whether erroneous or not, was conclusive as
against a collateral attack. This court has given to the opin-
ion and to the records in that case a careful reading and
fails to find that it is applicable to this motion. The only
Estate of Dunsmuir. 63
cognate question determined there was that in a collateral
proceeding the party could not a^sk to have the judgment set
aside because of the fact that the record did not appear to
be properly authenticated. That matter may be best under-
stood by taking the statement of the point from the body of
the opinion, on page 101 : To the introduction in evidence of
the record of the California probate proceedings the defend-
ant objected on the ground that the probate court of San
Luis Obispo countj^ never acquired jurisdiction of the sub-
ject matter of the probate of the will, because the copies of
the will and of the foreign probate thereof were not certi-
fied or authenticated as required by our statutes; held, eon-
ceding that the authentication of the foreign probate will is
a jurisdictional fact, yet it belongs to that class of such facts
which the court must find from the evidence and its decision
thereon is conclusive as against a collateral attack. There
were other points in that case upon which the judgment
turned, but this was the only one pertinent to the discussion
here, and the ruling thereupon cannot be considered as au-
thoritative and binding on this motion which presents the is-
sue for the first time in a direct manner. So far as this case
is concerned, in this state it is a new question, and this court
is without the advantage of authority in our reports up to
date; but there are numerous decisions in other states which
sustain the principle of this motion, and in all, where the
circumstances are analogous, it has been declared that the
statute relating to probate of foreign wills has no reference
to a will executed in the state wherein the testator resided
at the time of his death, and that the proper place of probate
of such a will is in the domestic forum. In one of these
cases, somewhat similar to this, it was said by the court that
if we give to such a statute the broad construction contended
for, that wills which must be executed according to the sol-
emnities of our laws, may, nevertheless, be proved according
to the laws of any other country, we, in effect, adopt the laws
of that country in the particular case, and allow them to de-
cide the validity of the instrument. This was never designed
by the legislature. The statute was only intended to pre-
scribe a certain and convenient mode of proceeding by per-
64 Coffey's Probate Decisions, Vol. 2.
sons who, upon principles of national comity, might claim
the assistance of our courts, when necessary, to enable them
to assert their rights to property, or to enforce their remedies
as creditors in this state, under wills which have been exe-
cuted in another state or country, and properly established
as such in the courts of that country. In another case it was
said that if, in this class of cases, the legislature had pre-
cluded probate courts from inquiring into a fact, upon which
their own jurisdiction depends, that when a copy of a will
and its probate in a foreign country are presented, no inquiry
can be had whether the original probate, and hence the pri-
mary administration, ought not to have been taken here, it
would fall little short of a renunciation of the duty which
the state owes its citizens to protect them in their rights of
property, by seeing to it that the estates of persons deceased,
whether real or personal, situated within our jurisdiction, be
administered according to our laws. Nothing but language
quite unequivocal and clear would warrant the conclusion
that such was the legislative intent : Stark v. Parker, 56 N.
H. 481. The statute in New Hampshire is similar to that
in California, and in that case it was said that the question
of domicile was all important. A comparison of the statutes
will show the appositeness of the citation. There are sixteen
states, including California, in which the statutes are almost
identical, and twenty-four others where they are substantially
similar, and a collation of the authorities in Woerner (*491-
*496) exhibits a uniformity of judicial opinion that the law
of the domicile of the decedent is the dominant factor in ad-
mitting his will to probate; it must be governed by the stat-
ute of the state in which he resided at the time of his death.
There is no case cited from California, only section 1324, upon
this point. Goldtree v. McAlister is alluded to (Woer-
ner, *498) to support the proposition that the proceedings may
not be impeached collaterally. This case is the main, if not
the sole, reliance of the opponent of this motion ; but, for the
reasons already stated, this court does not regard it as absolute
authority. In the Estate of Richardson, 120 Cal. 344, 52 Pac.
832, the point was not made or adverted to in the opinion
or the record. It is true the court has the right to inquire
Estate of Dunsmuir. 65
into the fact of jurisdiction, whether raised by the parties
or counsel, but it does not always exercise that right. At all
events, in the Richardson case the only question was, which
of two applicants was entitled to letters of administration,
and that was the only point decided. In the Matter of Or-
tiz, 86 Cal. 306, 21 Am. St. Rep. 44, 24 Pac. 1034, the ques-
tion was not raised. In the case of Rogers v. King, 22 Cal.
71, all that the court decided was, that a judgment admitting
a will to probate, made upon a petition stating all the neces-
sary facts, and after the publication of due and legal notice
of the application for probate, is conclusive of the validity
of the will when called in question in any collateral proceed-
ing or action. The opinion of the court was, that if, as was
agreed, the petition stated all the necessary facts, the judg-
ment of the court, the proper precedent steps having been
taken, was conclusive as against a collateral attack. It does
not meet the issue in the case at bar. The point here pre-
sented was not before the court in that case, nor in any other
in California, in the form and on the facts of the record
herein, on a motion directly assailing the validity of the pro-
bate. That at times wills have been admitted, as in the cases
cited, without objection, without contest, and by tacit con-
sent, does not authorize the courts, when the question is
raised, to disregard the statute, because in some or many in-
stances it has been erroneously interpreted in uncontested
practice. If this court has read the cases correctly, the au-
thorities under similar statutes in other states are adverse to
the contention of opponent, and by "similar" is not to be
understood literal sameness of language or words, but what
counsel for opponent in argument describes as "substantially
identical" with our own code provisions; there may be a ver-
bal variance here and there, but the substance, the spirit,
the thought, the reason, and, generally, in the cases cited
herein, the expressions are the same.
This court appreciates the importance of the issues and the
magnitude of the interests involved and dependent upon the
final decision of this motion, although it may be mooted
whether great mischiefs to domestic interests might not be
wrought by sustaining the position of opponent, great as are
Prob. Dec, Vol. II — 5
66 Coffey's Probate Decisions, Vol. 2.
those he apprehends by the success of his adversary, and with
this appreciation much labor has been bestowed upon the in-
quiry into the law of the case. The court has been reluctant
from the first to a favorable view of a proceeding instituted
after years of apparent laches and acquiescence in an act so
solemn as a formal judgment affecting vast property rights;
but where such a judgment or order is void upon its face,
it does not appear that in California there is any time limit
within which such a motion may be sustained. Our supreme
court has decided that a judgment void upon its face may be
vacated at any time upon motion, and this seems to be such a
case. The suggestion of counsel for opponent that in the
case at bar the party aggrieved should have recourse to a bill
in equity, as the only appropriate remedy, is not tenable, if
this motion be well based, for here where the error was com-
mitted it should be corrected ; and the complainant should not
be remitted to another forum while relief may be had in pro-
bate. If these views be correct, the motion should be granted.
In the Case of Dunsmuir v. Coffey, 148 Cal. 137, 82 Pae. 682, the
supreme court affirms that, regardless of the distinction which may
exist between the probate of domestic and foreign wills, and regard-
less also of the correct determination of the domicile of the deceased,
the order admitting the will to probate in the principal case was
in no sense void, and, supposing it to be erroneous, was valid un-
til reversed directly upon appeal, and its validity could not be col-
laterally attacked. And in Estate of Dunsmuir, 149 Cal. 67, 84 Pac.
657, it was held that a motion cannot be entertained to vacate an
order admitting a will to probate which is not void upon its face,
after the lapse of the time prescribed by section 473 of the Code of
Civil Procedure, and an order granting such motion will be reversed
upon appeal.
A Court may Grant Original Probate of the Will of a nonresident
who dies leaving either personal or real property within its terri-
torial jurisdiction, without the will first having been proved in the
courts of his domicile. But it is the duty of a court to refuse pro-
bate to an instrument offered as a foreign will, when satisfied from
the evidence that the testator was in fact a resident of the state
at the time of his death. When the will of a nonresident is ad-
mitted to probate on original proceedings for the purpose of ad-
ministering on his property within the state, the decree therein binds
that property here and everywhere that our courts are accorded
full faith and credit, but it is not binding as to the will itself in
Estate of Dunsmuir. 67
other jurisdictions where the deceased may have left property, nor
is it binding on the courts of his domicile: Estate of Clark, 148 Cal.
108, 113 Am. St. Rep. 197, 82 Pac. 760, 1 L. R. A., N. S., 996; Es-
tate of Edelman, 148 Cal. 233, 113 Am. St. Rep. 231, 82 Pac. 962;
Rader v. Stubblefield, 43 Wash. 334, 86 Pac. 560; Estate of Clayson,
26 Wash. 253, 66 Pac. 410.
While a Foreign Will may be subject to contest when application,
is made to have it proved and recorded in a jurisdiction where the
testator left property, still it should be observed that a judgment
in a probate proceeding is a judgment in rem — that is, it determines
the status of the matter. Therefore, the judgment of a court ad-
mitting a will to probate fixes the status of the instrument as a
will, and becomes at once conclusive upon the world of all the facts
necessary to the establishment of a will, among which are, that at
the time the will was executed the testator was of sound and dis-
posing mind, and was not acting under duress, fraud or undue in-
fluence. It follows, for example, that a will executed in California
by a testator there residing, and subsequently admitted to probate
in that state, may not, when afterward admitted to ancillary probate
in Montana, where the testator left real and personal property, be
contested on the ground that the testator was not of sound mind,
or acted under duress, fraud or undue influence, the Montana stat-
utes providing that when such foreign will is admittted to probate
in this state, it shall "have the same force and effect as a will first
admitted to probate in this state": State v. District Court, 34 Mont.
96, 115 Am. St. Rep. 510, 85 Pac. 866, 6 L. R. A., N. S., 617. A will
is not subject to collateral attack after probate in foreign courts:
Wells V. Neff, 14 Or. 66, 12 Pac. 84, 88. Where the court of an-
other state has admitted a will to probate, it must be prima facie
evidence that it based its adjudication as to domicile on sufficient
evidence, and its judgment in that regard cannot be questioned col-
laterally: Corrigan v. Jones, 14 Colo. 311, 23 Pac. 913.
68 Coffey's Probate Decisions, Vol, 2.
Estate of SOPHIA CASEY, Deceased.
[No. 27,630; decided May 21, 1903.]
Testamentary Capacity — Undue Influence. — While the law will not
presume the exertion of undue influence from the mere fact of op-
portunity or a motive for its exercise, nor permit it to be found
upon suspicion, yet proof must generally be gathered from the cir-
cumstances of the case, for very seldom is a direct act of influence
patent, as a person intending to control another's action, especially
as to a will, is not apt to proclaim that intent; and among the cir-
cumstances from which proof must generally be gathered of undue
influence exercised upon a testator are: Whether he had formerly in-
tended a different testamentary disposition; whether he was sur-
rounded by those having an object to accomplish to the exclusion of
others; whether he was of such weak mind as to be subject to in-
fluence; whether the alleged will is such a one as would probably
be urged upon him by those surrounding him; whether the persons
who surrounded him were benefited by the alleged will to the ex-
clusion of formerly intended beneficiaries.
Acknowledgment of Will — Failure of Memory of Witnesses. — The
failure of the attesting witnesses to the will involved in the present
case, they being the nurse and physician attending the alleged testa-
trix at the time of the execution of the instrument, to recollect
whether she acknowledged the paper as her will, is adversely com-
mented on by the court, especially in view of the fact that the in-
strument purports to have been executed at a recent date and in
the presence of impending death.
Testamentary Capacity — Clinical Chart of Nurse as Evidence. — A
clinical chart kept by a nurse, showing, by entry made therein by
her, that she administered a powerful opiate to her patient a short
time before the patient is alleged to have executed a will, is, in con-
junction with the testimony of the nurse as what must have been
the stupefying effect of the drug, strong evidence of the condition of
the mind of the testatrix at the time of the alleged testamentary
act.
Testamentary Capacity — Person in Last Sickness. — The testatrix
in this case having executed a will on the last day of her life, at
the age of nearly eighty years, the court finds, from the combined
effect of her sickness, the frequent administration of opiates, the in-
tensity of her pains, and the other influences acting upon her will
and understanding that she must have been incapable of voluntary
and intelligent disposition at the time.
Testamentary Capacity — Undue Influence, — The court finds from
an examination of the evidence in this case that the will dated Oc-
tober 21st was inspired by the proponent, that he was the informing
Estate of Casey, 69
spirit of that testament, and that it was his will rather than of the
nominal testatrix.
Application for probate of wills filed October 21, 1902;
September 25, 1902; October 21, 1901. Contests as to each
were consolidated at the trial.
C. M. Jennings, for paper of October 21, 1902.
Max Blum, for September 25, 1902. ;
Pippy and Bahrs, for October 21, 1901.
William Loewv, Loewy and Gutsch, for certain heirs.
COFFEY, J. The first paper propounded was filed on
October 27, 1902, by C. M. Jennings, attorney for the pro-
ponent, Charles W. Fisher, accompanied by a petition for the
probate thereof in which it was alleged that one Sophia Casey,
a widow, aged about seventy-nine years died testate on Octo-
ber 22, 1902, in this city and county, whereof she was a resi-
dent, leaving estate therein and elsewhere within this juris-
diction, real and personal, exceeding in value $10,000 dis-
posed of by a will dated October 21, 1902, executed in due
form of law ; that at the time of the execution thereof the
testatrix was of sound and disposing mind and not acting un-
der duress, menace, fraud or undue influence; that she left
no kin in this country; that the names, ages and residences
respectively of the legatees and devisees named in the will
are as follows :
1. The petitioner, Charles W. Fisher, aged forty-three years,
residing at 14 Lexington avenue, San Francisco.
2. Sophia Britton, a minor, daughter of William Johnson
Britton and Rosa Cecilia Britton, his wife, residing at 7 Dore
street, San Francisco.
3. Mr. and Mrs. Arthur J. Pinkstone, of lawful age, resid-
ing at 2533 Mission street, San Francisco.
4. Golden Gate Chapter No. 1, Order of Eastern Star (a
benevolent corporation), of and residing in San Francisco.
5. Sophia Schmidt, daughter of Caroline Schmidt (nee
70 Coffey's Probate Decisions, Vol. 2.
Laubschu), a minor, residing at Berkeley, Alameda county,
California.
6. German Old Folks Home, known as the "Deutsehes Al-
tenheim, " in Pruitvale, Alameda county, California, a benevo-
lent corporation.
7. Anna Maria Eissler, widow, of lawful age, residing at
No. 10 Sycamore avenue, San Francisco.
8. The descendants of Adam and Jacob Kammerling, "now
or formerly of near the town of Nohfelden, Birkenfeld, Grand
Duchy of Oldenburg, Germany, names and ages unknown;
identity and residence not otherwise known. The Burgomas-
ter of said town of Nohfelden, or his successor in office, in
trust, to ascertain the descendants of said Adam and Jacob
Kammerling, and to make distribution unto them."
This petition for probate further alleged that the petitioner
Charles W. Fisher and one Joseph Friedlander, both of San
Francisco, were named in the paper propounded as executors,
and that Fisher consented to act as such but Friedlander had
not up to date signified his purpose and petitioner prayed for
probate and for his own appointment and that of Friedlander,
if he should consent to act in that capacity.
On October 28, 1902, Joseph Friedlander, through his at-
torney. Max Blum, filed his petition alleging that deceased
left a will duly executed on September 25, 1902, which was
her last will, and in which he and Charles W. Fisher were
named as executors, but that Fisher declined to act and this
petitioner consented and asked that letters testamentary be
issued to him upon the probate of the instrument.
On November 5, 1902, one H. A. Ph. Bohr, through his
attorneys, Pippy and Bahrs, proffered for probate an instru-
ment dated October 21, 1901, purporting to have been exe-
cuted by the said decedent, in which himself and one Arthur
J. Pinkstone were named as executors, and at the same time
was filed a codicil dated October 31, 1901, both papers exe-
cuted with the legal formalities. Bohr asked for letters;
Pinkstone did not join. The contents of all of these peti-
tions for probate were substantially similar as to fact and
form, which may be more apparent from the subjoined tabu-
lated statement of the three testaments:
Estate of Casey.
71
3d Will.
2d Will.
1st Will.
Charles W. Fisher $5,000
155 acres, Fresno
155 acres, Fresno
155 acres, Fresno
Valley Street lot
Valley St. lot
4 trunks
Stamps collec-
Stamps collection
Stamps collection
tion.
Certificate ' ' Chosen
All personal property
Friends."
in living rooms.
Sophia Britton $ 100
$ 100
$ 100
Mr. & Mrs. Pinkstone 400
400
400
Golden Gate Chapter
No. 1, 0. E. S. 100
100
100
Sophia Schmidt 100
100
100
Deutsches Altenheim 100
100
100
Maria Eissler 1,000
1,000
1,000
Descendants of JQ^^.j^^jf^f
Adam Kam- ^ ^^^.^^^^_
One-half of residue.
One-half of residue.
merlmg. }
T I residue,
merling. )
One-half of residue.
One-half of residue.
Executors:
Executors:
Executors:
Chas. W. Fisher.
Joseph Friedlander.
H. A. Ph. Bohr
Joseph Fried-
Chas. W. Fisher.
Arthur J. Pink
lander.
stone.
Witnesses:
Witnesses:
Witnesses:
C. M. Jennings,
Joseph Jones, j||
Diedrich A. Brune,
214 Pine St.
2121 Mission St.
2036 Mission.
Lynette Laemmel,
Mrs. Virginia H.
Chas. Eehn,
1810 Pine St.
Barker, 14 Lex-
2030 Mission.
C. W. Card, M.
ington Ave.
D.,502Devisa-
dero St.
On December 1, 1902, acting for himself as the executor
of the will of 1901, Bohr filed a contest to the alleged wills
of October 21, 1902, and September 25, 1902, in which he
alleged as grounds of opposition that each instrument was
not duly executed; that at its date testatrix was by reason
of her age and infirmities impaired in mind and memory,
destitute of testamentary capacity; that she was unduly in-
fluenced by Fisher; and that the document did not substan-
tially represent her wishes and that she had no knowledge
of its contents.
72 Coffey's Probate Decisions, Vol. 2.
A similar contest had been filed by the same party, acting
as attorney in fact for certain German heirs, on November
24, 1902.
Issues were joined on all the contests and the matters came
before the court for hearing on , 1902, and by agree-
ment of all the parties and their counsel the various conten-
tions were consolidated.
The important difference in the dispository provisions of
the three wills is the item of $5,000 additional legacy given
to Charles W. Fisher in the third testament.
There is not apparent any sufficient reason why the tes-
tatrix should so soon after the execution of the paper of
September 25, 1902, a document drafted with care and skill
by the same attorney, execute another will except to add to
the Fisher bequests.
According to the evidence of Dr. Charles "Wesley Card,
a subscribing witness to this instrument and her attending
phj^sician, she communicated to him this purpose more than
ten days prior to the date of the document. Dr. Card
testified that he had been the family physician of Sophia
Casey for ten years prior to her decease, and that he had at-
tended her in her last illness, from the 29th of September
to the 22d of October, 1902, and saw her every day during
that period, sometimes two or three times, and was intimately
acquainted with her physical and mental condition ; it was
he suggested the employment of Lynette Laemmel as nurse,
who began her attendance on October 8th and continued there-
after until the end: this lady was also a subscribing witness.
Dr. Card said that when the will was to be signed tes-
tatrix was given the pen and a little book on which the will
was placed before her; she was propped up on the bed and
asked to sign her name; she took hold of the pen and got
her fingers down on the ink, and then said, "I do not feel
strong enough to sign this will," and then Mr. Jennings sug-
gested that the doctor write her name ' ' Sophia Casey, ' ' leav-
ing a space between her name and allowing her to make her
mark there, which was done ; she asked the doctor to sign
his name, but he could not remember whether she asked him
to sign her name ; the doctor could not say whether she asked
Estate of Casey. 73
him to sign her name, or whether he took the paper and the
lawyer asked him to do so. but "it was legitimate anyhow."
Dr. Card, after making this remark as to the legitimacy
of the transaction, continued to testify that he took the paper
and wrote her name and then put the paper back on the little
book she had there and she made her cross there ; but whether
she made any observation at that time the doctor could not
say ; he saw her make her mark, however, and it was done in
thp presence of Miss Laemmel, the trained nurse, and Mr.
Jennings, the lawyer, the latter of whom said in regard to
the inability of ]\Irs. Casey, through her weakness, to write
her own name, that that fact changed the will considerably,
as it would involve some writing below the signature to ex-
plain the circumstance, and thereupon the lawyer took the
document and wrote something down which he subsequently
read to the witnesses, but the doctor forgot what it was and
did not pay any attention to it, but it was something about
why she did not write her name. Upon being urgently ad-
monished by the examining counsel, Mr. Jennings, to stop
and think again and tell whether or not Mrs. Casey said any-
thing about anyone signing her name to this paper because
she did not feel strong enough to sign it, the witness re-
sponded that he could not say; that he could not say posi-
tively whether she suggested or whether the lawyer suggested
that the doctor sign her name. In answer to another urgent
appeal from the examiner, the doctor declared that he did
not remember that the testatrix said anything to the lawyer,
who had come to the house that morning in response to a
telephonic request from the doctor; the lawyer arrived at
about half-past 10 o'clock; he came in and took the will out
of his pocket and read it over to the decedent and then asked
her if that was satisfactory, and she said yes, and then she
asked for a pen which was given to have her sign the will.
At this point in his examination the examiner, Mr. Jennings,
adjured the witness to try and think again and answer if
Mrs. Casey did not say something to him, the lawyer, when
she found that she was unable to sign the will with her
own name herself, but the doctor answered that he did not
remember what was said at all; the doctor signed her name
74 Coffey's Probate Decisions, Vol. 2.
at the request of the lawyer, who showed him how to do it ;
the doctor was ignorant of the formula and the lawyer in-
structed him saying: "Write Sophia there and Casey there,
leaving a space to put her mark between the names"; the
doctor did not remember that ]\Irs. Casey asked him to write
her name or that she said anything at all; she took the will
in her hand and read it over and then the lawyer read it to
her. In answer to the examiner, Mr. Jennings, who inquired
at whose request he read the will to Mrs. Casey, the doctor
said it was at her request, "because she could not feel like
reading it," "did not feel like reading it; she w^as very-
weak." In speaking about some trunks, the testatrix cor-
rected what was in the will and said it should be six trunks
instead of four; then the lawyer took the paper and sat down
and wrote something below — the doctor did not know what
it was, but supposed it was a correction with regard to the
number of trunks. Certain blots on the paper were made by
the testatrix taking hold of the pen she got her fingers down
on the pen and fumbled the paper and then the lawyer took
the pen out of her hand; she said "I cannot write my name,
I am too weak," and then he took the pen out of her hand.
Dr. Card further said in response to the question by the
examiner, Mr. Jennings, as to what testatrix said, if any-
thing, about this document when she made her mark : * ' There
was nothing said about its being her will and last testament" ;
he did not know that Mrs. Casey said anything at all; it was
understood it was her will and she had it read to her, and
she signed it ; it was read to her as her will and that was
satisfactory and she proceeded to sign her name there by a
cross. The doctor then repeated that there was nothing said
that it was her last will and testament at all. Mrs. Casey
did not ask the doctor to sign the attestation clause, but she
had asked him previously to sign the will, but it was Mr.
Jennings who asked him to sign that clause; that addition to
the will explaining why she could not write she wished the
doctor to sign ; she was very weak physically, but the doctor
did not apprehend the dissolution to take place so soon — he
thought she would last two or three weeks longer; her mental
condition that morning was good and clear, she was of sound
Estate of Casey, 75
mind; she knew what she was doing; she had talked with
him as to the execution of this will about a week or ten days
previous — in fact, from her first illness when the doctor was
called in, she talked the matter over with him ; she said that
she had a Avill out and she wished to make a change in it;
Mrs. Casey made the remark to the doctor that she was in
a lawsuit with a family named Bohr, and her only wish was
that she should live long enough to come into court and prove
to the judge that they had cheated her out of this four or
five thousand dollars, and she only wished the doctor would
make her live long enough to get that money back; the doc-
tor testified that he did his best to carry her along, but it
went along for a number of days and she was getting worse,
and he told her that her sickness looked rather dubious and
it was possibly the chance she might not live very long and if
she had any papers to take care of she had better do it as
she might pass off quickly ; her heart was weak ; she said she
was going to make out a will and wanted to leave money to
Mr. Fisher, that she did not suppose he had money enough
to go on and fight the case with if she died, she wanted to
leave him enough for that purpose; she told the doctor she
w'anted to make out a will, and he notified Mrs. Fisher that
she should notify her lawyer, Mr. Jennings, that he was
wanted out there to draw up some papers. This conversa-
tion occurred about a week or ten days prior to the decease
of Mrs. Casey. The doctor said he saw Mr. Jennings there
shortly after he made that request to ]\Irs. Fisher to notify
her lawyer. Mr. Jennings then had a conversation with Mrs.
Casey in presence of the doctor about changing the will, and
the lawA-er told her the contents of the will, and asked what
was her wish to have done. Mrs. Casey said : " I want to add
to that will $5,000 to be given to Mr. Fisher," and Mr. Jen-
nings asked her whether there was any undue influence
brought to bear on her to influence her in any way in chang-
ing the will, and she said not.
In answer to a rather suggestive question from the exam-
iner, the witness stated that ]\Ir. Jennings then said to Mrs.
Casey that he would prepare the paper at her request and she
told the lawyer that of course she was pretty weak and they
76 Coffey's Probate Decisions, Vol. 2.
would wait awhile, there was no hurrj^; they did not expect
her to die so soon; he said to Mrs. Casey and Mr. Jennings
both then and there, "There is no hurry to have this will
signed, wait until she gets stronger and she can sign it."
and it ran along for a week, and seeing her getting weaker
every day and concluding she was not going to recover, the
doctor telephoned to the lawyer that he had better come up
there and have the will signed, as he did not think she would
live very long. This was on Friday, but he could not reach
him on that day, so he tried the next day, Saturday, and he
was out again. On Sunday the doctor hung up the telephone
but on Monday took it down again and caught the lawyer,
and an appointment was made for Tuesday at about 10:30
A. M., and at that time the transaction was consummated.
For a week prior to that time she was suffering a great deal
of pain ; she was physically weak and suffering from rheuma-
tism and the doctor had given her opiates to relieve her more
or less. The opiates were intended for immediate effect and
were given whenever she had pains ; they w^ere given for days
and days, for a number of days ; the instructions to the nurse
that when the patient got in violent pain to give her an opiate ;
the nurse had discretion in this respect ; the effect was to in-
duce sleep for from two to four hours ; the duration of sleep
would depend on the intensit}' of the pain; if the pain was
not severe it would be from six to eight hours, or eight to ten
hours ; sometimes she got them only once a day ; on the morn-
ing that this will was executed no opiates were given to her;^
on the doctor's instruction she was not given any opiates, be-
cause he wanted her mind clear, as clear as could be, so she
would know what she was doing; for that reason the doctor
instructed the nurse not to give the patient any opiates that
morning; she was suffering a good deal of pain that morn-
ing, but she could talk all right ; she had her right mind and
conversed and talked as usual, and her voice was about the
same as her ordinary tone; at the time the will was executed
the doctor understood it was her will but he would not swear
whether or not she said so ; he took it for granted she was
supposed to know without saying so at all ; the will was there
and it was read to her in his presence and, therefore, he knew
Estate of Casey. 77
it was a will ; she had requested him to be present and sign as
a witness, and the paper was signed, or her mark was made,
in his presence and in that of Miss Laemmel and Mr. Jen-
nings; but so far as ^Mrs. Casey making any request at that
time of any of the rest of them signing as witnesses, he did
not know of her saying anything; the doctor said he did not
know the exact words that were used there at all with regard
to who should sign it. Upon further questioning by the ex-
amining counsel, Mr. Jennings, as to whether or not he knew
that ]\Irs. Casey spoke of the matter at all, the doctor an-
swered that to him she said, "I want you to sign the will,"
and, "Miss Laemmel, here, the nurse, can sign it also," and of
course, the lawyer being present, "will you sign it, also."
The doctor did not know that she told him in exact words, but
she wanted him to sign that will. The examining counsel un-
dertook to refresh the doctor's memory as to what transpired
in the transaction, but was unsuccessful in his endeavor;
however, the examiner succeeded in eliciting from the witness
an affirmation of his interrogative statement that Mrs. Casey
on the morning that she executed this will and while execut-
ing it was not acting under the influence of menace or fraud
or undue influence of anybody or any misrepresentations.
That was the last the doctor saw of her ; he forgot whether
he saw her the same evening or not; he left about noon and
was not there again ; after the execution of the will he or-
dered an opiate given and it was administered ; he directed
the nurse to give an opiate as frequently as the patient had
pain; if she had very much pain to administer an opiate to
keep her out of misery. The doctor answered the examiner
that he first considered her case critical — that is, that her
death might occur within a short time — when he telephoned
to the lawyer to come up and have the will attended to; the
doctor then began to realize that she was getting serious and
if she had any business she should attend to it. This was on
the Friday before her death. In answer to a pressing and
repeated inquiry from the examiner, the doctor said that he
could not remember the occasion of the lawyer's call upon
Mrs. Casey a week or ten days prior to her death when a con-
versation was had between her and the attorney, when she
78 Coffey's Probate Decisions, Vol. 2.
stated the changes she wanted made in her will and said some-
thing about calling to the lawyer's office to execute it ; he could
not remember anything on that subject at all. Mrs. Casey
told the doctor the whole story of her trouble with the Bohr
family; she said that she had lent Bohr some money, some-
where between four and five thousand dollars, and when she
asked him for a mortgage he refused to give it and said he
did not obtain any money from her; she said she was go-
ing to take it into court and fight it; she drew the money
and gave it to him on the understanding that she was to have
security, and when she demanded security Bohr refused to
give it to her and she said she was going to recover it if she
possibly could ; this was the gist of her statement to the doc-
tor, who thought that the dispute between herself and the
Bohrs affected her health injuriously, and that it was the
means of hastening her death and that it broke her right
down physically ; it worried her very much ; the minute the
doctor went into her room the first subject she would touch
was the Bohr family and how they beat her out of the
money. The doctor testified that he saw Miss Laemmel and
Mr. Jennings sign the will as witnesses, at the same time;
testatrix was awake and the signers were right near her
head ; she was conscious of what was going on ; she was a
woman of strong will power. The doctor had suggested the
employment of Miss Laemmel as nurse; she kept a clinical
record which he inspected every day and which the doctor
had in his possession and produced on the stand at the re-
quest of the cross-examiner, Mr. Blum. In response to this
cross-examining counsel, the doctor said that this document
constituted the entire record that was kept. The opiates,
ordinarily administered were pulverized opium as a suppos-
itory and morphine capsules; the suppositories were com-
pound prescriptions; the doctor would ordinarily interro-
gate the nurse about the record when he called ; champagne
was given to the patient during the period of the nurse's
attendance; the nurse had the privilege of giving medicine
at her discretion; the doctor's instructions were to give an
opiate as the patient needed it, when she was in violent pain.
On the occasion of his visit last prior to the making of the
Estate of Casey. 19
will, he told the nurse not to ^ve an opiate in the morn-
ing of the 21st, because he expected the attorney there to
attend to this matter and they wanted her mind clear. He
called later that morning at about 10 o'clock and w^as there
when the lawyer arrived ; Mr. Jennings came in at about
half-past 10. The matter of the will occupied probably an
hour, but he did not gauge the time by his watch. Mr. Jen-
nings left first and the doctor remained a short while after-
ward and ordered an opiate given to the patient and waited
to observe its operation and then departed. If ad opiate
had been administered that morning prior to his arrival,
the doctor testified he would have been able to know it, even
if he were not told so. Opiates ordinarily took effect quite
promptly on Mrs. Casey, and the dose of morphine that he
was in the habit of administering to her would take from
two to four hours to wear off, so that if an opiate had been
given to her prior to his arrival that morning he would have
been able to detect that fact. But it appears from the clin-
ical record, produced on the witness-stand bj^ the doctor on
cross-examination, that there had been an opiate given to the
patient that very morning at twenty minutes past 10 o'clock
by the nurse, Miss Laemmel, who testifies that at that hour
she administered to Mrs. Casey a reduced dose of only two-
thirds of a capsule, the full dose usually given being one-
fourth of a grain ; according to this clinical chart the patient
had "cried out with pain in right leg" just before this med-
icine was given. The chart does not indicate the contents of
the capsule, but the nurse testified that the ordinary quan-
tity was one-fourth of a grain, and there is nothing in the
note of the amount administered at 10:20 A. M. of October
21st, 1902, to show that it was more or less than one capsule
of the customary content.
Dr. Henry Harris testified that he made a visit with Joseph
Friedlander on the evening of October 21, 1902, to the house
of Mrs. Casey, whom he was asked to see by that gentle-
man ; they entered the house together but were not imme-
diately admitted, as the trained nurse in charge of the case
made certain objections, saying that the attending physician
had left orders that no one should see the patient. After
80 Coffey's ProbxVte Decisions, Vol. 2.
some demur and parley they were admitted to the apart-
ment of the patient; this was at 8:40 P. M., according to
his timepiece; they saw the lady, who was in bed; Dr.
Harris fixed the time of his visit from data or what he de-
nominated a "protocol" that he made. The patient was pro-
foundl.y nneouscions — that is to say, she was incapable of
being aroused by questions addressed to her in a loud tone ;
she was not conscious during the ten minutes they were in
the room ; during this time Dr. Harris had a conversa-
tion with the trained nurse in which she informed him that
she had kept a clinical record, which she exhibited; on that
record or chart, which this witness identified, there was en-
tered an item on the date of Tuesday, 22-x-'02, 10:20, ''cham-
pagne," then a medical sign meaning two ounces, then the
word "cap.," abbreviation for capsule, followed by the figure
1 in parenthesis, thus (1) ; the nurse volunteered the state-
ment that this capsule contained grains one-fourth of mor-
phine ; this witness was positive from his protocol and from
his independent recollection that the trained nurse had told
him that that particular capsule contained one-quarter of a
grain of morphine; as he was looking over the clinical chart
she volunteered the information that at 10:20 that morning
the patient had received a capsule containing morphia, grains
one-quarter, such a record having been there shown. Dr.
Harris swore that he knew nothing about the testimony given
in the case by the nurse. Miss Laemmel, or the attending
physician, Dr. Card.
Miss Laemmel denies that she made any such statement
and avers that what she did say to this physician was dif-
ferent. Upon the occasion of his call and after he and Mr.
Friedlander had looked at the patient and called to her and
Friedlander walked out of the room, Harris remained and
turned around and began looking at Mrs. Casey, and the
nurse said to him, "you know, doctor, she is under the in-
fluence of opiates," but she said nothing about any par-
ticular opiate, nor the amount of morphia; it was opium that
was administered.
There is here a conflict between Dr. Harris and Miss
Laemmel, but wherever the truth lies between them, it is
Estate of Casey. 81
plain that an opiate was given at that hour, notwithstanding
Dr. Card's positive assertion that if such were the case
he would have detected it. Whatever the quantity given it
i.s clear the patient was suffering intense pain and it was
necessary to alleviate her distress, and it required, as a rule,
according to Dr. Card and the nurse, a full dose to ac-
complish that purpose. What effect did this dose have upon
her? Was she after this mini.stration mentally active as
usual? Was her mind in its normal state — that is, was it
able to operate according to the principles which govern the
intellect in its healthy and natural condition? Was her in-
telligence intact and her volition dominant? Were her fac-
ulties full and her consciousness complete? Confessedly her
body was unsound; had she a sound mind when this instru-
ment was executed ? Whether the clinical record of the nurse
can be relied upon or not, whether at 10:20 A. M. on Octo-
ber 21. 1902, one quarter of a grain of morphia was given
to the testatrix, which would have put her into a stupor
at 10 :30 A. M. when the instrument was executed, or whether
a reduced quantity of the anodyne was administered, she
had been suffering excruciating bodily pain to relieve which
the drug was given. The doctor had directed the nurse to
omit the potion on that morning, so that the patient's mind
niio-ht be clear, but it seems Miss Laemmel deemed it neces-
sary in her discretion to depart from this direction on ac-
count of the agony which her charge was suffering. Accord-
ing to the evidence of Dr. Card, a full dose was essential
for repose and its effect would be immediate, lasting from two
to four hours; inferentially, a reduced quantity would have
its proportionate effect.
What does the nurse say as to the facts and circumstances
of this case and her relation to the subject matter? Miss
Laemmel seems to be an educated and intelligent woman,
whose calling compels clo.seness of observation of the occur-
rences of the sickroom and strictness of attention as to the
condition and conduct of the patient. She testified that Dr.
Card had instructed her on the day before the will was
made to give no opiates to Mrs. Casey until the document
should be signed, because he wanted her mind clear; the
Prob. Dec, Vol. II— 6
82 Coffey's Probate Decisions, Vol. 2.
doctor told her the lawyer was to come the next morning ; the
nurse was there when he came, at that time the mind of the
patient was good and clear; it was between 10 and 11 o'clock
when the attorney arrived; he read the will to INIrs. Casey
and asked her to listen, and then there was a mistake in
the will about some trunks and she corrected that and it
was changed; she was lying on the couch and the lawyer
was sitting beside her when he was reading; after the cor-
rection was made she wanted to be propped up to sign the will
and the nurse placed her in that posture ; she asked for her
pillows and then she took the pen in her hand and she had
the book under the will and the lawyer held the book; she
made two blots on the paper and she said she could not hold
the pen; said she was weak, "or something to that effect,"
"she intimated she could not sign," and asked the attorney
to do it ; he did not want to do it and did not do it ; the nurse
could not remember whether the lawyer said anything to Mrs.
Casey as to who could do it or who ought to do it. but finally
Dr. Card signed it. After successive entreaties from the
examiner to the witness to try and remember about this mat-
ter, the nurse having said at first that she thought that the
lawyer told Mrs. Casey that Dr. Card could sign it for
her, but she did not remember the particulars of that in-
cident; she at length answered in response to the specific in-
quiry : ' ' Well, try and remember about that. Do you remem-
ber that I told her that Dr. Card could sign it for her?
Yes, sir, very positive, ' ' and then the doctor signed the name
"Sophia Casey."
In answer to a question which suggested that at this time
the doctor was standing right by the bedside of Mrs. Casey
and the lawyer standing by her, the witness said no, she
thought he wrote standing up in front of a table by the win-
dow; the lawyer told the doctor where to put the patient's
name and to leave the space for a cross, and then it was
handed back to her and she made the cross with a pen ; she
was still on the couch; the witness could not remember that
Mrs. Casey said anything at the time and did not remember
how long it took to read the will to her; the nurse was stand-
ing in front of the lawyer and the doctor was beside her;
Estate of Casey. 83
after the patient made her mark the lawj^er took the paper
to the table and wrote something to signify that she could
not write her name, and after he did that he read it and
then they signed their names.
Miss Laemmel was of opinion that Mrs. Casey was of sound
mind at that time, as at all times when she was not under
the influence of a full dose ; there was no set time for the
administration of the opiates — they were given when neces-
sary; the nurse gave about two-thirds of a capsule on the
morning of the 21st at 10 :20, a third less than the customary
capsule; despite the doctor's direction to the contrary she
gave this opiate because the patient was in great pain and
cried out for relief; she was in pain before and after this
opiate; it did not stupefy her or put her to sleep at all; it
did not cloud or affect her mind ; the opiate was lessened in
quantity purposely so as not to induce a state of stupor; she
was in pain all that morning and made outcries signifying
her suffering ; the witness could not remember the exact words
addressed to the patient by the attorney; it was something
about her last will and testament or that kind of legal talk,
and testatrix said "yes," as near as the nurse could remem-
ber, "she intimated yes"; what the patient answered the
nurse could not remember, but she knew that the testatrix
"was satisfied with everything that went on that morning all
the way through ' ' ; after the execution of the will another
opiate was given, opium or morphine, a full capsule, under
direction of Dr. Card who was present; Mr. Jennings had
gone away ; this was at 11 :30 A. M. ; it took longer than usual
to take effect because she was in severe pain; more than one
was given before any effect could be had upon her, she took
still another later. The date in the clinical record "22"
should be "21" ; the true date should be the 21st; it was Tues-
day, 21st October, 1902 ; the nurse had not slept much at
night and had the dates mixed on that account; at 2 in the
afternoon one suppository was administered and the witness
remembered giving the patient an opiate in the evening at
about 7 'clock ; it was about half-past 8 or 9 when Mr. Fried-
lander and Dr. Harris called; Mrs. Casey was then sleep-
ing as a consequence of taking the opiates; after some ob-
84 Coffey's Probate Decisions, Vol. 2.
jection on her part she admitted them ; after they had looked
at her, Friedlander spoke to her, and attempts were made
to arouse her without avail. Dr. Harris asked some ques-
tions, felt her pulse, examined the clinical record, made some
memoranda. Mr. Friedlander said he would return some-
time when she would not be under the influence of an opiate,
but of course no set time could be given in such a case, "be-
cause there is no set time for pain"; no one else was present
during this conversation than the two visitors and herself
and the sleeping patient ; Mr. Fisher was out in the hall.
After the departure of these callers, the patient took nour-
ishment up until 12 o'clock and she seemed just about as
usual ; from midnight a change took place, and at 3 :15 in
the morning of the 22d she died.
Miss Laemmel told Dr. Card that she had given the
patient an opiate that morning ; she so informed him im-
mediately upon his arrival; she remembered ver\^ distinctly
that she apprised the doctor of that fact so soon as he came
in on the morning of October 21st, 1902.
The witness described the gentleman who came in with
Mr. Friedlander as "the little doctor," because he was dim-
inutive in stature as compared with the other, who was such
a large man ; she learned that his name was Dr. Henry
Harris. At the time they came in the patient was sleeping
from the effects of the opiates, "she was under the influence
of an opiate; she was doped"; the witness in answer to a
question repeated the expression ' * doped. " " Question : Who
doped her? Answer: I did"; she had a full dose — that is
to say, of opium or morphine ; she had a whole capsule given
in the evening, consequently she was asleep from its influence.
During the intervals of Miss Laemmel's absence from her
duties as nurse, Mr. Fisher attended to the patient ; when
she went to her meals which occupied about one hour three
times each day he was alone with Mrs. Casey; at least three
hours every day; the patient slept a great deal; he never
made any special note of her being unconscious ; he conversed
with her frequently about many things ; she would talk about
the Bohr case, and about going to Vallejo or Napa Springs
or some other place ; Fisher never broached the Bohr business
Estate of Casey. 85
to Mrs. Casey unless she began to talk on that topic, he never
alluded to it ; he had told her the litigation was getting on
all right ; sometime along in October he first learned from
her that she intended to make a will and leave him $5,000
to fight the case, but he did not tell her that the amount was
excessive for that purpose; she had also stated that when she
was done with her propert.y she intended to leave it to him,
for he had been like a son to her and had taken care of her
business and herself and she intended to remember it.
Some of the items on the clinical records are in Fisher's
handwriting, and he was in almost constant attendance, al->
ways at call, in and out of the sick room noting different
things that she would need, waiting on her when necessary,
and ministering to her need in the absence of the trained
nurse.
Fisher testified that she had made more than one will in
which he was the recipient of a legacy of $10,000; but noth-
ing more than his bare statement is in evidence on this point.
In view of the estimated value of the estate, such a provi-
sion for him would have been equivalent to excluding her
relatives from any participation in her property, and noth-
ing is clearer throughout than her intention to provide for
them. All the wills in evidence, and the fragment of a will
in which her kin and their places of residence are enumerated
in detail, which were made prior to her last sickness carry out
consistently her intention as to her relatives.
As to the provision for Fisher, it seems to have been gen-
erous in all the wills, more than he had any real claim to, and
the assertion that he occupied a filial relation to the decedent,
a sort of adopted son, is not borne out by the evidence. Mrs.
Pinkstone's testimony is that ]\Irs. Casey never referred to
him as her son ; he was simply her agent and the receipts given
by him to her seem to show that he was paid for his services ;
she was under no natural or other obligation to provide for
him ; but he evidently had acquired influence over her which
he was in a position to exercise testamentarily.
From the 29th of September, 1902, until her death Fisher
was with her day and night ; he had the opportunity of unduly
influencing her, and while the law will not presume the ex-
86 Coffey's Probate Decisions, Vol. 2.
ertion of undue influence from the mere fact of opportunity
or a motive for its exercise, nor permit it to be found upon
suspicion, yet the proof must generally be gathered from the
circumstances of the case, for very seldom is a direct act of
influence patent, as a person intending to control another's
action, especially as to a will, is not apt to proclaim that
intent; and among the circumstances from which proof must
generally be gathered of undue influence exercised upon a
testator are: (a) Whether he had formerly intended a dif-
ferent testamentary disposition; (b) whether he was sur-
rounded by those having an object to accomplish to the ex-
clusion of others; (c) whether he was of such weak mind as
to be subject to influence; (d) whether the alleged will is
such a one as would probably be urged upon him by those
surrounding him; (e) whether the persons who surrounded
him Avere benefited by the alleged will to the exclusion of
formerly intended beneficiaries.
That the mind of the decedent was intent upon her German
kin is shown by her persistent purpose throughout the series
of wills in providing for them up to the last document in
which Fisher is more favored. The circumstances conspire
to the conclusion that he was alwavs using influence in one
way or other, above the usual persuasion of a friend, to di-
vert her own design to provide for her relatives; that such
was his object and scheme may be seen from numerous items
in evidence. The testimony of Mrs. Adelseck, her son and
Mrs. Eissler tend to establish this issue, and the incidents at
Redwood and Sunol show his willingness and endeavor to
influence her last disposition, at a time when by reason of
her age and ailments she had lost her will power; and the
suspicion of the lawyer himself, the draftsman of the will,
is significant and suggestive when he asked decedent if any-
body had used undue influence over her — an unusual question
for an attorney to ask of a person in her situation.
Mr. Jennings, the attorney for proponent, who had sole
charge of the case for the will of October 21, 1902, offered
himself as a witness in that behalf, and gave a long and
circumstantial account of his connection with the matter from
the start. His acquaintance with the decedent began on the
Estate of Casey. 87
tenth day of September, 1902 ; subsequently he prepared sev-
eral wills for her at her request — four at least, perhaps five,
two of which she executed, in his presence. He was called to
her house by her on the 19th of September, 1902, and in
response to that call and before the 25th of September, he
drew three wills for her which were submitted to her in the
interim; the third or fourth, he was not positive which, she
executed on the 25th of September, being the same instru-
ment that is offered here for probate by Mr. Friedlander, one
of the executors named therein. On the 10th of October
Mr. Jennings visited Mrs. Casey in response to her request ;
he was not sure whether it was a telephonic message or
whether Mr. Fisher personally came to him, but the statement
was that she wanted to make some changes in her will; the
document executed on the 25th of September had been de-
posited with Mr. Friedlander at her request and was there-
after continuously in the custody of that gentleman, upon
whom Mr. Jennings called and told him that he had been
summoned by Mrs. Casey to make some change in her will
and asked him if he would intrust him with the paper for
that purpose. Mr. Friedlander said he did not feel like
giving it without a written order, but Mr. Jennings had no
such order. On the morning of the 10th, however, the lawyer
called on her and found her lying on the couch; she greeted
him as he entered and bowed and smiled ; he sat down by her
side, took a pamphlet out of his pocket and in response to her
statements concerning the will made certain memoranda ; in
pursuance of the instructions received from her on that oc-
casion he prepared another will for her entirely not having
the one previously executed in his possession. Mr. Fried-
lander still retained that document, refusing to yield it with-
out a written order from the testatrix, and the lawyer had
no written order nor authority of any kind from Mrs. Casey
to obtain that instrument, so he had to do without it. After
preparing an entirely new will for her, Mrs. Casey said to
the attorney that she would send for him when she was
ready to execute it, or she would go down to his office for
that purpose.
88 Coffey's Probate Decisions, Vol. 2.
On the 20th of October, 1902, Mr. Jennings received a
telephonic communication from Dr. Card, asking him to
go out as Mrs. Casey desired to execute her will and to bring
the document with him for that purpose ; he fixed 10 :30 next
morning himself as the time for calling, and he arrived there
about that time ; he entered the room ; the first person he
greeted was Mrs. Casey who was looking toward him as he
walked in; she smiled recognition and as he approached held
out her hand, and he sat beside her, having said "Good
morning; how are you?" Mrs. Casey asked him if he had
brought the will, and he replied that he had and took it out
of his pocket and handed it to her; she held it in her hand
a second or so, then opened it, and looked at it; she turned
over each sheet and then asked him to read it; he called
Dr. Card and Miss Laemmel, who were both in the room,
to come and be witnesses to his reading; they came, he read
the will to Mrs. Casey ; read each word to her carefully ; when
he reached the portion bequeathing Mr. Fisher $5,000, he read
that to her with a slow emphasis and he stopped and read it
to her again, and then remarked to her, "I think, Mrs. Casey,,
that is the only change made in the will, the only change in
the verbiage of the will, perhaps"; she bowed assent to that;
he continued reading the same clause and got down to the
point where it said "four trunks"; she stopped him almost
immediately after the word "four — four trunks," and she
said "six trunks"; he said to her that he would change that
right then and he made the change then and there; she said
"six trunks and the furniture here," and he altered accord-
ingly; he then read it over to her and she said, "That is
right"; he then continued reading the will and when he fin-
ished, she said: "That is all right"; he asked two or three
times; she did use the word "satisfied," "that is all right
now, " " I am satisfied " ; he asked her if she wished to sign it
and she replied, "Yes, I want a pen"; the pen and ink were
handed to her; the will was placed on a book in front of her,
she in the meantime requested to be propped up and the nurse
did so, and Mrs. Casey took the pen in her own hand and put
it down upon the paper; her hand trembled quite a great
deal ; she made a blot or two, then remarked that she was too
Estate of Casey. 89
weak to write; she then asked the attorney, "Cannot you
write it for me?" He said he could if she would direct him,
but he would rather not, that there was her lifelong friend,
the doctor, to ask him; she said to the lawj^er, "Can the
doctor sign my name?" And was answered that he could
if she would direct him to do so ; she then directed the doctor,
who has forgotten that fact in his testimony; Dr. Card
was within three feet of her; Mr. Jennings said to him, "She
wants you to sign her name, Doctor," who asked if he could
do it legally, and he was informed that he could, she directing
it to be done ; the doctor asked the lawyer where and how,
and he was shown ; he did so standing up, then the paper was
returned to the testatrix and the attorney asked her if she
could make her mark, she said she could ; the will was placed
upon a book before her; she took the pen again in her hand,
the lawyer being very close to her and she was leaning
slightly behind him. Mr. Jennings then said, according to
his testimony, "Now, do you declare this to be your last will
and testament?" She said, "I do"; he then said, "I want
you to repeat the words yourself," and she repeated, "I de-
clare this to be my last will and testament"; he then asked,
"Do you want the doctor and this lady to sign the will as
witnesses?" And she replied, "I want you all to sign it";
the attorney then said to the doctor and to Miss Laemmel,
"She wants us all to sign it; will you sign it as witnesses?"
Each signified acquiescence and signed. Mr. Jennings men-
tioned, when Mrs. Casey said that she could not write her
name, that he would have to make an addition to the attesta-
tion clause covering the fact that she herself did not sign her
name but made her mark, and after that he went to a table
in the bay window and wrote the addendum ; then they all
subjoined their names as witnesses. The attorney had taken
the will to Mrs. Casey readj^ to be executed under the sup-
position that she would be able to write her own name, and the
attestation clause was prepared upon that assumption. Tes-
tatrix spoke in a low tone of voice, she did not speak very
loudly, yet, notwithstanding that Mr. Jennings has himself
an infirmity of hearing, he testifies that he could hear her
quite distinctly, since he was seated close to her. After the
90 Coffey's Probate Decisions, Vol. 2.
execution of the will, testatrix told him to take it down to
Mr. Friedlander, and after a few minutes delay he departed
and proceeded to the Anglo-California Bank, where that gen-
tleman was engaged, and related to him what Mrs. Casey
had done, and said that he had her last will executed that
morning, which she directed him to deposit with Mr. Fried-
lander; that gentleman hesitated, saying that he had been
informed she was very ill; the lawyer said she was, and
coupled the condition of depositing the will with Mr. Fried-
lander that he should give a receipt for it, which he declined
to do. The attorney said that he would have to retain pos-
session of the document unless he could secure a receipt for
it showing what he had done with it, whereupon Mr. Fried-
lander asked if the lawyer had any objection to leaving the
will until some time in the afternoon, when in the meantime
he should consult his attorney, there was no objection to this
course, and the instrument was left without any receipt;
subsequently on the same afternoon, at about 3 or 4 o'clock,
the lawyer again waited on Mr. Friedlander to obtain his
final decision about the receipt which he still refused to give,
so the attorney declined to leave it with him, and taking it
back placed it in his own safe deposit box, where it remained
until it was produced and filed in court. During all the pe-
riod of his acquaintance with her, Mr. Jennings testified that
testatrix was of sound mind.
The attending physician and the nurse testify that the
mind of the testatrix was always clear, and yet neither of
them could say even approximately how much of the time
she was awake or in stupor. The physician could not testify
whether on any day between the 10th and 20th of October
he found her awake or asleep. His final reason for know-
ing that she heard and understood the entire instrument, the
reading of which, as he testified, was continuous, without
stops, was that she had her eyes open; but, so far as these
witnesses are to be depended upon, the proof is far from
satisfactory as to the mental condition of the testatrix.
Here was a woman almost four score years of age ex-
hausted in body, distracted in mind by her disease, suffering
untold agony, relieved only by the administering of power-
Estate of Casey. 91
ful opiates, which, as a rule, induced immediate stupor, sub-
jected to the strain of circumstances necessarily attendant
upon so solemn a transaction, with a brain enfeebled by age
and debilitated by drugs, and yet it is asserted that she was
of sound mind and fully competent to make her will, and
the subscribing witnesses are relied upon to establish that
fact. The execution of a will at so recent a date by a woman
on the last da.y of her life, during the last hour of her al-
leged consciousness, is an experience which even those who
are frequently called upon to attest wills are not apt to for-
get ; so much more should the incidents of such an event
fasten themselves upon the memory of persons who for the
first time act as attesting witnesses.
It was the duty of these witnesses, by reason of their vo-
cation, to be vigilant and attentive to details. According to
the testimony of each, the testatrix was not expected to sur-
vive long, she might die at any time ; the doctor had been
striving to call up the lawyer several days previously because
of his apprehension of the nearness of the event, and now
when the attorney was in attendance in the exercise of his
calling, when their attention was urgently directed to all the
minutiae of the execution of the will, it was of the utmost
importance that their own consciousness should be clear and
their memory active as to what occurred. But their recollec-
tion could not be aroused into activity, even under the pres-
sure of leading questions which certainlj^ should have awak-
ened the most dormant faculty.
Mr. Jennings' own admitted infirmity of hearing must
have necessitated a more than ordinary loudness of tone from
the feeble old lady on her deathbed, and that circumstance
of itself should have impressed indelibly the minds of such
intelligent witnesses and participants in the ceremony; but
they cannot recall the facts as narrated by him.
It seems scarcely possible that, in these circumstances, the
instruction given by him to the testatrix as to the man-
ner of acknowledging the execution of the will and her re-
peating in an audible voice, "I declare this to be my last
Mall and testament," should have been utterly forgotten by
the attending physician and the trained nurse, knowing, as
92 Coffey's Probate Decisions, Vol. 2.
they did, that they were to attest the last will of that djdng
woman.
Dr. Card testified that there was nothing said about its
being her will and last testament; he did not know that
the decedent said anything at all, and he repeated in his
testimony, as hereinabove narrated, that there was nothing
said that it was her last will and testament at all ; he took it
for granted she was supposed to know without saying so at
all. The nurse, Miss Laemmel, testified in answer to the
question that the patient "intimated yes," but she could not
remember more definitely or distinctly. The attestation
clause sheds no light upon the situation, for the doctor testi-
fied that when it was read to them by the lawyer, he paid
no attention to it and the nurse was about equally inattentive.
Neither sustains the attorney as to what occurred as to the
essentials of execution. If he admonished them, as he testi-
fies, and if the declaration of decedent was really made in
the formal manner related by him, and the words ascribed
to her were spoken by Mrs. Casey, it is passing strange that
they being present and close to her side, with their attention
specially challenged to the occurrence, cannot remember the
substance, even if they forgot the tenor ; but they unite in the
statement that she said nothing on the subject and made no
request of them to sign as witnesses or declaration as to the
character of the instrument. If the declaration and remarks
imputed to her were made, the witnesses either could not
have been present or they must have heard them. If they
were present and did not hear, because they paid no attention
to the act, the execution was defective. It is not merely a
matter of entire lack of memory. The existence of the es-
sential facts of the execution and acknowledgment is not
to be deduced at all from their want of recollection: the
effect of their evidence is, that what the attorney testified to
regarding the declaration of decedent did not take place at
all or did not occur in their physical or mental presence ; they
were absent either in body or in mind. The testimony of the
doctor admits of no other explanation ; and the statements of
the nurse are scarcely less conclusive. The failure of mem-
ory or the indifference or the want of attention of the doctor
Estate op Casey. 93
and the nurse as to facts of such paramount consequence,
which it was their duty to note with care, and concerning
which they are said to have been cautioned, necessarily im-
pairs the value of their testimony as to the condition of mind
of the decedent at the time of the transaction ; but even if
there had been in form an acknowledgment of the will by
decedent, its valid execution cannot be determined alone by
what was said or what may have been said by her at that
time; it can be determined only by considering what was the
condition of her mind at the time.
What was that condition? The clinical chart contains
matter of significance that cannot be gainsaid; if its inser-
tions are to be taken as true, then at the time the will of
October 21, 1902, is alleged to have been executed the dece-
dent could have had no volition and no power of reasoning
whatever; she must have been, in the phrase of the witness,
Mrs. Eissler, "too dead" to do or say anything, much less
indulge in the formal dictation of a testamentary declaration.
The clinical record is pregnant proof to this point, and not-
withstanding the testimony of the nurse, in her endeavor to
falsify her own entry as to the amount of morphia admin-
istered by her at 10 :20 on the morning of that day, the in-
trinsic probability of the chart conveys conviction to the
mind. Her testimonj^, however, is materially affected by the
evidence of Dr. Harris as to the statement she made to
him on the evening of that day when he, in company with Mr.
Friedlander, visited Mrs. Casey and found her profoundly
unconscious and irresponsive to every attempt to arouse her.
The nurse used one word that expressed her own judgment of
the condition of the decedent at that time ; she said Mrs.
Casey was "doped" by her; and the chart demonstrates that
the extraordinary amount of morphia and champagne given
to the patient on that day was because she was so agonized by
pain as to necessitate narcotization. Even if the dose given
to her at 10:20 o'clock on that morning was a reduced one,
she was still at the time of the alleged execution of the will
in a highly narcotized condition ; she could not have had that
clear mind to secure which Dr. Card prohibited the pre-
scription, which prohibition the nurse felt constrained to dis-
94 Coffey's Probate Decisions, Vol. 2.
obey because of the patient's outcries, symptomatic of in-
tolerable anguish. Now, if her bodily torture was dimin-
ished by the opiate, her mental power must have been les-
sened, because the effect of the drug was to allay pain by
abating sensibility. The purpose of the prescription was to
dull the sense of torment, and so far as it was efficacious it
clouded her mind. If it did not perform that office, it was
useless to administer it; and when the doctor forbade the
nurse to give any opiate to the patient, because he wanted
her mind to be clear that morning, he conceded that its ef-
fect would be to darken, if not temporarily to destroy, the
understanding of the decedent. His own testimony shows his
idea, when he positively declared that no opiate had been
administered that morning, for if it had, he could have de-
tected it, in face of the fact that the nurse admitted and
the chart showed the contrary.
Whether a full dose, an entire capsule, or only two-thirds
thereof, was administered to decedent at the hour of 10:20
o'clock on that morning, she was not in a state of mind cal-
culated to capacitate her for so grave an affair. She was
either in a stupor from a full dose or partially stupefied and
distraught with pain so far as she was sensible of her con-
dition, and in either case she could not have had a sound and
disposing mind at the time of the event in issue. From the
combined effect of her sickness, the frequent administration
of opiates, the intensity of her pains, and the other influences
acting upon her will and understanding, she must have been
at that time incapable of voluntary and intelligent disposi-
tion. It is deducible by fair inference from the circumstances
already adverted to, that the document dated October 21,
1902, was inspired by the proponent ; that his was the active
agency in its creation; his was the dominant influence that
inspired its construction. A careful examination of the evi-
dence will justify a finding that Fisher was the informing
spirit of this testament and that it was his will, rather than
that of the nominal testatrix. In the view taken by the
court, the feud between Fisher and the Bohrs is not inter-
esting nor relevant, except as it emits some scintilla of light
on the main issue.
Estate of Casey. 95
The preponderance of proof is that the instrument dated
October 21, 1902, was not the free and conscious act of the
decedent, and it must, therefore, be denied probate. In re-
lation to the document of September 25, 1902, the contest
is not sustained, and upon the whole record that paper seems
to be established and it is admitted as her last will.
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. Rep. 181, 63 Pac. 413, 53 L. R. A.
387; Gwin v. Gwin, 5 Idaho, 271, 48 Pac. 295; Estate of Holman,
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 Pac. 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.
Rep. 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. Rankin, 189 Mo. 677, 107 Am. St. Rep.
391, 88 S. W. 696; note to Richmond's Appeal, 21 Am. St. Rep. 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. Rep. 181, 63 Pac. 413, 53 L. R. 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. Rep. 181, 63 Pac. 413, 53 L. R, A. 387; Dausman
96 Coffey's Probate Decisions, Vol. 2.
V. Eankin, 189 Mo. 677, 107 Am. St. Eep. 391, 88 S. W. 696. How-
ever, although circumstantial evidence may be sufficient, 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,
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 sufficiency of the evidence to estab-
lish undue influence, see Estate of Welch, 6 Cal. App. 44, 91 Pac.
336; Estate of Carrigar, 104 Cal. 81, 37 Pac. 785; Estate of Sil-
vaney, 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.
In Determining the Capacity of a Person to Make a Valid Will,
the state of his mind, not the condition of his body, is the object of
inquiry. An individual may be in a state of extreme physical weak-
ness and imbecility, he may be in great distress and pain, lie may be
broken in health or mortally ill, and yet so far retain his mental
faculties as to possess testamentary capacity. Furthermore, the fact
that one is far advanced in years, and is not immune from the in-
firmities incident to old age, does not render him incompetent to ex-
ecute a will. It may be conceded that bodily infirmities may be
taken into account in determining whether or not the testator actually
was mentally incompetent to make a will, or whether or not he was
swayed by undue influences in making the disposition of his property
which he did, but of themselves they do not establish testamentary
incapacity: 1 Ross on Probate Law and Practice, 24, citing numerous
authorities.
Estate of Dalton. 97
Estate of JOHN PATRICK DALTON, Deceased.
[No. 18,262; decided January 30, 1899.]
Revocation of Probate — Jurisdiction of Court. — The jurisdiction of
a probate judge relating to tlie revocation of probate is wholly statu-
tory, and in exercising it, he can in no way alter or disregard the
provisions of the statute.
Revocation of Probate — Executor as a Party. — It seems the execu-
tor is not a necessary party to a proceeding for the revocation of the
probate of a will, instituted after a final decree of distribution is
made and he has been discharged.
Revocation of Probate — Nature of Proceeding — Citation. — A pro-
ceeding to revoke the probate of a will is a proceeding in rem and
not inter partes; the court already has jurisdiction of the res, and
the office of citation is not, like a summons, to give jurisdiction, but
to give all parties an opportunity to appear and take sides.
Revocation of Probate — Nature of Proceeding — Discharge of Execu-
tor. — Under sections 1327 and 1328 of the Code of Civil Procedure,
providing for the revocation, upon a citation to the executor and
others, of the probate of a will within one year after probate, an ap-
plication therefor may be made notwithstanding a final decree of
distribution has been made and the executor discharged. The stat-
ute keeps alive ad interim the character of the executor for the pur-
pose of hearing the application for revocation.
Revocation of Probate — "Proceeding" or "Action." — An applica-
tion to revoke the probate of a will is a "proceeding" and not an
"action."
Revocation of Probate — Subject Matter and Jurisdiction. — The sub-
ject matter in an application to revoke the probate of a will is the
same as the subject matter of the proceeding to probate the will.
The ultimate issue, to wit, whether the will should stand as probated,
is the same.
Jos. M. Nougues, for petitioner and contestant.
Chas. E. Nougues, of counsel.
Sullivan & Sullivan, for respondent.
COFFEY, J. The question in the case at bar, pure and
simple, is whether when a will has been admitted to probate
any person interested may at any time within one year after
such probate contest the same or the validity of the will.
Prob. Dec, Vol. II — 7
98 Coffey's Probate Decisions, Vol. 2.
The will of the decedent was admitted to probate, Febru-
ary 16, 1897; a decree of final distribution of the estate was
made, entered and filed January 13, 1898 ; a decree of dis-
charge of the executrix was made, entered and filed January
14, 1898. The petition of certain of the heirs at law of
decedent for a revocation of the probate of the will was filed
February 11, 1898 ; and a citation regularly issued and served.
A demurrer to said petition was filed by Kate Dalton,
"Executrix of and sole legatee and devisee under the will
of John Patrick Dalton, deceased," on various statutory
grounds, but on the argument respondent chiefly relied upon
the grounds :
1. That the court has no jurisdiction of the person of re-
spondent; 2. That the court has no jurisdiction of the sub-
ject of the action; 3. That the court has no jurisdiction to
entertain said petition.
theories of demurrant.
The theories on which counsel for respondent contend that
the petition for the revocation of the probate of the will in
this case could not be maintained are ingenious, and, at first
blush, almost convincing, and may be stated as follows :
1. Because the widow, who was appointed executrix, has
been discharged, and the estate has been distributed to the
widow as sole legatee, and she could not be sued as executrix.
2. Because by the decree of final distribution the superior
court has lost jurisdiction of the estate of Dalton, deceased,
to entertain a contest of the will, filed within one year's time.
3. Because the decree of distribution is conclusive of the
rights of property of the other heirs at law of Dalton, and
as the decree had been made before the year had elapsed for
the contest of the will, that deprived the contestants of the
time and their statutory rights.
4. Because as the prayer of the petition prays for the re-
lief of further administration and distribution of the prop-
erty in a manner different from the decree as made, the pe-
tition is defective on jurisdictional grounds of contest.
To support the first ground of demurrer above stated, re-
spondent contended that the estate having been finally ad-
Estate of Dalton. 99
ministered and a decree of discharge of the executrix made
and entered, that no executrix existed, and as a citation in a
case like that at bar is required by section 1328, Code of
Civil Procedure, to be issued to (amongst others) "the exec-
utors of the will," that, therefore, this proceeding cannot
be maintained.
THE GOVERNING SECTIONS OF THE CODE.
Proceeding-s to revoke the probate of a will are governed by
sections 1327-1332, Code of Civil Procedure.
Section 1327 provides in its first clause that : ' ' When a will
has been admitted to probate any person interested may, at
any time within one year after such probate, contest the same
or the validity of the will."
To maintain the contention of counsel for respondent, it
is absolutely necessary, first of all, to interpolate in that
clause after words, "such probate" the words (or their
equivalent) "or prior to a decree of distribution, or of dis-
charge of the executor." Such interpolations in a statute
under section 1858, Code of Civil Procedure, are expressly
forbidden to the judge.
In the Estate of McLaughlin, 1 Cof. Pro. Dec, new edition,
page 257, this court has already held that : ' ' The jurisdiction
of the probate judge relating to the revocation of probate is
wholly statutory. In exercising this power, he can in no way
alter or disregard the provisions of the statute."
Sections 1327, 1328, Code of Civil Procedure, provide for
the filing of the petition and the issuance of a citation.
And in San Francisco Protestant Orphan Asylum v. Su-
perior Court, 116 Cal., at page 447, 48 Pac. 379, it is held
that the filing of a petition and the issuing of a citation
within the year gives the court jurisdiction over the proceed-
ing: See, also. Estate of Cunningham, 54 Cal. 556, 557; Es-
tate of Sbarboro, 63 Cal. 5, 8.
In considering the question here, we must always bear in
mind the distinctions between the definitions of an exec-
utor and an administrator. For definitions, see Croswell'a
Executors and Administrators, pages 3-5; Wharton's La\i'
100 Coffey's Probate Decisions, Vol, 2.
Dictionary, title "Executor"; Abb. Desc. Wills & Adm., sees.
101-104 et seq.
In the Estate of Chittenden, 1 Cof. Pro. Dec. 1, a state-
ment is made of the
DISTINCTIONS BETWEEN EXECUTORS AND ADMINISTRATORS.
The provisions of the code that a contest may be initiated
in one year, and that a citation must be issued to the exec-
utor upon the filing of the petition, show the fallacy of the
contention that a discharge of an executor so ends his func-
tions of executor that for the purpose of the contest he no
longer exists as executor.
If that were so, then all the provisions of the statutes in
relation to the revocation of the probate of a will could be
set aside and nullified by the action of an executor.
In an estate of the value of $10,000 or under, the adminis-
tration can be fully had, and the estate closed in less than
six months, and in an estate of over $10,000 in value, it can
be fully administered and distributed in less than one year.
Hence, it would be absolutely necessary for the purpose of
sustaining the contention of counsel for respondent to inter-
polate certain words in section 1327, Code of Civil Procedure.
The case of Willis v. Farley, 24 Cal. 491, although that
was the case of an administrator, at first reading would ap-
pear to be an authority sustaining the position of respond-
ent ; but an examination of that case will show that the
question as to whether an administrator even after final set-
tlement and discharge in the probate court becomes functus
officio was not necessary to be decided.
An examination of this case discloses that while the judg-
ment arrived at was undeniably correct, yet the reasoning
leading to the result was imperfect. It turned upon the fore-
closure of a mortgage given by an intestate to secure a debt,
which on his death was, according to the finding of the court,
properly allowed as a claim, but not paid by the adminis-
trator. The widow and heirs of the intestate were parties
defendant in the suit for the foreclosure, and defended,
among other things, on the ground that, after final settle-
ment of the estate in the probate court, the plaintiff had
Estate of Dalton. 101
brought an action in the district court to foreclose the mort-
gage, against the administrators, in which there was judg-
ment.
It is very obvious that the judgment in the former case
constituted no bar to that under consideration, for it was not
between the same parties. But if, under our statute, the ad-
ministrator of a deceased mortgagor was a necessary party
defendant (after final settlement of his estate in the probate
court), then the court could not have rendered the judg-
ment it did, in favor of the plaintiff and against the widow
and heirs, who were the only parties defendant ; and, if he
was not, then his status was perfectly indifferent.
Thus it appears that whether an administrator, after final
settlement and discharge in the probate court, became functus
officio was not necessary to be decided.
Mr. Justice Currey, who wrote the opinion in that case,
quotes as authority for his decision on this proposition the
case of Taylor v. Savage, Exr., 1 How. 282, 11 L. ed. 132,
which case, however, decides only that an administrator who
has been by the probate court removed for cause can no
longer represent the estate.
the effect of the discharge of executrix.
In the case at bar, the discharge of Mrs. Dalton as exec-
utrix does not purport to, nor does it, in terms, revoke her let-
ters testamentary.
By an examination of the decree of discharge, it will be
observed that the executrix is simply discharged from all lia-
bility to be hereafter incurred. And that is in effect the
only thing that is accomplished by a simple decree of dis-
charge. The discharge refers only to acts theretofore done.
As an illustration : Suppose an executor or administrator
files an account accompanied with a petition for a distrib-
ution showing that he has on hand as a balance of the es-
tate the sum of $10,000 in money; that this money is dis-
tributed by a decree of the court ; that vouchers for the pay-
ment thereof are filed aad thereon the executor or admin-
istrator discharged: Can it be contended that subsequently,
if it is ascertained that in truth and in fact he had $20,000
102 Coffey's Probate Decisions, Vol. 2.
in hand, that the probate court could not cite him to appear
and answer in his capacity as administrator or executor?
Query : In an application for the revocation of probate of
will is it necessary to serve the citation on the executrix at
all?
In re Whetton, 98 Cal. 204, 32 Pac. 970, the supreme court
says that : ' ' When a will is attacked after probate, section
1327, Code of Civil Procedure, makes the executor a neces-
sary party to the proceeding, etc." Was not the word "nec-
essary" inadvertently used, and should not the word used
have been the word "proper," for the reason that section
1329, Code of Civil Procedure, provides that: "Personal ser-
vice of a citation having been made upon any persons named
therein, the court must proceed to try the issues of fact
joined, etc."?
And in San Francisco Protestant Orphan Asylum v. Su-
perior Court, 116 Cal., at page 447, 48 Pac. 379, the court
italicizes a portion of section 1329 Code of Civil Procedure :
"Any of the persons named therein."
Further: An executor is not a necessary party to a pro-
ceeding like that at bar, for the reason that if the probate
of a will should be revoked, he most certainly has no inter-
est, and should the probate be maintained (after distribution
and discharge), he has no interest, because he has admin-
istered fully the assets of the estate and received or waived
his commissions.
Counsel for demurrant contend that all the sections of
the code governing the matter, contemplate that a revoca-
tion proceeding where resorted to shall be resorted to prior
to final distribution and pending the administration of the
estate, but in the Estate of Joseph, 118 Cal., at page 662, 50
Pac. 768, the supreme court says: "The order admitting the
will to probate is not final so long as proceedings may be
taken to revoke the probate. In all subsequent stages the
contest is but a part of the proceeding to probate the will,
and is not a new and distinct proceeding. The subject mat-
ter is the same, and the ultimate issue, to wit, whether the
will in question should stand as probated is the same."
Estate of Dalton. 103
In Tapley v. McPike, Admr., 50 Mo. 589, it is held that
an order admitting a will to probate does not become ab-
solute as to those who have a right to contest the will till
after the lapse of time in which they have a right under the
statute to contest it.
The original decree of the court as regards the probate
of a will is not of a final or indefeasible kind. Indeed, it
is little more than a prima facie declaration, an interim or-
der, so to speak, to enable an executor to act, unless his title
shall be disputed and disproved.
the nature of the proceeding
To revoke the probate of a will is stated in San Francisco
Protestant Orphan Asylum v. Superior Court, 116 Cal., at
page 453, 48 Pac. 379, to be: "A proceeding in rem and not
inter partes. The court already had jurisdiction of the res,
and could have proceeded with the trial of the contest with-
out further notice had the statute so provided. The contest
could have been treated as an incident in the administration
which was already pending. The office of the citation then
was not like that of a summons to give jurisdiction. It was
an extra protection provided by the statute."
nature of contest of will.
That is to say, the contest of a will is a proceeding to de-
termine the character of the instrument itself. For that rea-
son it is held in Estate of Doyle, 73 Cal. 572, 15 Pac. 125,
that a default could not be entered against the party fail-
ing to appear who had not been served with citation. And
this matter seems to have been decided in other contests
where the question has arisen; for instance, in Reese v.
Nolan, 99 Ala. 203, 13 South. 677; Lyons v. Hammer, 84
Ala. 197, 5 Am. St. Rep. 363, 4 South. 26; and it has been
held in Blakely v. Blakely, 33 Ala. 611, Leslie v. Sims, 39
Ala. 161, and Clemens v. Patterson, 38 Ala. 721, that the ob-
ject of a citation is to afford the parties interested in the
wall an opportunity of choosing which side of the contest
the}^ will take, and they are not considered parties to the
104 Coffey's Probate Decisions, Vol. 2.
suit unless they come forward and by some affirmative act
engage in the litigation.
evident purpose of contest sections in code.
The evident purpose of sections 1328, 1329, Code of Civil
Procedure, is to give all parties an opportunity to appear
and take sides in a cause, but the cause in itself not being an
action inter partes, but an action, or, rather, proceeding in
rem, therefore, it is not necessary that all the parties should
be before the court, for if the will be valid and proper par-
ties are before the court to litigate and present the issues,
and have the same legally tried, the interests of all parties
are preserved by the sustaining of the will, and if, on the
other hand, the instrument is invalid, then they have no
interest in the property purporting to be granted, devised
or bequeathed by the will, for the question is simply the va-
lidity or invalidity of the will.
w^hat gives jurisdiction.
In the following cases it is held that the filing of the pe-
tition for revocation of probate gives the court jurisdiction :
In re Gouraud, 95 N. Y. 256; In re Laytin's Estate, 15
Misc. Rep. 660, 37 N. Y. Supp. 1125 ; In re Phalen, 51 Hun,
208, 4 N. Y. Supp. 408 ; In re Soule, 46 Hun, 661.
In the Estate of Crozier, 65 Cal. 332, 4 Pac. 109, the su-
perior court had revoked the probate of the will and the
supreme court says: "Here the revocation of probate and
the surcease of appellant's functions as executor became
complete eo instante the order of revocation was entered:
Code Civ. Proc, sec. 1331."
The executor appealed from the order of revocation, and
a special administrator having been appointed, the exec-
utor applied for a writ of review to review and annul the
order so appointing a special administrator.
doctrine declared by supreme court.
The supreme court says at page 333 : "It is insisted by
petitioner that his appeal stays all further proceedings in the
court below, based upon or having relation to the order of
Estate op Dalton. 105
revocation: Code Civ. Proc, sec. 946. The contention in its
logical results is that the will still remains a probated will
of decedent, and the petitioner still the acting executor, with
power to collect assets, pay debts, and do all other acts and
things which an executor may do. ' '
And the court, after commenting on this proposition, say
at page 334: "The code provides for an appeal from the
order of revocation, and therefore the statute keeps alive, ad
interim, appellant's character as executor for the purposes
of the appeal. "
APPLICATION OF THE DOCTRINE.
Applying that doctrine to the case at bar, it logically fol-
lows that the code provides for the application for the revo-
cation of the probate of a will at any time within one year
after probate, and the issues of a citation (amongst others)
to the executor; and therefore the statute keeps alive ad
interim the character of the executor for the purposes of the
hearing of the application for revocation, notwithstanding
he may have been discharged and even in terms (as was not
done in the case at bar) his letters testamentary revoked by
the order of discharge.
JURISDICTION OF SUBJECT MATTER.
As to the ground of demurrer that the court has no ju-
risdiction of the "subject" or subject matter of the action:
This is a "proceeding" and not an "action": See Estate of
Joseph, 118 Cal. 662, 50 Pac. 768.
The subject matter in an application to revoke the pro-
bate of a will is the same as the subject matter of the pro-
ceeding to probate the will, as said in the Estate of Joseph,
118 Cal., at page 662, 50 Pac. 768: "The ultimate issue, to
W'it, whether the will in question should stand as probated,
is the same."
THE SUBJECT MATTER OF THIS PROCEEDING
Is the right of the petitioners to have a judicial declaration
(should the evidence warrant it) that the will in question
never existed, and there can be no doubt of the jurisdiction,
106 Coffey's Probate Decisions, Vol. 2.
or, in other words, of this court's right to hear and deter-
mine that matter.
As to the contention of demurrant that petitioners ask
for a further administration of the Estate of Dalton, should
the application for revocation be granted and as, according
to their contention, the assets and property of the estate hav-
ing been distributed, there is no estate left to administer
upon, and therefore no further administration can be had,
that is answered by the suggestion that if the petitioners have
invoked relief to which they are entitled, and also some to
which they are not entitled, the fact that they have asked
too much, is no reason why they should not get that to which
they are entitled.
As to the contention of demurrant that in case of the
revocation of the probate of this will a different disposi-
tion of the estate of Dalton could not be secured from that
made by the decree of distribution, see Samson v. Sam-
son, 64 Cal. 327, 30 Pac. 979; Thompson v. Samson, 64 Cal.
330, 30 Pac. 980.
In deciding the matter before the court under the statute
governing the proceedings for the revocation of the probate
of the will as it is written, the court must ascertain whether
petitioners are "persons interested in the estate," of the
deceased Dalton; whether "within one year after probate"
of his will that they "have filed in the court in which the
will was proved a petition in writing containing his
' (their) ' allegations against the validity of the will or
against the sufficiency of the proofs and petitioning that the
probate may be revoked"; whether upon filing of the peti-
tion the citation required by section 1328, Code of Civil Pro-
cedure, was issued, and whether that citation has been
served as required by section 1329, Code of Civil Procedure,
upon "any of the persons" named in the citation. The rec-
ord before the court showing that all these questions must
be answered in the affirmative, it follows that the demurrer
must be overruled, and it is so ordered, with leave to respond-
ent to answer within ten days.
Estate of McLaughlin. 107
Estate of CHARLES McLAUGHLTN, Deceased.
[No. 3061; report of referee filed June 4, 1885, adopted and con-
firmed by the court November 24, 1885.]
Appraisers. — The Court or Judge must Appoint three disinterested
persons to appraise the estate of a decedent, and the three appointees
must discharge the duty imposed upon them unless they renounce the
trust.
Appraisers. — The Provision of the Statute that "Any Two" of
the appraisers "may act" only means that the valid action by two
of the appraisers, where the third appointee refused to, or for some
reason not imputable to the acting two did not act, would be a suf-
ficient execution of the powers invested in and the duties imposed
upon the three; and is intended to prevent a failure or invalidation
of the whole appointment.
Appraisers — Performance of Duties. — Appraisers are Officers of the
court, and, in the execution of their appointment, bound to the per-
formance of a judicial duty, in which the creditors and heirs of the
deceased, and the court, are interested and concerned. Whether or
not one of the appraisers shall perform his judicial duty cannot de-
pend upon the whim or willfulness of the executor or administrator,
or the two other appraisers.
Appraisement — Validity When Made by Two Appraisers. — The legal
status of an inventory and appraisement which is merely the act of
two appraisers, without an opportunity given to the third appraiser
to act and a failure on his part to do so, is that it is invalid, and an
imposition and fraud upon the court. Therefore, in the case of ap-
praisements returned by two appraisers only, a statement should be
annexed to and form part of their report, showing the reason for
the nonaction of the third appointee.
Appraisers. — Persons in the Employment of the Executrix should
not be appointed appraisers.
Appraisers. — The Court Should Designate the appraisers of estates
of decedents, rather than to accept nominations made by the execu-
tor.
Appraisers. — The Compensation of Appraisers is regulated and fixed
by statute; the maximum allowance is $5 to each appraiser for every
day's service by him, and evidence of a quantum meruit in excess
of that amount is inadmissible.
Appraisers. — The Extent of an Appraiser's Duty was called in ques-
tion where it appeared "he might have received memoranda as ap-
praiser, or had access to, or knowledge of such, showing a statement
of property differing from that returned in the oflEicial inventory,"
and it was suggested that our statute, although vague, seems to con-
108 Coffey's Probate Decisions, Vol. 2.
vey the idea that the inventory of a decedent 's estate is not neces-
sarily made up by the executor or administrator alone, but more prop-
erly in conjunction with tiie appraisers.
Appraisement — Description of Property. — The appraisers, as well
as the executor or administrator, must "give a full description" in
the inventory and appraisement of every item of property belong-
ing to and character of claim and interest in the right of decedent,
and whether it be community or separate property; and "make dili-
gent inquiry" in that regard.
Appraisement. — The Eequirements of the Appraisers' Duties as to
the Inventory and appraisement, and return thereof, set forth in de-
tail.
An Appraiser's Right to Compensation is Confined to the Days
actually and necessarily employed in the appraisement; constructive
services or charges will not be recognized. An itemized account of
each day (by specific date) employed, and the particular services
thereon rendered, must be made and returned as a part of the ap-
praiser's report; and if compensation is waived, that fact must be
noted.
Appraisers — Gratuitous Service. — In the Appointment of Appraisers,
where the circumstances merit gratuitous service, the court will ap-
point persons to act without charge; and the court's discretion to
make such appointment may be invoked in all proper cases.
In this case the inventory and appraisement was, accord-
ing to the custom of the conrt in probate, handed by the
clerk, upon filing-, to the judge, and the latter noticing that
the appraisers' return showed a service of eighty-one days,
whereas the bill was $4,500, — that is, $1,500 for each ap-
praiser, — ordered that a reference be had to examine into
the services performed by the appraisers, and the amount
claimed by them as compensation, and appointed Timothy
J. Lyons as referee. The referee fixed a time and place for
proceeding with the reference and gave notice to the apprais-
ers and all parties interested. The executrix did not appear,
but her attorney addressed a letter to the referee refusing
to attend, and claiming that the judge's appointment was
void, as the law gave him no power to make such an order
or reference of his own motion ; the appraisers responded
in person (their representation by attorneys was only after
the coming in of the referee's report), and certain heirs at
law appeared by their attorney.
Estate of McLaughlin. 109
The testimony developed the fact that the appraisers' bill
of $4,500 for services was by special agreement with the
executrix upon the claim that if the appraisers traversed
every portion of the extended acreagre of the country^ lands,
it would involve a large consumption of time and unnecessary
labor, and it was therefore a matter of convenience and ex-
pediency to all parties that a fixed sum be ao;reed upon as a
reasonable compensation in the premises. (See "An Act to
Establish a Tax on Collateral Inheritances," etc., approved
March 23, 1893, section 12, Stats. 1893, pages 196, 197.)
It also appeared that one of the appraisers had been a
clerk of the decedent, and was familiar with the various
properties owned by him, and he was examined by the ref-
eree as to his knowledge as to the accuracy of the inventory.
The referee inquired fully into the proceedings of the ap-
praisers by a detailed examination of each of them, and
returned with his report a verbatim transcript of the pro-
ceediugrs under the reference from the stenographer's notes.
The appraisers were awarded $405 each, instead of $1,500
each as charged and collected by them.
The confirmation of the report was opposed by the exec-
utrix upon the ground, inter alia, that there was no jurisdic-
tion to order the reference; but the court sustained its
jurisdiction in the premises and approved the referee's re-
port. Afterward the court ordered published in pamphlet
form that part of the report which is here reproduced.
E. P. Cole, for appraisers.
John B. Mhoon, for absent heirs, in support of report.
The REFEREE.—
THE STATUTE AS TO APPRAISEMENTS, ETC.
The law governing .... all questions involving the
making and return of inventories and appraisements of the
estates of decedents, and the appointment, duties and com-
pensation of appraisers in connection therewith, is found in
sections 1443 to 1451, inclusive; 1469. and 1475 to 1478, in-
clusive, of the Code of Civil Procedure of this state. But
the particular section which is decisive of the questions in
110 Coffey's Probate Decisions, Vol. 2.
this reference is section 1444, Code of Civil Procedure, per-
haps the most important of all the sections relating to ap-
praisers and appraisements, which reads: "To make the
appraisement the court, or a judge thereof, must appoint
three disinterested persons (any two of whom may act^, who
are entitled to receive a reasonable compensation for their
services, not to exceed five dollars per day, to be allowed
by the court or judge. The appraisers must, with the inven-
tory file a verified account of their services and disbursements.
If any part of the estate is in any other county than that
in which letters issued, appraisers thereof may be appointed,
either by the court or judge having jurisdiction of the es-
tate, or by the court or judge of such other county, on re-
quest of the court or judge having jurisdiction."
THE two questions UNDER SECTION 1444, CODE OF CIVIL
procedure.
The two important questions arising under this section are :
1. As to the sanction or authority given to the exercise by
two of the appraisers of the powers conferred upon and
vested in the required three appointees; under what circum-
stances it is proper and valid, and to what extent; 2. As
to the official character, capacity and duty of the appraisers,
and each of them ; their right to compensation ; upon what
it rests, and by whom and how fixed and regulated.
THE PRACTICE OF TWO APPOINTEES ACTING.
As to the first question, it is and has been for years past
the custom in probate practice, to more or less extent, for
the executor or administrator, with or without his attorney's
advice, or for the attorney himself, to select such two of
the three appointed and required appraisers as may be suit-
able to his or their choice for the performance of the "du-
ties imposed upon the three," leaving the third appointee
wholly ignorant as to the fact of his appointment, or if the
fact should come to his knowledge (and the present judge
of the probate department, Hon. J. V. Coffey, has found it
necessary to make a rule that the clerk give official notifica-
tion of all appointments), insisting upon the legal right to
Estate of McLaughlin. Ill
dispense with his services — to disregard the appointment.
This practice is not carried on with the permission of the
court or judge, but often, if not nearly always, in open and
indifferent opposition to the wishes and legal judgment of
the court; and further, it is not merely excused, but claimed
to be justified, by the "very letter of the law."
THE STATUTE AS TO THE POV^ER OF TWO OF THE APPOINTEES
AND THE REASON OF IT.
The following is the "letter of the law," found in section
1444, Code of Civil Procedure, quoted above, which, as we
have said, is not offered in extenuation, but confidently re-
ferred to in legal justification of the practice, to wit : ' ' The
court, or a judge thereof, must appoint three disinterested
persons (any two of whom may act)." Upon this language
it is substantially argued by those who pursue or countenance
the practice referred to, that though the law provides that
there must be three appointees, yet any two of them may
choose for themselves, or permit themselves to be chosen by
the parties interested, to the exclusion of the unchosen third
appointee (with entire indifference as to the necessity of
his knowledge or consent), as those of the appointees who
shall perform "the duties imposed upon the three." It may
be remarked here as worthy of note that the statute nowhere
authorizes the court or judge to appoint, in any case, two ap-
praisers in the place of three; neither does it give, nor in
any manner intimate, the power or authority on the part of
the court or judge to select or authorize the selection of the
two appointees, who "may act" under the appointment to
the three; nor has such power or authority been ever judi-
cially claimed or assumed, nor do we believe it would be
claimed to exist under the statute. Is it possible, then, that
what the court or judge — the sole appointing power — cannot
do or authorize, can be done by a person interested, or by
any two of the appraisers? Without dilating upon it, it is
undoubtedly true, as a general proposition, that where the
"verv^ letter of the law" is relied upon in opposition or in-
difference to the spirit and apparent intention, as well also
the plain common sense of the thing, it must lead to the
112 Coffey's Probate Decisions, Vol. 2.
evident absurdity that the result of the contention in this
ease brings us to, in the proposition that, although the law
prescribes that the court must appoint three disinterested
persons to execute an important judicial duty, yet any two
of the appointees may themselves arbitrarily choose or per-
mit themselves to be interestedly chosen to perform such
duty which the law mandatorily provides that three must
be disinterestedly appointed to perform. The statute, in
using the language, parenthetically ("any two of whom
may act"), obviously meant no more than that the valid
action by two of the appraisers, where the third appointee
refused to, or for some reason not imputable to the acting
two did not act, would be a sufficient execution of the powers
invested in and the duties imposed upon the three.
Without specifically inquiring into them, it is easily con-
ceived that many contingencies might arise where one of
the appraisers would not or could not act, and the law, with
this in view, undoubtedly made the provision that such an
occurrence would not cause a failure of or invalidate the
whole appointment. However it is noticeable that in section
1475, Code of Civil Procedure, it is provided, with reference
to the appraisement of the homestead and report thereof,
that : ' ' Any two of the appraisers concurring may discharge
the duties imposed upon the three, and make the report. A
dissenting report may be made by the third appraiser." It
might be contended that by this section the intention of the
law is shown to be that in all cases the appraisers should
take the oath, and proceed to the execution of their duties,
but that the agreement of two in the act of appraisement is
a sufficient execution of the appointment. This contention
would seem to be true, at least in the case of the appraise-
ment of the homestead. Another thing is noticeable in the
language of section 1475, just quoted, in that it provides
how the appraisers "may discharge the duties imposed upon
the three." The mere reading of this can leave no other
impression than that this duty is imposed by the order of
appointment, especially as the statute nowhere else speaks
to the contrary; this view seems also in complete agreement
with the language of section 1445, Code of Civil Procedure,
Estate of McLaughlin. 113
which provides that the appraisers take an oath "before pro-
ceeding to the execution of their duty" — a duty evidently
considered as imposed by the provisions of the preceding
section (1444, above quoted), prescribing the order of ap-
pointment.
This view is further in accordance with the settled prin-
ciple that, where one is appointed to a position of trust, and
especially so in the case of an official trust, like the appoint-
ment of appraisers, unless a renunciation is shown, the law
will presume an acceptance.
Now, it cannot be questioned that appraisers are officers of
the court, and in the execution of their appointment bound to
the performance of a judicial duty — a duty that cannot be
underestimated — in the execution of which the executor or
administrator, the creditors, heirs and the court are inter-
ested and concerned. The work of the appraisers is to the
court, the creditors and the heirs, the beacon light and safe-
guard respecting the knowledge and value of the estate. Can
it be said, then, that whether or not one of the appraisers shall
perform such judicial duty depends upon the whim or will-
fulness of the executor or administrator, or the two other of
the appointees? Does the renunciation or acceptance of the
official trust devoMng upon this one appraiser, by the order
of appointment, rest upon the decision of either or all of the
parties named, -without the knowledge, permission or consent
of the appraiser? These questions bring their own answers —
even an agent of the appraiser could not determine, or be ap-
pointed to determine, this personal trust for him.
AUTHORITIES AS TO THE POWER OF TWO APPOINTEES.
The following authorities are submitted as decisive of the
view to be taken upon this question :
In Caldwell on Arbitration (second American edition), the
author says, at page 202: ''If a cause be referred to three
persons, and they, or any two of them, have power to make the
award, it may be signed bj' two only, provided the third have
notice of the meetings, and be not excluded by force or
fraud"; citing Mackintosh v. Blythe, 1 Brod. & B. 269.
Prob. Dec, Vol. 11^8
114 Coffey's Probate Decisions, Vol. 2.
In Burton v. Knight, 2 Vern. 514 (aee, Kel. 132; and see
Ives V. Metcalf, 1 Atkyns, 64), a submission was to three arbi-
trators, or any two of them. "The award was set aside,
and it was observed by the court, upon this occasion, that
where parties submitted their differences to three arbitrators,
or any two of them, and one of such persons was excluded by
force or fraud from the meetings held for determining the
matter, that alone would be enough to vitiate the award."
Strong animadversion was also cast by the court upon the
partiality apparent in permitting one party to be present
at their meetings, without having given the other an oppor-
tunity to attend: Caldwell on Arbitration, pp. 209, 210. To
the report of this case in second Vernon, the following note is
appended at page 515: "The ground expressly taken by the
Lord-keeper for confirming the decree at the rolls is: 'For
that there appeared a design and fraudulent exclusion of
Roger Hudson the third arbitrator, and that thereby the
other two arbitrators, Shallet and Nash, had assumed to them-
selves that power which was intrusted to all three.' "
Particular attention is directed to the language of this case
last underscored, as peculiarly applicable to the probate prac-
tice under discussion.
Without a seeming desire to quibble about words, it niay
be noticed that in the above quoted cases the submission to
arbitration was to three persons, or any two of them ; whereas,
our statute respecting appraisers prescribes and the order of
appointment is to three persons, not to three or any two of
them — the further provision that two "may act," meaning,
as we have shown above, to become effective only in a proper
case, and to prevent the failure of the entire order.
penal liability in case of unauthorized appraisement by
TWO.
If, as shown by the above citations, in the case of a sub-
mission to arbitration by the parties themselves, an award
which is the result of a practice precisely the same as that
often adopted in the making and return of appraisements in
probate is thereby tainted and vitiated, so as to be rendered
fraudulent, is not the probate practice which we have been
Estate of McLaughlin. 115
considering — where the appointees are not the choice of the
parties interested, but the selection of the court, and ipso
facto its officers — a fraud and imposition upon the law and
the court, and do not all the parties implicated in the viola-
tion of the law become liable not merely to the animadversion
of the court, as they did in the cases cited — where the arbi-
trators were not officers of the court, but only the appointees
of the parties— but to such penalties as it might consider
proper ?
LEGAL STATUS OF APPRAISEMENTS BY TWO.
We conclude, then, on this head, that the legal status of
an inventory and appraisement which is merely the act of
two appraisers, without an opportunity given to the third
appraiser to act, and a failure on his part so to do, through
declination or other cause entitling the two other appraisers
to proceed without him, is that it is invalid and fraudulent,
and the act of the two appraisers without such sufficient cause
is a willful violation of the law, and an imposition and fraud
upon the court appointing them. If this view be adopted by
the court, it might be advisable to make a rule respecting in-
ventories and appraisements returned signed by two ap-
praisers only; perhaps that in such cases a statement of the
acting appraisers, subscribed by them, showing the reason
for the third appraiser not acting, should be annexed to and
form part of the appraisement.
APPRAISERS MUST BE '' DISINTERESTED PERSONS.''
It was developed in the proceedings on the reference that
two of the appraisers .... were at the time of their
appointment, had been, and continued in the employment of
the executrix individually, also that their appointment was
at the suggestion and solicitation of the executrix, and the
matter was called to the court's attention. There can hardly
be a doubt that they were both improper persons for the
office of appraiser, in view of their relationship to the execu-
trix at the time of their appointment; even in the case of
arbitration, where the interested parties themselves appoint
the arbitrators, it is naturally held that no person in the em-
116 Coffey's Probate Decisions, Vol. 2.
ployment of or pecuniarily obligated to the parties is quali-
fied to act — even a cousin has been excluded on account of
his mere kinship This circumstance illustrates the
danger of such suggestions being at all entertained by the
court ; and the following authoritative statement as to the
New York statute, upon which our own is based, is perhaps
worthy of consideration in this regard: "The surrogate has
the selection of the appraisers, and the reason of the stat-
ute would seem to require that he should designate these offi-
cers in order to insure as well competency as impartiality in
the discharge of their duties": Dayton on Surrogates, p. 244.
OFFICIAL CHARACTER OF APPRAISERS AND THEIR COMPENSATION.
As to the second question proposed above under section
1444, Code of Civil Procedure — the official character, capacity
and duty, and the compensation of the appraisers — no diffi-
culty can be perceived. The appraisers being appointed by
the court for the performance of a judicial duty, are of course
ipso facto officers of the court for that purpose ; therefore
their character, capacity and duty are official.
Their compensation, and how and by whom it is fixed
and regulated, rest upon the following simple and plain lan-
guage of said section 1444, viz.: "Who [the appraisers] are
entitled to receive a reasonable compensation for their services,
not to exceed five dollars per day, to be allowed by the court
or .judge. The appraisers must, with the inventory, file a
verified account of their services and disbursements. ' '
AUTHORITIES AS TO THIS COMPENSATION.
In the Succession of Caballero, 25 La. Ann. 646, the court
of last resort of Louisiana held : ' ' The law fixes fees of ap-
praisers; where illegal charges are apparent on the face of
the record, they can be corrected." Here the court, of its
own motion, reduced the charge of $300 to $16.
In Walton v. Creditors, 3 Rob. (La.), 438, held: "A
notary's fees being fixed by the law, he can under no pre-
tense demand additional compensation." In this case the
court said : ' ' The lower court ruled that ' evidence to estab-
lish a quantum meruit is entirely misplaced in relation to
Estate of McLaughlin. 117
those oflficial services for which a tariff is fixed by law.' It
does not appear to us that the court erred. If the fees al-
lowed to notaries by law for services rendered by them be
insufficient, they must seek relief by an application to the
le^slature for a new tariff or by resigning their offices.
Courts of justice cannot countenance any other mode."
So, in Hawf ord v. Adler, 12 La. Ann. 241, held : " A notary
cannot increase his legal fees for official acts by evidence
of a quantum meruit for extra services. A relaxation of the
rule would make the fee bill a dead letter." (Also: Dayton
on Surrogates, p. 255; McClellan's Surrogate's Court Prac-
tice, 2d ed., pp. 371, 372; North's Probate Practice (111.),
sec. 316; Horner's Probate Law, sec. 182.)
CONCLUSION AS TO BASIS AND LIMIT OF COMPENSATION.
The above authorities necessitate no comment or explana-
tion, nor does the statute itself.
We therefore conclude that the law fixes the fees of ap-
praisers in conjunction with the allowance by the court ; that
the maximiun allowance is $5 to each appraiser for every day's
service by him; that evidence of a quantum meruit in excess
of $5 per day is not admissible ; and under no pretense, nor
by any ingenuity whatsoever, can the law be evaded or vio-
lated.
appraiser's duty in CONNECTION WITH THE PREPARATION OF
THE INVENTORY, SECTIONS 1445, 1449, CODE OP CIVIL PRO-
CEDURE.
The extent of the appraiser's duty was called in question
on the reference, it appearing that "he might have received
memoranda as appraiser, or had access to or knowledge of
such, showing a statement of property differing from that
returned in the official inventory."
While our statute is not as clear as it could be, yet we be-
lieve the same idea is found in sections 1445 and 1449, as is
clearly expressed in the New York statute, namely : That the
inventory^ is not necessarily made up by the executor or ad-
ministrator alone ; but more properly in conjunction with the
appraisers. In section 1449 it is clearly expressed that the
118 Coffey's Probate Decisions, Vol. 2.
appraisers must sign the inventory, and that then the execu-
tor or administrator must take and attach the oath as to its
correctness. This oath seems proper upon reading the section
(especially in connection with section 1445) only after the
inventory and appraisement have been completed ; not before
the appraisement has been made, as is always the practice.
NOTE AS TO SPECIAL INSTRUCTIONS AND SPECIAL
RULE OF JUDGE COFFEY AS TO APPRAISE-
MENTS AND APPRAISERS.
Under directions of Judge Coffey whenever appraisers are
appointed by him, the clerk sends a printed notification to
each appraiser, as follows:
[Title of Court and Cause.]
I am instructed by the Judge presiding in the Probate
Department of the Superior Court to inform you of your
appointment as Appraiser in the above estate.
Accompanying this notice is the following :
Instructions to Appraisers.
The attention of appraisers is especially called to the pro-
visions of the law governing them in the discharge of their
duty. (Part III, Title XI, Chapter IV, Article I, Code of
Civil Procedure.) The compensation of appraisers is limited
to five dollars a day for each day of actual service. No ' ' con-
structive" charge will be allowed. The subjoined directions
should be read and pursued by appraisers :
1. Before proceeding to appraise the property take and
subscribe the oath on the first page of this blank; this may
be done before any officer authorized to administer oaths.
2. Set down in the inventory all money belonging to de-
ceased ; if there be none, state that fact.
3. Give a full description of all real estate and the im-
provements thereon, and set down the value thereof in dollars
and cents in figures in the right-hand column opposite.
4. All other personal property, setting down each article
separately, with the value thereof in dollars and cents in
figures opposite to the articles respectively', including all debts,
Estate of McLaughlin. 119
partnerships and other interests, bonds, mortgages, notes and
other securities for the payment of money belonging to the
deceased, specifying the name of the debtor in each security,
the date, the sum originally payable, the endorsements thereon
(if any) with their dates, and the sums which, in the judg-
ment of the appraisers, may be collected on each debt, interest
or security.
5. Appraise the property at its actual value as near as
you can, as joii are sworn to do so, as the court depends on
the appraisement to know the value.
6. Make diligent inquirj^ and find out all the property be-
longing to the estate, and state, as far as the same can be
ascertained, what portion of the property is community prop-
erty, and what portion is the separate property of the de-
ceased.
7. Foot up the value of the several items, and set down
the total at the bottom of the column in dollars and cents
in figures, certify to the total value of the property, and sign
the certificate at the foot of the inventory.
8. If you require pay for your services as appraisers, fill
out claim on page two of this blank, sign and swear to same.
Judge Coffey has also promulgated tlie following as a part
of his special rules in probate.
Appointment of Appraisers.
In the matter of the appointment of appraisers, attorneys
may nominate to the court for appointment one person, and
no more, subject to the court's approval. In all cases where
the circumstances merit gratuitous service the court will ap-
point competent persons to act without charge.
Admonition to Appraisers.
Not a Bene. — The attention of appraisers is especially called
to the provisions of the law governing them in the discharge
of their duties. (Part III, Title XI, Chapter IV, Article I,
Code of Civil Procedure.) The compensation of appraisers
is limited to five dollars for every day actually and necessarily
employed in the appraisement. No "constructive" charge
will be allowed. In case no charge be made and compensation
120 Coffey's Probate Decisions, Vol, 2.
is waived, that fact must be noted in the return of the ap-
praisers: See Stats. 1893, pp. 196, 197.
In all proper cases the discretion of the court may be in-
voked to appoint competent appraisers to act without com-
pensation.
An Itemized Account hy Appraisers Necessary.
The attention of appraisers is also directed especially to
the necessity of making an itemized account of their charges
and disbursements. Day and date must be given in every
instance. Experience has taught the Court the necessity of
rigorously enforcing this rule, which, although in existence
for years, has been occasionally disregarded. It is enjoined,
therefore, upon the appraisers appointed by the Court to pre-
serve data in detail of their charges and annex the same to
their report.
In the Matter of the Estate of ADOLPH SUTRO, De-
ceased,
[No. 51 (new series) ; decided October 30, 1905.]
Jurisdiction of Probate Court — How Far Extends. — Prior to the
amendment of 1895 to section 7.38 of the Code of Civil Procedure,
jurisdiction to determine the rights of heirs, devisees and legatees,
and the validity of testamentary trusts, appears to have been vested
exclusively in the superior court sitting in probate.
Trust — Determining Validity Prior to Probate of Will. — Under sec-
tion 738 of the Code of Civil Procedure, as amended in 1895, the valid-
ity of a testamentary trust in real estate may be determined in ad-
vance of the probate of the will, in a suit to quiet title or to deter-
mine an adverse claim.
Appeal — Affirmance Without Opinion, — The affirmance of a judg-
ment by an appellate court, although without an opinion, is a deter-
mination that the objections argued against it are unavailing.
Probate Jurisdiction — Regulation by Legislature, — The probate jur-
isdiction of the superior court is essentially under the control of the
legislature, which may enlarge or restrict it.
Charitable Trusts — Parties in Suit to Quiet Title, — In a suit to quiet
title, which involves the validity of a charitable trust created by will,.
Estate of Sutro, 121
the court held that, in the circumstances of the ease, the primary-
trustees sufficiently represented the beneficiaries, and that neither the
attorney general nor the ultimate trustees in being were necessary par-
ties defendant.
Charitable Trusts — Invalid Accumulations. — Section 723 of the Civil
Code, which pro\ades that "all directions for the accumulation of the
income of property, except such as are allowed by this title, are void,"
applies to accumulations for charities.
Charitable Trusts — General Charitable Intent. — The testamentary
trust involved in this case is found by the court not to evince a
"general charitable intent" which will be given effect so far as is
consistent with the rules of law, if the mode prescribed is unlawful.
Charitable Trusts — Purposes "Charitable or Other." — A testa-
mentary trust which contemplates purposes "charitable or other" can-
not be sustained as a charitable trust.
Charitable Trusts — Noncharitable Purposes. — If some of the pur-
poses of a testamentary trust are charitable, while some are not, no
part of it is sustainable as a charitable trust, if the bequest violates
the law regulating the validity of private trusts.
Bishop & Wheeler, Charles S. Wheeler, J. F. Bowie, and
Garret W. IMcEnerney, for Applicants.
Bradley & McKinstry, J. C. McKinstry, Morrison & Cope,^
R. D. Silliman, for Opponents.
COFFEY, J. Adolph Sutro died in the city and county
of San Francisco, state of California, on the eighth day of
August, 1898, leaving a will dated May 22, 1882. The will
contained a large number of specific bequests and devises,
while a large tract of land, comprising a portion of the San
Miguel Eancho and part of the Cliff House Eanch, in the
city and county of San Francisco, was reserved and made
the subject matter of an attempted trust. The provisions
by which it was attempted to create this trust are as follows:
"XXV I will and direct that the title in fee of said
parcels of land marked I and II last hereinbefore described
and each thereof shall go in trust, into the hands of my
executors, to be by them preserved and managed for and
during the period of ten (10) years after my death, and then
by my executors to be conveyed in trust, to the board of trus-
tees hereinafter provided for, but not to be sold or disposed
of by anyone having the charge or management thereof dur-
122 Coffey's Probate Decisions, Vol. 2.
ing the life of the last survivor of my children mentioned in
this will, and at the death of said last survivor, or as soon
thereafter as may be deemed, by the board of trustees here-
inafter mentioned for the' best interest of the Trust herein-
after created and appointed, I will and direct that the bulk
or the whole of said parcels of real estate marked as afore-
said I and II shall be sold by said board of trustees, as
speedily as possible, but in the manner they shall deem best,
for realizing the largest amount, and the funds realized
from such sales, shall be managed and applied by said Board
of trustees for such charities, institutions of learning and
science and for premiums to be set apart for distinguished
scholarships and scientific discovery and inventions as shall
be directed by my said executors; such directions by my
executors shall be filed and recorded in the County Recorders
office at the City and County of San Francisco, State of
California, within three (3) years after my death, and the
directions so given, filed and recorded within the time so
prescribed, shall be obligatory and binding upon said Board
of Trustees, and in default of said executors giving such di-
rections within the time and in manner aforesaid, I direct
that said Board of Trustees at once organize and elect proper
officers for such organization, and within twelve months there
after designate, select and appoint by resolutions entered
on their minutes such application of the funds realized from
such sales, but strictly within the purposes and objects herein
by me mentioned, as they may deem best, for record with
said County Recorder, a copy of such resolutions, and my
executors shall upon a default on their part as aforesaid
have no further right to give such directions to said Board.
"XXVI The said Board of Trustees shall consist of the
Governor of the State of California; the chief Justice of the
Supreme Court of the State of Calif orna ; the presiding Judge
of the Superior Court of the City and County of Sau Fran-
cisco; the United States Circuit Judge for the district of
California ; the Mayor of the City of San Francisco ; the
President of the Chamber of Commerce of San Francisco ; the
President of the board of Regents of the University of Cali-
fornia and their successors in office; and six other members
Estate of Sutro. 123
to be chosen by the above named officers, three from
amongst the leading Bankers of San Francisco, and the other
three from amongst my male descendants, or those of my
brothers, bearing the name of Sutro ; and in case of the
abolishment of any of the offices named, or the reorganization
of the government or Courts of the State of California; or
of the City and County government of San Francisco, effect-
ing a change in the name or office of any of the officers men-
tioned, the remaining trustees shall immediately proceed to
select officers filling positions corresponding thereto as near,
as in their judgment may be.
"XXVII At the end of the ten years herein mentioned
for the execution of the trust and duties of my executors as
aforesaid, and prior to the conveyance herein provided to be
made of said property to said board of Trustees, my executors
shall obtain in writing from the officers herein named to con-
stitute part of said board, their acceptance of said Trust,
and also the acceptance in like form of the six members
thereof to be elected as aforesaid and in case of any of such
officers or such members elect shall decline, or for thirty
days thereafter neglect so to signify their acceptances such
vacancy or vacancies shall be filled by the members who have
accepted out of other incumbents of Federal, State or County
or city officers and other persons as the case may be.
"The acceptances and declinations herein mentioned shall
be filed in the permanent archives of the Board.
"XXVIII Two thirds of said Board of trustees, at any
meeting thereof shall have full power to execute all duties
of their trust and a majority of my executors shall have full
power to act in the discharge of their duties.
"XXIX In order that my executors, or in their default,
the trustees, shall in respect to the directions they are au-
thorized to give, be able to act more intelligently in carrying
out my instructions, they shall offer in three of the leading
newspapers of San Francisco, of New York and of London,
England, by an advertisement in each of said papers, and
pay the sum of fifteen hundred dollars for the best practical
treatise upon the application and management of the funds
to be realized from such sales, in conformity with the gen-
12-t Coffey's Probate Decisions, Vol. 2.
eral outlines herein expressed; one thousand dollars for the
second in merit of said treatises and five hundred dollars
for the third in merit of said treatises. — But my executors
are not authorized, but are expressly prohibited, to direct
the application of any of the funds realized from the sale
of said lands to any institution or charity or purpose, which
is in any degree sectarian or in the management of which
any priest, clergyman, minister or rabbi, or other religious
officer shall have any voice or control, and said Board of
Trustees are in like manner prohibited from making any
such application.
"XXX My executors, during the time that they shall
have the charge and management of the parcels of real es-
tate herein referred to and numbered I and II, may lease
the same for said term, collect rents, pay taxes, assessments
and the necessary expenses connected therewith, and in case
there shall remain a surplus, may employ such surplus in
the improvement of said property in such manner as to in-
crease its value and income. — And said board of trustees
shall, after they take the management and charge of said
property in like manner lease and collect the rents thereof,
and out of the same pay taxes, assessments and necessary ex-
penses and employ any surplus in the improvement of the
property by erecting buildings or otherwise. But in case
the rents and income from aU the property shall not be suffi-
cient to defray such charges and expenses, or other things
required to preserve the ownership, they may, as a last resort^
dispose of enough of said real estate to pay the same.
"XXXI In respect to that part of the Cliff House ranch,
herein mentioned, I direct that it shall be sold only as a whole,
and that before it can be disposed of to any other purchaser
or purchasers, it shall be first offered for sale to the city and
County of San Francisco at a price which shall be twenty
(20) per cent less than the highest bona fide bid therefor by
any other party, such bona fide bid to be ascertained, by in-
viting bids therefore by public advertisement for six months ;
but such sale to the City and County of San Francisco shall
be made on the express condition, that it shall be kept
perpetually as a place of public resort, and should said
Estate of Sutro. 125
city and county elect to purchase said property, on said
terms and conditions, said board of trustees and their suc-
cessors are authorized and directed to make such sale.
"XXXII I hereby expressly declare it is my intention
that the parcels of land herein referred to as part of the San
Miguel Rancho and part of the Cliff House Ranch and num-
bered I and II, shall on the death of the last survivor of my
said children vest in said board of trustees and their suc-
cessors, in trust, that the same may be sold and the proceeds
therefrom be applied to the uses and purposes, charitable,
educational and other, which are, in this my will, provided
and specified."
In October, 1898, and before the instrument dated May 22,
1882, had been admitted to probate, as the last will of Adolph
Sutro, deceased, an action was begun in the superior court
of the city and county of San Francisco, by Clara A. Sutro,
Edgar E. Sutro, Kate Nusbaum, and Rosa V. Morbio, plain-
tiffs, against Emma L. Merritt and W. R. H. Adamson (the
persons named as executrix and executor respectively under
the will), as trustees under the instrument purporting to be
a will of Adolph Sutro, deceased, dated May 22, 1882, and
Emma L. Merritt, George W. Merritt, her husband, and
Charles W. Sutro, defendants.
The action was in form a suit to quiet title. The complaint
alleged that the plaintiffs were the owners of an undivided
two-thirds of certain real property described in the com-
plaint; that the defendants Merritt and Adamson claimed to
be trustees under an instrument purporting to be the will of
Adolph Sutro, deceased, dated INIay 22, 1882, and that as
such trustees they claimed an interest in the property ad-
verse to the plaintiff's, which claims were without right or
foundation ; that Charles W. Sutro and Emma L. Merritt
claimed an interest adverse to the plaintiffs, which claims
were also Avithout right or foundation, and that none of the
defendants had any interest in said property, either as trus-
tees or otherwise. The plaintiffs prayed that the adverse
claims of the defendants be determined, that all questions
concerning the validity of any gift under the purported will
of Adolph Sutro be finally adjudicated, and that it be ad-
126/ Coffey's Probate Decisions, Vol. 2.
ju/ged that the defendants did not have as trustees or other-
wie, any right, title or interest to said property, and that
ley be enjoined from asserting any such right, title or in-
/erest.
Charles W. Sutro suffered a default to be entered against
him. The defendants Merritt and Adamson as trustees, and
Emma L. Merritt and George W. Merritt, her husband, in-
dividually, filed a joint answer to the complaint, in which
they denied the right of the plaintiffs to the property de-
scribed, admitted that the defendants Merritt and Adamson
asserted to be trustees under the purported will of Adolph
Sutro, and that they claimed an interest in the property as
such trustees, but alleged that their claims were not without
right or foundation, and that they had an interest as such
trustees in the property described.
In an affirmative defense and counterclaim the defendants
averred the ownership of the property by Adolph Sutro, his
death, the due execution of the will in question, and set out
in full those portions of the will which provided for the
charitable trust, alleging:
"Seventh: That in and by the terms and provisions of
said will, and more particularly the paragraphs thereof re-
ferred to and set forth in this answer, all the lands and prem-
ises described in said complaint and in this answer were con-
veyed, transferred and devised to the defendants, Emma L.
Merritt and W. H. R. Adamson, as trustees, to be by them
preserved and managed for and during the period of ten
(10) years after the death of said testator, Adolph Sutro.
and then by said defendants and trustees to be conveyed
in trust to a board of trustees, as provided in said will, for
charitable purposes, and said Emma L. Merritt and W. H.
R. Adamson, as said trustees, are the owners of said prop-
erty, and entitled to the possession of the same, subject only
to the execution of the trust, and neither all nor any of said
plaintiff's have any estate or interest in said property, nor
are they the beneficiaries, nor is any of them the beneficiary,
of said trust. ' '
The defendants then prayed that their rights as trustees
under the will be adjudicated.
Estate of Sutro. 127
Upon a stipulation by the parties that judgment should be
rendered for the plaintiffs, unless a lawful and valid trust
was created by the will, the court rendered judgment for the
plaintiffs, expressly finding that the plaintiffs were the
owners of the property described ; that the trusts attempted
to be created by the will of Adolph Sutro were void, and that
the defendants, as trustees, had no interest therein.
On January 19, 1899, the will of Adolph Sutro, deceased,
was admitted to probate.
On May 22, 1903, a petition for partial distribution was
filed by Kate Nusbaum, and others, asking distribution to
them, as heirs at law, of the property included in the alleged
trust, claiming that as to this property Adolph Sutro had
died intestate. In granting the application for partial dis-
tribution the following opinion was rendered:
The first question to be considered here is as to the validity
and effect of the judgment in Sutro v. Merritt, No. 65,811,
department 10, superior court.
It is claimed by petitioners that the judgment in that case
governs the present application, forasmuch as it determined
that the trusts attempted to be created by the will of Adolph
Sutro were void.
Opponents argue that the judgment is void, and does not
bind this court in this proceeding, for the equity department
had no jurisdiction of the subject matter, as the superior
court, in probate, was and is vested with exclusive power to
determine the rights of heirs, devisees and legatees, and the
legislature did not and could not confer this jurisdiction upon
the court in equity. It is also claimed that there was a
defect of parties necessary to a complete adjudication of the
essential issue. The action was in form a suit to quiet title,
but in reality its purpose was to determine in advance of
probate the validity of certain provisions in an instrument
purporting to be the will of decedent; and the judgment of
the court was, after due hearing and consideration, that the
provisions in question were void because the trust attempted
to be created therein was not intended wholly for charitable
purposes, but was intended for purposes partly charitable
and partly other than charitable; and that the purposes for
128 Coffey's Probate Decisions, Vol. 2.
which it was intended are vague and uncertain, and cannot
be made certain ; and that it cannot be determined what pro-
portion of his estate the said testator intended for charitable
purposes and what proportion he intended for purposes other
than charitable; and that the attempted trust was intended
for purposes not authorized by law and that the testator in-
tended to create a perpetuity in a portion of his estate, con-
trar}^ to the constitution and laws of California, for pur-
poses other than charitable. The parties to that action were
substantially those who are petitioners and respondents here-
in.
The defendants, Merritt and Adamson, as trustees, and
Emma L. Merritt and George W. Merritt, her husband, in-
dividually appeared and answered, putting in issue the main
question of the validity of the testamentary trust clauses,
and prayed that the rights of the trustees be adjudicated.
Their attorneys of record appear to have been E. W. McKin-
stry, and K. H. Lloyd, the former of whom is now deceased,
and the latter is not now connected with the trustees. The
attorneys for the plaintiffs in that case are the same repre-
senting the petitioners in this proceeding. No appeal was
taken from that judgment; and, if the court in equity was
competent to pronounce it, nothing remains for this tribunal
but to acquiesce in its conclusion. The only question, there-
fore, presently to be examined, is the competency of the
court sitting in equity to deliver that judgment. Its power
in the premises seems to me to be dependent upon the amend-
ment of 1895, for, prior to the passage of that amendatory
act, it had been held that, under our present judicial system,
the subject matter was within the exclusive province of the
court sitting in probate. This is the tenor of the main deci-
sions relied upon by the trustees, although it is contended
by petitioners that in none of the cases cited was the question
directly involved, and that the language of the opinions was
mere dicta. The late Justice Temple expressed himself very
strongly in favor of exclusive jurisdiction, although he made
but one allusion to the amendment and that in the Estate of
"Freud, 134 Cal. 333, 66 Pac. 476, where he said it did not
Estate of Sutro, 129
apply. He does not appear elsewhere to have made any
reference to the act.
It is claimed, however, that all doubt is set at rest as to
the application of this amendment to such controversies as
Sutro V. Merritt by a decision of the supreme court which must
here be held conclusive as affirming the proposition that the
act of 1895 authorizes such a suit : Fair v. Anorus, 132 Cal.
581, 64 Pac. 1111. If this be so, this court need not burden
itself with the task of further examination of authorities, for
that one should seem sufficient; but, it is maintained by re-
spondents that the case cited is not authority, as the ques-
tion here under discussion was not even remotely suggested,
much less argued or considered, therein; and, when that
decision Avas rendered, the trust had been declared invalid in
Estate of Fair, 132 Cal. 523, 84 Am. St. Eep. 70, 64 Pac. 1000.
Whether or not the amendment of 1895 was enacted for the
purpose of enabling the Fair heirs to obtain the construction
of the will before probate, it is certain that advantage was
taken of that act to institute an action prior to probate to
determine an adverse claim made by them to certain real
estate ; and that in that action it was contended that by virtue
of the amendment to section 738, Code of Civil Procedure, the
court was authorized to determine the validity of the trust,
irrespective of the probate of the will, or of any proceeding
that might be taken in the administration of the estate. This
contention was sustained by the superior court and an ap-
peal was taken, and the opinions are to be found in 60
Pac. 442. Justice Harrison, who wrote the main prevailing
opinion on that appeal, stated, after alluding to the points
presented, that it was unnecessary to determine the question
because of the decision ifi the Estate of Fair rendered simul-
taneously.
At the same time Justice ^McFarland, in the course of a
dissenting opinion upon the other question, incidentally said
that there w^as a preliminary point as to the right of plaintiff,
as heir, to maintain the action, which point was pressed by
some of the counsel for appellants and waived bj^ others ; but
this right, he declared, was plainly given by section 738 of
Prob. Dec, Vol. II — 9
130 Coffey's Probate Decisions, Vol. 2.
the Code of Civil Procedure, as amended in 1895. Upon the
rehearing of the case, the judgment of the superior court was
affirmed, and Justice Garoutte said that in view of the deci-
sion of affirmance just then delivered in the Estate of Fair,
wherein they had held the will invalid, there was no practical
reason why the appeals in the other case should be consid-
ered in extenso upon the various matters presented by coun-
sel in their briefs, for the first decision being to the effect
that neither the trustees nor the beneficiaries taking any es-
tate by the will, the judgments rendered in these causes and
the orders denying the motions for a new trial should be af-
firmed, and it was so ordered.
It is here claimed by petitioners that in view of the fact,
which, it is said, appears plainly from the opinions on the
former hearing, that the right of the plaintiff to maintain
such an action was argued, the affirmance of the judgment
necessarih^ involved a decision that the action was properly
brought, and that the view of Justice McFarland, in his dis-
senting opinion on the original appellate hearing, that this
right of action was plainly given by the amendment of 1895,
was correct, and that, therefore, this court is bound by it as
authority directly in point, the mere circumstance that no
opinion was written not lessening its weight. As to the effect
of an affirmance without an opinion, attention is directed to
the remarks of Mr. Justice McKenna, speaking for the court,
in Fidelity and Deposit Co. v. United States, 187 U. S. on page
319, 32 Sup. Ct. 120, 47 L. Ed. 197, wherein the principle
is announced that where a decision of the court of last resort
affirming a decision of an inferior court sustaining the validity
of a rule is rendered Mdthout an opinion, it is not a proper in-
ference that the supreme court consirfiered the rule of doubt-
ful validity, but rather that it regarded the grounds of chal-
lenge as without foundation. If this be the rule of decision, it
would seem to dispose of the contention of respondents that
Fair v. Angus, 132 Cal. 581, 64 Pac. 1111, is not an author-
ity, and to enforce the conclusion that the superior court in
Sutro V. Merritt had jurisdiction of the subject-matter; and
to render unnecessarj^ any further discussion as to the power
of the legislature to enact the amendment. As to this last
Estate of Sutro. 131
point, however, that the legislature was not authorized by
the present constitution to permit heirs and devisees to litigate
their respective titles to the lands of a decedent under whom
they severally claim, and that it cannot curtail the exclusive
jurisdiction of the superior court, as constitutionally con-
ferred, "of all matters of probate," including the interpre-
tation of a will so as to affect or determine the rights of dis-
tributees among themselves, reference may be made to the
opinion of Justice Garoutte in Estate of Davis, 136 Cal., on
page 597, 69 Pac. 412, in which he says that the probate juris-
diction of the superior court is essentially under the control
of the legislature, which may enlarge it or may restrict it;
and that the character and extent of the jurisdiction are not
only under legislative control alone, but the procedure by
which that jurisdiction may be invoked and rights thereunder
adjudicated is expressly laid down by statute ; and that proce-
dure must be followed or relief cannot be secured. Justice
Harrison and Van Dyke concurred in these views, and the
former subsequently wrote the opinion in Martinovich v. Mar-
sicano, 137 Cal. 354, 70 Pac. 459, in which Justice Garoutte
and all the other justices joined, wherein the phrase "mat-
ters of probate" was defined, the court remarking that by
the constitution of this state the superior court is vested with
jurisdiction "of all matters of probate," but its exercise of
that jurisdiction is regulated by statute. If we are to com-
pare this language with that quoted from Justice Garoutte in
the Estate of Davis, the meaning of both would seem to be
that the legislature has the power to add to or take from, "to
enlarge or restrict," "to regulate," in this sense, the juris-
diction. As has been pointed out, in argument, and in the
judicial remarks quoted, the nature of the proceedings in
which this jurisdiction shall be exercised, is entirely a matter
of legislative regulation. Several instances have been cited
in which the legislature has added to powers in probate mat-
ters formerly cognizable only in equity. No question has
been raised as to the validity of these legislative acts. After
a careful consideration of the arguments of counsel, this court
is of opinion that the amendment of 1895 to section 738. Code
of Civil Procedure, was designed to determine the validity of
132 Coffey's Probate Decisions, Vol. 2.
devises contained in a will in advance of its probate and that
the superior court in equity had jurisdiction of the subject
matter in Sutro v. Merritt; but it is said that the judgment
in that action is not controlling because of the lack of neces-
sary parties. This point is discussed at length in the briefs
of counsel, but it would be impracticable to do more in this
place than to state conclusions. This court is of opinion that,
in the circumstances of this case, the primar.y trustees suffi-
ciently represented the beneficiaries, and that neither the at-
torney general nor the ultimate trustees in being, and who
were named in the will, were necessary parties. The language
of the Avill in paragraph 25 would seem to convey, in so many
words, the title in fee to these trustees, and its effect is not
impaired by the words of paragraph 32, besides the devise,
if it shall be so considered, is not to the ultimate trustees as
individuals, but as a board. The testator declared his inten-
tion that the property shall vest in "said board of trustees."
Until the organization of the board, there would be no one
in being in whom the property could vest. This seems to the
court to be the meaning of the will, and, therefore, the in-
dividuals alluded to w^ere not essential parties to the contro-
versy in equity. This appears to have been the theory of all
parties and their counsel at the time of the litigation in Sutro
V. Merritt. This court does not feel justified in declaring void
the judgment in that action on any of the grounds assigned,
and it does not deem necessary further discussion, as it is im-
portant that the decision should be delivered without undue
delay.
If the foregoing views be correct, the matter has been ad-
judicated, and there should be no occasion for this court to
inquire into the validity of the trust clauses in the will; but
the other questions have been discussed with such learning and
thoroughness that it w^ould not be courteous to counsel to dis-
miss them without adverting to the points presented. The
arguments comprise several hundred pages, and exhibit great
research and ability, and the court has given to them serious
study, but it is not desirable to write an opinion covering all
the ground traversed by counsel.
Estate of Sutro. â– 133
The will undertakes to create a trust for charitable uses by
setting apart a large tract of land not to be sold or disposed
of until such time after the death of the last survivor of tes-
tator's six children, as may be deemed by a board of trustees,
not now in existence, to be for the best interests of the trust ;
the income to be accumulated and the land held until the
termination of the trust, at which time the property shall be
sold and the proceeds applied to ''the uses and purposes, char-
itable, educational, and other," provided and specified in the
will, "such charities, institutions of learning and science, and
for premiums to be set apart for distinguished scholarships,
scientific discoveries, and inventions" as shall be directed by
his executors, within three years after his death. This devise
is defended on the ground that the proceeds of the sale of
property are to be applied to charitable purposes, and there-
fore it may be sustained. The position of the petitioners,
primarily, is that the devise is contrary to public policy as
declared by the constitution, which provides against the hold-
ing of large tracts of land, uncultivated and unimproved, by
individuals or corporations as against the public interest and
to be discouraged by all means not inconsistent with the rights
of private property.
So far as private property is concerned, the rule against per-
petuities prevails. The principle stated in the constitution is
substantially the English rule against restraints upon aliena-
tion of lands, even for charitable purposes. The rule and its
history need not be rehearsed here. The reason of the rule
was of universal application. It is contended, however, that
in this state the only limitation upon a testator's right to give
to charitable purposes is that contained in the Civil Code,
which permits a devise of not more than one-third of his es-
tate, and that it is settled in California that perpetuities may
be created for charity and the lands rendered inalienable, and
that, in any event, the court could and would direct a sale of
the property before the death of the surviving child, if the
public interest required it ; and that the bequest, being in-
tended for charity, should not be declared void, if it can pos-
sibly be made good.
134 Coffey's Probate Decisions, Vol. 2.
As to that part of the will which provides for accumulation,
it is claimed by the trustees that if the provision violate the
statutory rule, the only result is that the income should be
devoted at once to charitable uses, and that an unconditional
gift to charity is not affected by a direction for accumulation
which is too remote, for the income becomes immediately dis-
tributable in charity and the only effect of an unlawful direc-
tion is that the fund becomes available for the charity, the
donee for charitable uses thus becoming the legatee of the in-
come. It would seem, however, that in the case at bar this
provision cannot be maintained, as it is repugnant to the stat-
ute which declares that all directions for the accumulation of
the income of property, except such as are allowed by title
two of the Civil Code, are void, and this clause does not appear
to be an exception. So far as the research of this court has
extended, this provision is not supported by statute or au-
thority.
It is said that, in any event, there is nothing in the code
forbidding accumulations for charitable purposes, and that the
sections quoted are inapplicable to charities, and that the
court may grant relief, if the period of accumulations is un-
duly extended by the terms of the trust, but otherwise should
not interfere, when the will exhibits a general charitable in-
tent which will be effected as far as is consistent with the
rules of law, if the mode prescribed be unlawful, and here the
dominant purpose of the testator being charitable, it should
be upheld. Even though a general charitable intent is evi-
dent in the will, the court is bound by the terms of the instru-
ment. The supreme court has said that it is not what the
testator meant, but what his words mean, for his intention is
to be ascertained by his expression and not by conjectures as
to what may have existed in his mind. We must take the
will as we find it and construe all its words according to their
common import. The testator may have had a general chari-
table design, but it is not shown by the language chosen to
execute his purpose, certainly not by paragraph 29, which ex-
cludes from the scope of its operation enumerated classes
whose work is mainly that of beneficence and charity. Plainly,
he did not favor any charity conducted by any such classes or
Estate of Sutro. 135
persons, when he closed his bounty to those under whose aus-
pices practically all the charities in the country are managed.
If we are to interpret his intention, according to the rules of
law, giving effect to every word, it is difficult to deduce a gen-
eral charitable intent bj^ which the attempted trust can be
sustained. The general intention must be carried out by apt
and appropriate words, and the court is restricted in its con-
struction to what is found in the will.
Numerous attempts have been made to define a charity, in
the legal sense, without satisfactory result. Quite a collection
of definitions is to be found in the brief by trustees, in one of
which, by Mr. Binney, charity is defined to be whatever is
given for the love of God or the love of one's neighbor, in the
catholic and universal sense, given from these motives and to
these ends, free from the stain or taint of every consideration
that is personal, private, or selfish. The trustees claim that,
measured even by this severe test, the bequest here should
stand. It is submitted, however, that subjected to the sever-
ity of this test the bequest must fail, for the testator denied
his benefaction, "expressly prohibited," to any institution or
charity or purpose which is in any degree sectarian or in the
management of which any priest, clergyman, minister, or
rabbi, or other religious ofScer shall have any voice or control,
and said board of trustees are in like manner prohibited from
making any such application. It has been said by an English
judge that it is probably impossible to define what is a chari-
table bequest, and it may not be advisable to attempt to do
so ; but, in one sense, at least, charity is not illustrated in the
proscriptive sentiment of the clause quoted nor does it seem,
as trustees claim, to correspond to the calls of Binney 's defini-
tion, nor does it answer the primitive signification of the
term, which is, according to Webster, "love; universal benevo-
lence; goodwill." It is described by the apostle, as the great-
est of virtues, and the speech of Lincoln at Gettysburg pro-
claimed "malice toward none and charity for all." But here
we have a bequest the spirit of which is repugnant to the prin-
ciples of charity as commonly understood. How can it be said
to express a general charitable intent, when it preclud&s the
possibility of its application to any institution, charity, or
136 Coffey's Probate Decisions, Vol. 2.
purpose in which any minister or professor of religion has any
concern? It is not a question of any particular denomina-
tion ; it is a question of almost universal exclusion of those by
whom substantially all charities are administered. None of
these can be aided without directly violating the intention of
the testator. There is no intention here to impugn the motive
of the testator; his philanthropic purpose cannot be assailed;
his aim to create a trust which might benefit his fellowman
may be admitted, but he is not the first testator to have missed
his mark through mistake in the choice of the- means by which
success might be secured.
What was his purpose in creating this trust ? Its character
must be determined by its terms. No matter how good his
motive, it should be distinctly and definitely described ; but in
this case the description of the beneficiaries includes indefinite
classes which may or may not be charitable, and an authority
relied upon by respondents decides that where a bequest is
made for charitable purposes and also for purposes of an in-
definite character, which are not charitable, the whole bequest
will be void.
If, for instance, a bequest is made for such charitable, or
other purposes, as the trustee should think fit, the whole be-
quest will be void : Estate of Hinckley, 58 Cal. 509.
It is plain that there are objects in the will noncharitable as
well as charitable, and the court is not at liberty to discrimin-
ate. It cannot imagine an intent that the testator has not
expressed. The testator refers to his purposes as "charitable
and other." In one paragraph he describes disjunctively his
devisees as ' ' any institution or charity or purpose. ' '
It would seem, according to the authorities, that the words
"or other" are of the very substance of the scheme which the
testator saw fit to adopt for the purpose of carrying out and
giving effect to his philanthropic design. The court is unable
to adopt a construction which involves a rejection of these
words altogether unless such construction is necessitated by
clear and unmistakable evidences of the testator's intention,
found in the other provisions of the will. In the construction
of wills, every word is to have its effect, provided an effect
can be given to it not inconsistent with the general intent of
Estate of Sutro. 137
the whole will, taken together ; for a testator is not to be sup-
posed to have used words without meanino;, if it is possible to
give them a consistent meaning and the rule is not to reject
any words unlass there cannot be any rational construction of
those words as they stand : Taylor v. Keep, 2 111. App. 368.
The becpiest itself is not made definitely and exclusively to
charity, but it may be devoted to purposes noneharitable.
Respondents insist that the ' ' other ' ' purposes are also chari-
table, and that testator meant by his inclusion of the word
"charities" to call attention to those "charities" which he
particularly favored, or he used the word in the more re-
stricted and common sense of relief or alms to the poor; but
this subtle distinction cannot be accepted by the court in the
face of the express terms of the will. The bequest must stand
or fall, as the testator has seen fit to make it.
No matter how meritorious may have been his motive, the
testator has failed to express his purpose so that it might be
capable of legal enforcement. The reasoning of respondents,
plausible and ingenious as it is, has not convinced the court
that the scheme of the will is either practicable or legal, and
while the court has desired to treat the various heads of the
subject in a manner that might convince counsel that their
work has been studied and appreciated, it is not expedient to
extend this opinion to greater length.
Application granted.
An Appeal in the matter of the Estate of Sutro was dismissed in
152 Cal. 249, 92 Pac. 486, 1027.
138 Coffey's Probate Decisions, Vol. 2.
In the Matter of the Estate of JOSEPH GORDON, De-
ceased.
[No. 18,338; decided August 18, 1904.]
Inheritance Tax — Statute of Limitations. — The defense of the stat-
ute of limitations is applicable to a proceeding against executors for
the collection of collateral inheritance tax. Such a proceeding is
barred under the provisions of section 338, Code of Civil Procedure,
by the lapse of three years after the accrual of the liability; and
the liability is complete at or before the close of the administration.
Inheritance Tax — Limitations. — If the Executor Occupies the Posi-
tion of a Trustee for the state as to the collateral inheritance tax,
this relation does not continue in the manner to prevent the running
of the statute of limitations after proceedings have been had to fix
the tax, and the amount thereof fixed and ordered paid, and the
residue of the estate distributed and the administration closed.
Inheritance Tax — Former Adjudication. — The establishment by a
court of the collateral inheritance tax payable by an estate is an ad-
judication upon that subject which binds the state as well as the
estate, as to all questions passed upon.
Joseph Gordon died February 11, 1897, or twenty-six days
before the enactment of March 9, 1897, amending the col-
lateral inheritance tax statute, went into effect. He left a
will disposing of all his estate, and giving it all to his niece,
excepting only $14,500 in pecuniary legacies to other col-
lateral relatives and $1,400 in several small legacies to chari-
ties. The administration of his estate was commenced by the
filing of his will on the nineteenth day of February, 1897,
and in the course of the administration the county treasurer,
in discharge of what he deemed to be his duty under the
collateral inheritance tax act, made application to the court
for an order upon all the legatees and devisees under the
will to show cause why they should not be required to pay
the tax provided by the act. This application was made by
petition filed on May 24, 1898, whereupon a citation Was
issued to and served upon all the persons interested in the
estate, and on June 4, 1898, returned and filed herein ; and
thereafter, on June 9, 1898, the court made its order assess-
ing and fixing the collateral inheritance tax payable out of
the estate and directing its payment.
Estate of Gordon. 139
At the time these proceedings were had, it was contended
on behalf of the residuary legatee and devisee under the will
that all the provisions of the enactment of 1897 were con-
stitutional and effective, and that section 2 of that enact-
ment making its exemptions applicable to all property which
had already passed, except where the tax had already been
paid, had the effect of exempting that portion of the estate
wiiich went to the testator's niece. This view (probably ac-
ceded to by the treasurer at that time) was adopted by the
court, and by its order of June 9, 1898, therefore, it directed
payment of collateral inheritance tax on the pecuniary legacies
aforesaid amounting to $14,500 and assessed and fixed the
tax payable thereon at $725 ; and with reference to the residue
of the estate, the language of the order is as follows: "And
all the rest, residue and remainder of said estate is, and the
legacies and legatees mentioned in said will other than those
above named are, exempt from said collateral inheritance
tax."
Upon these proceedings being had, the executors, in obedi-
ence to the court's order, made June 9, 1898, the payments
therein directed, and afterward, to wit, on August 13, 1898,
presented and filed herein their final account showing such
payment to have been made, together with their petition for
the final distribution of the residue of the estate to the per-
sons entitled. Upon due notice given of the settlement of
this final account and of the hearing of this petition of final
distribution, the court made, on August 26, 1898, its decree
of final settlement and distribution, finding that all taxes,
debts, expenses and charges of administration had been paid,
and directing the payment by the executors of the residue
of the estate to the legatees and devisees in the manner and
proportions in the decree specified. In compliance with this
decree, the executors, as shown by their vouchers, thereafter
filed, paid over and delivered all the property and estate
remaining in their hands, and on December 15, 1898, filed
herein their vouchers showing such to be the fact to the
satisfaction of the court; whereupon the court made, on the
last-named day, its decree of final discharge of the executors,
adjudging and declaring the estate to have been fully ad-
ministered and the trust settled and closed, and since that
140 Coffey's Probate Decisions, Vol. 2.
time no portion of the propert.y of the estate has been in
the possession or under the control of either of the executors,
and neither of them has had any interest therein.
Thereafter the supreme court, in the case of Estate of
Stanford, 126 Cal. 112, decided that the provisions of section
2 of the enactment of 1897 are unconstitutional so far as
they apply to any estate which had passed prior to the en-
actment, because they were tantamount in effect to a gift of
public property rights already accrued, thus establishing, as
a matter of law, that this court had erred when it made
the order it did herein declaring that the estate bequeathed
to the niece was exempt from the tax. No appeal, however,
has ever been taken from any of the orders made herein, and
the time for appeal from them has long since expired; and
no motion has ever been made for relief from the effect of
any of the orders or decrees herein because of any inad-
vertence, surprise or mistake or excusable neglect.
Arthur G. Fisk and Clay P. Gooding, for the city and
count}^ treasurer.
Edward C. Harrison and James C. Adams, for the ex-
ecutors.
COFFEY, J. 1. The first contention made on behalf of the
treasurer in support of his application now before the court
is that the statute of limitations does not bind the state with
regard to the collection of the collateral inheritance tax; and
in support of this he cites several authorities, all of which
have been carefully examined and considered by the court.
The language of the statute upon which reliance is placed
to obviate or avoid this defense is as follows: "All admin-
istrators, executors and trustees shall be liable for any and
all such taxes until the same shall have been paid as herein-
after directed. ' '
The Political Code (section 3716) contains the following
language: "Every tax has the effect of a judgment against
the person, and every lien created by this title has the force
and effect of an execution duly levied against all property
of the delinquent; the judgment is not satisfied nor the lien
Estate of Gordon. 141
removed until the taxes are paid or the property sold for
the payment thereof."
The language of the provision last above quoted is at least
as strong as that above quoted from the statute under con-
sideration ; yet it has been di.stinctly held that it has not the
effect of suspending the operation of the statute of limita-
tions : San Francisco v. Jones. 20 Fed. 188 ; San Diego v.
Higgins, 115 Cal. 170, 46 Pac. 923.
And it is expressly provided in the statute of limitations
itself (Code of Civil Procedure, section 345), that the limita-
tions prescribed in that chapter apply to actions brought in
the name of the state or for the benefit of the state in the
same manner as to actions by private parties.
As against these authorities, those cited on behalf of the
application do not seem to me to have prevailing effect. The
Pennsylvania decisions are based upon the maxim "Nullum
tempus occurrit regi," which is held to apply with strictness,
except in those eases where the state has chosen to bind itself
by the statute of limitations; and this maxim is expressly
enacted out of our law by the provision of Code of Civil
Procedure, section 345, already mentioned.
Vanderbilt's Estate, 10 N. Y. Supp. 239, cited by counsel
for the treasurer, holds that the collateral inheritance- tax
is a tax upon the devolution of property and not a penalty
or forfeiture, and, therefore, that the provisions of section
384 of the New York Code of Civil Procedure, providing
that an action upon a statute for a penalty or a forfeiture
is barred by the lapse of two years, does not apply; thereby
holding and deciding (impliedly, at least) that the provisions
of section 282 of the same code, which provides that the lapse
of six years will bar an action upon a liability created by
statute other than a penalty or forfeiture, does apply.
Euss V. Crichtou, 117 Cal. 695, 49 Pac. 1043, relates to
the issuance of a tax deed to the state, and to the limitation
provided by section 3788, Political Code, as amended in 1895
before the statute had been amended so as to provide for
the sale to the state of property for delinquent taxes, and
is certainly not as nearly in point upon the question of limita-
tion in a case of this kind as are the authorities hereinbefore
mentioned. The doctrine of San Diego v. Higgins, supra, is
142 Coffey's Probate Decisions, Vol. 2.
in no manner limited or modified there ; and the case is not
even referred to. The broad distinction between the two
cases, so far as this particular point is concerned, lies in
the fact that section 3788, Political Code, is not a part of
the same chapter with section 345, Code of Civil Procedure.
This same section 345, Code of Civil Procedure, interferes
also with the application of the case of Strongton v. Baker,
4 Mass. 526.
2. Counsel for the treasurer contends further that the
executors occupy the position of trustees for the state with
reference to this tax, and that as such trustees they are not
entitled to the benefit of the statute of limitations. The most
that can be said for this proposition, however, is, that it
might possibly suspend the beginning of the running of the
statute until the executors settled their final account and
closed their trust as such, by applying for, and obtaining,
their final discharge.
If the executors are trustees at all in this connection, they
are trustees of an implied trust only, and in such case the
statute will run: Speidel v. Henrici, 120 U. S. 377, 7 Sup.
Ct. 610, 30 L. Ed. 718 ; Raymond v. Simonson, 4 Blackf . 77 ;
27 Am. & Eng. Enc3^ of Law, 1st ed., 102, and cases cited.
But even if the executors should be considered as trustees
of an express trust, that trust was closed when their authority
as executors ceased upon their final discharge after com-
pliance with the decree of final distribution, and if the state
ever had a cause of action against them, it had a complete
cause of action at that time, and if it has not now become
barred it never will : 13 Am. & Eng. Ency. of Law, 1st ed.,
p. 688, and cases cited ; Clarke v. Johnston, 85 U. S. 493,
21 L. Ed. 904; Coleman v. Davis, 2 Strob. Eq. 334.
In Clarke v. Johnston, supra, Mr. Justice Miller said:
"It may be conceded that, so long as a trustee continues to
exercise his powers as trustee in regard to property, that he
can be called to an account in regard to that trust. But
when he has parted with all control over the property, and
has closed up his relation to the trust, and no longer claims
or exercises any authority under the trust, the principles
which lie at the foundation of all statutes of limitation assert
Estate op Gordon. 143
themselves in his favor, and time begins to cover his past
transactions with her mantle of repose."
The fact that before the executors in this case applied for
final distribution of the estate, proceedings had been had to
ascertain and fix the tax, and ascertain and prescribe the
duties of their trust in that regard, and that tax and those
duties as so ascertained and fixed had been paid and dis-
charged by them, makes their position upon the statute of
limitations even stronger.
As against the proposition that these executors are trustees
only of an implied trust, if trustees at all as to this matter,
counsel for the treasurer cite specially in their reply brief
the case of Luco v. De Toro, 91 Cal. 405, 27 Pac. 1082 ; but
in that case the express trust mentioned and considered by
the court was one created by a contract entered into between
Hartman and the decedent Olvera in his lifetime, and it was
with reference to that trust that the court there laid down
the rule which requires some open disavowal of the trust
relations created by the contract, and notice of such dis-
avowal, in order to set the statute running.
And whatever may be said of the trust character of the
relation between the administrator or executor and the state
with reference to the collateral inheritance tax, it would seem
that it can only apply after all to such sum as shall have
been ascertained and fixed by the court in the manner pro-
vided by the statute as properly belonging to the state and
payable by the administrator or executor as collateral in-
heritance tax. And that sum, so ascertained and fixed, has
been paid.
3. Counsel for the executors have contended also that the
order of this court made June 9, 1898, amounted to a former
adjudication, which is a bar to this application by the
treasurer; and this contention seems to be well grounded
in the authorities cited.
In Pennsylvania the statute provides (Act of May 6, 1887,
section 20) that "the lien of the collateral inheritance tax
shall continue until the said tax is settled and satisfied."
And under that statute was rendered the decision of the
supreme court of that state in Money penny's Estate, 181 Pa.
309, 37 Atl. 589, in which the court said :
144 Coffey's Probate Decisions, Vol. 2.
"The error, if there was one, was due to the appraiser's
erroneous judgment, deliberately reached upon knowledge
of all the facts. The commonwealth seeks, and the court has
sustained, a second appraisement to revise the judgment of
the appraiser. Clearly this cannot be done. The plain stat-
utory remedy for such a case is not a second appraisement,
but an appeal from the first."
In New York, the original statute (Statute of 1885, chapter
483) contains language identical to that of our statute here-
inbefore quoted. Subsequently it was amended (Laws of
1892, chapter 399, section 3) so that it now provides that
"Every such tax shall be and remain a lien upon the prop-
erty transferred until paid to the person to whom the prop-
erty is so transferred, and the administrators, executors and
trustees of every estate so transferred shall be personally
liable for such tax until its payment. ' '
The decisions of the New York court cited by executor's
counsel are the following: In re Nevin, 20 Misc. Rep. 550,
61 N. Y. Supp. 956; Rice's Estate, 29 Misc. Rep. 404, 61 N.
Y. Supp. 911; Crerar's Estate, 67 N. Y. Supp. 795, 56 App.
Div. 479; Wallace's Estate, 28 Misc. Rep. 603, 59 N. Y. Supp.
1084; Bruce 's Estate, 59 N. Y. Supp. 1083; and Schermer-
horn's Estate, 57 N. Y. 26, 38 App. Div. 350.
Most of these decisions, and perhaps all of them, were
rendered before the amendment of 1892, but whether before
or after is immaterial for the present purpose, for, as already
stated, the original act of 1885 is identical with the provision
of our statute, and the amendment of 1892 is couched in even
stronger language.
In re Nevin was a case where the question arose very much
in a similar manner as here. A bequest to Mr. Chauncey M.
Depew of $20,000 was reported by the appraiser as not sub-
ject to tax, because he was an executor, and the will provided
that in view of the bequest he should charge no commission,
and because it had been held by the supreme court in the
case of Gould that such legacy was not subject to tax. Later
the court of appeals reversed the supreme court in the Gould
case (156 N. Y. 423, 51 N. E. 287), and in the light of the
law as there laid down it was sought to get a second appraisal
and collect the tax on Mr. Depew 's legacy; and this, it was
Estate of Gordon. 145
held, could not be done, and the decision in Moneypenny's
Estate (supra), cited with approval.
In Rice's Estate, supra, the court said: "The appraisement
proceeding furnishes an opportunity to the parties interested
in the estate, on the one hand, and the state, on the other,
to inquire fully as to the value of the property at the time
of the decedent's death, and to obtain and present such testi-
mony as may aid in the ascertainment of such value. Upon
the proofs thus taken the appraiser makes his report, and the
surrogate enters an order assessing and fixing the tax. This
order is an adjudication in respect to the liabilities thereby
fixed, and unless an appeal is taken therefrom is conclusive
on all parties thereto."
And in the opinion in Crerar's Estate appears the follow-
ing: "It seems clear that this property was brought to the
attention of the appraiser, and that he held that it was not
subject to the tax. The surrogate had no jurisdiction to
cause it to be reassessed because it was erroneously held ex-
empt, nor to have it reconsidered or again passed upon in
any form."
These authorities are criticised by counsel for the treasurer,
but are the only authorities furnished upon the point, and
seem to sustain the contention.
In the opinion of the court, the application is barred by
the provisions of section 338 of the Code of Civil Procedure,
and also by the former adjudication of this court upon the
matter; and the citation, therefore, will be discharged, and
an order entered to that effect.
Prob. Dec, Vol. II — 10
146 Coffey's Probate Decisions, Vol. 2.
Estate op LUCY G. GOODSPEED, Deceased.
[No. 17,053; decided August 14, 1904.]
Will Contest. — The Riile that a Complaint must State the Cause
of action in ordinary and concise language applies to the written
grounds of opposition to the probate of a will. The facts should be
stated concisely and with certainty, apart from all hypotheses, argu-
ments and conclusions of law; and when once made the statement
should not be repeated.
Will Contest — Misjoinder of Causes of Action. — Charges of fraud
and duress constitute different causes of action, and should be stated
separately.
Will Contest — Charging Conspiracy. — Where one is charged in a
pleading with conspiracy with other persons, he has a right to have
the names of the alleged conspirators made known to him.
Delmas & Shortridge, for proponents and respondents,
Daniel Sullivan and Frank N. Myers, executors.
P. C. Lusk, Reddy, Campbell & Metson, Knight & Heg-
gerty, for Annie Amelia Stanford, Orville C. Pratt Good-
speed, and Jennie Maud Snodgrass, contestants.
Garret W. McEnerney, for Goodspeed minors.
COFFEY, J. Unusual labor has been imposed upon the
court, in this preliminary phase of a will contest, by reason
of the multifarious and multiform grounds of the motion and
demurrer. There are over sixty specific objections to the con-
test included in the motion, and as many more grounds of
demurrer, most of them different from those covered by the
motion, forty typewritten pages in all, and all of them re-
quiring a most careful examination of a complaint of four-
teen typewritten pages in length.
As to many of the points, it is not unlikely that if they
stood alone or were isolable upon this motion the court would
disregard them as too tenuous and technical, but it must be
said in justice to the pleader that the form employed in this
contest is not without precedent, and I find upon scrutiny of
the records in this class of cases many complaints similar in
form, so it cannot be said, in face of the facts, that "the com-
plaint in this case, as a pleading, has no precedent" (Green
Estate of Goodspeed. 147
V. Palmer. 15 Cal. 414, 76 Am. Dec. 492), although it may be
remarked that the time has come when, under the ob.jections
and demurrer presented, the principles of pleading applicable
to ordinary civil actions should be applied to contests in
probate, according to the intention of the code : Code Civ.
Proc, sec. 1312.
There is no valid reason why the rule of the statute that
the complaint must contain a statement of the facts constitut-
ing the cause of action in ordinary and consise language
should not be applied strictly to the written grounds of op-
position to the probate of a will: Code Civ. Proc, sec. 426.
Applying this rule to the complaint of contest here, it is
obnoxious to demurrer on three grounds, indicated in sub-
divisions 5, 6, and 7, section 430, Code of Civil Procedure, as
specially pointed out in the demurrer here interposed. But
the motion must be dealt with in its order of priority in pro-
cedure.
THE MOTION TO STRIKE OUT PARTS OP CONTEST.
The motion to strike out the contest as a w^hole should be
denied, saving the right to the respondents to have an
amended contest filed, stating clearly and concisely the
grounds of opposition to the probate of the proposed w'ill.
With respect to the particular parts of the motion granted,
it may be well to premise the principles of pleading appro-
priated and adapted from Green v. Palmer, 15 Cal. 411-417,
76 Am. Dec. 492, and applied to the merits of this motion.
Facts only should be stated; facts, as contradistinguished
from the law, from argument, from hypotheses, and from the
evidence of the facts. A legal inference or conclusion from
the facts should not be stated; that is not the province of the
pleadings under our system, which is to develop the facts.
Argument in pleading is equally inappropriate. Hypothet-
ical statements are improper. The respondent's pretenses
are equally improper. Each party must allege each fact
which he is required to prove, and he must allege nothing
affirmatively which he is not required to prove. Nothing
should be stated which is not essential to the claim or de-
fense; or, in other words, none but issuable facts should be
148 Coffey's Probate Decisions, Vol. 2.
stated. If this part of the rule be violated, the adverse party-
may move to strike out unessential facts. All statements
should be concisely made, and when once made must not be
repeated. The code does not permit long pleadings; on the
contrary, it enjoins conciseness everywhere, and if in any
pleading written under its rule there be an unnecessary word,
it is there in disregard of code provisions. If an immaterial
statement be inserted, or even an unnecessary word, the court
has the power to strike it out. To avoid repetition, as well
as to obtain conciseness, logical order is necessary. There
should be no difficulty in setting forth any occurrence in its
logical, which is its natural order, and if this be done and the
pleader set forth only the facts upon which his case depends,
using no more words than are necessary, we shall have brevity
and substance, and we shall hear no more of long pleadings,
unnecessary recitals, or immaterial averments.
Although nearly forty years have elapsed since these rules
were reaffirmed by Mr. Justice Field in Green v. Palmer, the
necessity still remains of repeating them from time to time,
as is shown by numerous cases in the California Reports dur-
ing the intervening period.
These rules establish the principles of pleading in probate
as in all other courts, and they but illustrate the maxim of
Coke that ' ' the law speaketh through good pleading, "or, ' ' the
order of pleading being preserved, the law is preserved, ' ' for
it is "the living voice of the law itself."
Applying these rules to the contest here, the proponents
contend that their motion to strike out the argumentative,
hypothetical, and repetitive allegations, as well as the con-
clusions of law, and the evidentiary matters therein averred,
should be granted.
The contest is addressed to a certain instrument propounded
for probate, and, therefore, the motion to strike out such
phrases as ''pretended will" is proper, for, as the rule laid
down in Green v. Palmer says, if there be an unnecessary
word, it is in disregard of code provisions and should be
ousted. It is apparent that mention of the instrument in
contest identifies it, for the purpose of pleading, and that
the words "or pretended will" are redundant; that the word
"pretended" is argumentative, and one which the contestants
Estate of Goodspeed. 149
need not deny, but that the very form of the allegation would
make a denial so involved as to conceal the real issue.
Contrary to the rule that a statement once made must not
be repeated, there are several repetitions throughout the con-
test.
In the opinion of this court, the subject matter of the sixth
ground of objection is especially worthy of censorious at-
tention; the tender of issue concerning the condition of the
decedent at the time of her death. This is clearly not per-
tinent, necessary, relevant, nor material to the issues, and not
involved in a proceeding of this nature.
In the same paragraph of the contest (paragraph V) there
is much more obnoxious matter, involving argument and evi-
dence, and clearly repugnant to the rules recited.
Paragraph VI of the contest is vicious to a degree. In
other paragraplis are alleged, in so many words, fraud,
duress, menace and undue influence. These are but con-
clusions of law, and tender no issuable fact, in the manner
stated.
This is common law and common learning, as was said in
Spring A'alley Waterworks v. San Francisco, 82 Cal. 321, 16
Am. St. Rep. 116, 22 Pac. 910. It is not sufficient to aver
fraud in general terms ; the facts constituting the fraud must
be alleged. This has been held from the beginning in Cali-
fornia.
I know of no better statement of the rule for pleading
these matters than that laid down by i\Ir. Justice Myrick in
the Estate of Gharky, 57 Cal. 279 : " In stating the grounds
of contest, if unsoundness of mind is relied on, it is sufficient
to state that the deceased, at the time of the alleged execution
of the proposed paper, was not of sound and disposing mind ;
unsoundness is the ultimate fact to be found, and acts of
inebriety or other causes are to go to the jurj^, from which
they are to find; and the issue upon that subject is to be of
the ultimate fact only; but when the grounds of contest em-
brace duress, menace, fraud, undue influence, due execution
and attestation, subsequent will or the like, such matters, not
being ultimate facts, but conclusions of law to be drawn from
facts, must be pleaded, not in the language of the statute,
but the facts (not evidence of the facts) relied on must be
150 Coffey's Probate Decisions, Vol. 2.
stated, and issues relating thereto submitted to the jury, to
the end that the court, either upon demurrer to the state-
ment of the grounds of contest or upon the verdict, may de-
termine whether, as matter of law, such facts so pleaded or
found constitute a valid reason why the proposed paper
should not be admitted to probate. This course is plain,
logical, direct, and is a certain guide to the court, to counsel,
and to the jurj^; the other course leads to uncertainty as to
what is relied upon, and to doubt as to what may be the basis
of the verdict."
I conceive that this pleading is faulty in nearly all the
respects indicated in the formal objections, especially because
of its argumentative and evidentiary shape, and the objec-
tions numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15,
16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32,
33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48,
49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, should
be and are sustained.
These w^ords and matters tender no issue, and serve only to
detract from that logical directness and simplicity of state-
ment which ought always to be observed in a pleading.
They have no place in a pleading, and should be struck out
on motion : Miles v. McDermott, 31 Cal. 273.
The objections specified and enumerated are sustained and
the motion as to them granted, and as to the rest denied.
The result of this decision upon the motion is shown by
the paper hereunto appended, the contest as it appears with
the objectionable matters removed.
THE DEMURRER.
The demurrer should be sustained because, as it stands, it
becomes necessary to modify the pleading and bring it
within the rules already adverted to, so that the respondents
may answer direct allegations, to the end that the issues in-
volved may be clearly presented to the court upon the trial
of the contest.
Particular attention is directed to the first ground of de-
murrer — that the contest misjoins several causes of action.
It is self-evident that fraud and force cannot be exercised by
the same person on the same person at the same time to
Estate of Goodspeed. 151
achieve the same end. The evidence required to sustain the
charges of fraud and of duress or menace would necessarily
be opposed one to the other. Requiring different evidence
they constitute dift'erent causes of action within the purview
of the code, and under section 427, Code of Civil Procedure,
the grounds should be separately stated.
The distinction between the physical cause of injury and
the legal cause of action is clearly stated by Mr. Justice
Harrison in Thelin v. Stewart, 100 Cal. 372, 34 Pac. 861, and
by the same justice, speaking for the court in bank, in Lamb
V. Harbaugh, 105 Cal. 680, 39 Pac. 56.
The fifth paragraph of the contest may be pointed out par-
ticularly as obnoxious to criticism: "That the said Lucy C.
Goodspeed. deceased, at the time of her death, and also at the
time when said instrument or pretended will was signed by
her (if the same ever was signed by her), was a person of
great physical and mental imbecility."
It should seem unnecessary to argue upon the objection-
able character of this clause.
The allegations throughout the contest amounting to a
charge of conspiracy on the part of Daniel Sullivan and
other persons unknown to the contestants are plainly de-
murrable, for certainly the proponents have a right to know
the names of the conspirators.
In support of the various objections on the score of am-
biguity and uncertainty citations are scarcely necessary, but
two or three may be mentioned: Miles v. McDermott, 31 Cal.
271; Jamison v. King, 50 Cal. 132; In re Flint, 100 Cal. 391,
34 Pac. 863 ; Code Civ. Proc, sees. 1312, 1713.
The contest should be amended so as to present the issues
concisely and with certainty, apart from all hypotheses argu-
ments, and conclusions of law.
Demurrer sustained. Ten days to amend.
152 Coffey's Probate Decisions, Vol. 2.
Estate op TH0I\IAS H. BLYTHE, Deceased.
[No. 2401; decided November 24, 1886.]
Administrator — Right to Expend Money on Foreign Lands. —
A demurrer to the "Petition of administrator for leave to expend
$10,000, or such other sum as may be sufficient, to preserve the Mex-
ican lands from forfeiture under the conditions of the grants," was
sustained on the ground that the order prayed for was beyond the
jurisdiction of the court to make.
Administrator — Right to Expend Money on Foreign Lands. — A
previous ruling of the court, authorizing an administrator to deal with
lands situated in a foreign jurisdiction, does not justify an adherence
to such ruling if, upon a new application, the true character of the
issue, as a jurisdictional one, is exposed.
Administrator — Right to Deal with Foreign Lands. — An admin-
istrator has no legal right to deal with lands situated in a foreign
country as if they were within the local jurisdiction.
Administrator — Authority Over Foreign Lands. — A California ad-
ministrator has no power officially in Mexico over lands there; and
the facts in this case show that neither personally nor by virtue of
his office can he claim or take title to lands there.
Administrator — Responsibility for Foreign Assets. — While an ad-
ministrator must include in his inventory all estate of his decedent
coming to his possession or knowledge, it does not follow that he is
bound to account for assets situate in a foreign jurisdiction.
Administrator — Authority in Foreign Country. — A California court
cannot endow its appointee with any official character as adminis-
trator beyond the borders of the state, and when he appears else-
where, he is simply a citizen abroad without any representative fac-
ulty whatever.
Administrator — Authority Beyond Territory of Appointment. —
Where an administrator has no power bej'ond the territory of his
appointment, he can have no duty with respect to any matter extra-
territorium.
Administration. — Under the Mexican Jurisprudence there are no
administrations with respect to the successions of decedents.
Administration. — An Executory Contract is not Itself an Asset; it
is the subject matter of the contract that is. This principle applies
to an executory contract with respect to foreign realty, which is not
a local asset for administration purposes.
Probate Court — Chancery Jurisdiction. — The superior court, sitting
in ]>robatc, has no chancery side.
Probate Court — Limited Jurisdiction. — The superior court, sitting in
probate, deals only with administrations, and cannot assume juris-
diction, except the object upon which it is to operate is before it.
Estate op Blythe. 153
Administirator — Liability in Dealing with Foreign Lands. — As there
is no obligation upon au administrator to go into a foreign country
and deal with lands there, consequently no liability can be claimed
on his part to have attached to him officially by reason of his hav-
ing done so.
Inventory — Assets in Foreign Jurisdiction. — Code of Civil Pro-
cedure, section 1443, with respect to the inventory of decedents'
estates, does not enlarge the well-settled liability of administrators.
That section relates only to estates actually or in legal contemplation
within this state.
The subject matter of this opinion concerned property
in Mexico, which the administrator and his attorney believed
to be of great value. The property consisted of lands lying
on the Colorado river, and as partly then appeared in evi-
dence, and was subsequently during the administration more
fully developed as a fact, an unlimited amount of money
might be required to reclaim said lands ; and a competent
engineer, who had in Blythe 's lifetime professionally visited
the property, on Blythe 's retainer, testified that had Blythe
lived long enough he would, in all likelihood, have dissipated
his valuable estate in San Francisco in his efforts to improve
and protect these Mexican possessions.
John A. Wright, for Public Administrator Roach.
Edward R. Taylor (attorney appointed by the court for
unknown heirs), for demurrants.
W. W. Cope, for Andrade, an associate of Blythe in his
lifetime in the Mexican enterprises.
R. B. AVallace, also for Andrade.
John M. Burnett, for Wm. Savage, claiming to be an heir.
COFFEY, J. This is a demurrer to an application en-
titled "Petition of administrator for leave to expend
$10,000, or such other sum as may be sufficient to preserve
the Mexican lands from forfeiture under the conditions of
the grants." A similar petition (except that the amount
asked for was not specific) was filed September 6, 1886, and
154 Coffey's Probate Decisions, Vol. 2.
a demurrer thereto overruled October 22, 1886 ; but the court
denied the application, deeming it inexpedient to proceed
further with the Mexican project. The administrator having
revived his petition upon the assumption that the court might
favorably regard a limited application, it becomes necessary
again to inquire into the legal merit of the question.
The main ground of the demurrer is, that "the order
prayed for is without and beyond the jurisdiction of the
court to make."
allegations of petition.
The petition sets forth that the administrator had already
expended certain moneys of the estate "for the purpose of
maintaining possession of and title to certain lands situate
in the Republic of Mexico," the grants or titles to which
lands stood in the name of one Guillermo Andrade ; but that
"the said Andrade had expressly acknowledged and declared
that the same were held by him merely in trust for the sole
use and benefit of the said Thos. H. Blythe, and as his prop-
erty," except certain undivided parts thereof, to which the
said Andrade claimed to be entitled, as compensation for his
services in and about the acquisition of said lands; that the
decedent Bl^^the, for many years prior to and at the time of
his death, was in the sole and undisputed possession of said
lands, under the said grants and titles; and that the appli-
cant, as administrator of the estate of Blythe, has, since his
death, maintained and now holds possession of said lands;
that the said grants and titles under which the said lands
were acquired and held were upon the condition that said
lands must be colonized to the extent of placing thereon two
hundred families of settlers, fifty of which must be estab-
lished before January 1, 1887, or the grants will become for-
feited, — and to avert this forfeiture by placing the remainder
of the fifty families (ten more) the administrator asks for
leave to expend $10,000 out of the assets of the estate.
proceedings upon first petition.
The petitioner supports his application by reference to
the orders of the court, pursuant to which he claims to have
expended large sums of money in maintaining title to and
Estate of Blythe. 155
possession of these Mexican lands, and which orders, he
claims, established the principle which should govern the
court in considering this application. "Two judges (Coffej^
and Rearden) have separately considered the question in-
volved in and the expenses of the care of the Mexican assets, ' '
says the counsel for the administrator (page 30, printed
Points and Authorities, before referee), implying that this
court, by its action heretofore, is committed now against the
position of the demurrer. If the court, in the person of
either or both of the judges named, erred in authorizing the
administrator to deal with lands situate in a foreign jurisdic-
tion, that is no reason why it should persist in error, after a
more careful examination of the questions involved has ex-
posed the true character of the is.sue. But an inspection of
the record will show that the court was justified, by the case
presented at the time, in what it did; and that its course has
established no precedent for this application.
ALLEGATIONS OF FIRST PETITION.
On the 6th of June, 1885, the administrator filed a paper
entitled: "Petition for directions to realize on and collect in
foreign assets and to settle partnership affairs with G.
Andrade and others " ; in which he set forth that Blythe was
interested, either legally or equitably, as an owner either in
common or in partnership with Andrade and others, in cer-
tain lands situate in Mexico ; and also as a shareholder in a
certain Mexican incorporation ; and that the said Mexican
property and assets are sources of heavy- outlay and offer
no prospect of producing any income. "And no means exist
[said the administrator applicant] by which they can be made
to produce an income without the expenditure of such sums of
money as would prove disastrous to the estate." And for
many reasons therein stated the administrator verily be-
lieved it would be for the best interests of the whole estate to
sell all of the Mexican assets and to bring the proceeds within
this jurisdiction ; and the applicant further declared that :
"Even if the colonization can be affected at any moderate
cost, the Mexican property cannot thereby be made to yield
any income to the estate, for the colonists will occupy but a
156 Coffey's Probate Decisions, Vol. 2.
small portion of the lands, and must, by the terms of the
contract between the Mexican Government and the partner-
ship of Blythe and Andrade, receive the plots to be occupied
by them gratuitously or at a nominal price, and other induce-
ments must be offered to them to cultivate and improve the
lands appropriated to them, while the large quantity of lands
still remaining must be cared for and protected at heavy an-
nual outlays to this estate."
Further, the administrator applicant set forth that the
only income producing property of the estate is situated in
San Francisco, upon which there is a mortgage of $375,000,
for the payment of which he believed provision would have
to be made before the question of succession could be settled ;
and he stated, as his opinion, that if the heavy outlaw's now
necessary for the protection of the foreign and other unpro-
ductive assets of the estate should continue, it would be im-
possible to accumulate sufficient funds from the income to
pay off said mortgage within the period to which it might
reasonably be expected to remain without foreclosure ; and
for the purpose of paying off this mortgage, and also to settle
the partnership affairs with Andrade and others, the adminis-
trator prayed the court for an order authorizing him to sell
the "Mexican assets" and allowing him $20,000 to carry out
the project of sale.
Moved by the entreaty of this petition, the court (Rearden,
J., temporarily presiding), on June 16, 1885, made an
"Order directing administrator to realize upon foreign as-
sets and for settlement of partnership affairs with Andrade
et al." In that order the statement of facts hereinabove
recited from the petition was adopted and found by the court
as facts upon which it authorized the expedition to Mexico
and to Europe, to make sale of these Mexican lands, the re-
tention and care of which would necessitate the expenditure
of such sums of money "as would prove disastrous to the
estate," according to the administrator's petition.
The project of sale failed, for reasons not necessary to
allude to here; and now we have an application to expend
a certain sum of money in order to keep these lands — ^^which
sum, it is stated, will be all that is necessary for all time to
come — the keeping of which, it was said, in June, 1885,
Estate of Blythe. 157
menaced with disaster the whole productive estate. In acting
upon that petition, the court was actuated by a desire to
forefend disaster, and did not think it was inviting it, or
establishing a precedent or a principle broader than the
terms of the petition, or the rigid limitations of the order of
June 16, 1885. But even if it were otherwise, the question
now presented must be met and decided without regard to
the assumed attitude of the court, when it granted appro-
priations urged thereto by considerations of urgent necessity,
presented by the administrator, and at a time when the
question now raised was not fully, if at all, presented — cer-
tainly not thoroughly investigated.
In the course of the arguments upon this and the former
applications, authorities were cited in great abundance, and
from many states, and from the United States supreme court,
and from the English reports, but it was not necessary, in
the opinion of the court, to go beyond the confines of Cali-
fornia to find a foundation for the judgment which must be
pronounced upon the demurrer; and appended hereto will be
found extracts at length from our own reports, which seem to
me sufficient to justify the conclusion arrived at upon this
application.
All through this administration the administrator has been
dealing directly with these lands, and treating them as if
clothed with power over them as administrator. His present
application and his former applications have been framed
apparently upon the theory that he had the right to manage
and dispose of these real assets, situated in a foreign jurisdic-
tion, the same as if they were within the state of California.
I have searched in vain for a single case upholding this view.
Not one of the cases cited by counsel for the application re-
fers to real assets, nor can the principles laid down in those
cases be extended to the subject matter of this application.
In the examination of the questions involved in this case, I
have been aided by two articles upon "Foreign Administra-
tors and Executors," published in the Albany Law Journal,
volume 34, Nos. 14 and 15, pages 263-267 and 286-292.
These articles comprise a fair review of most of the Amer-
ican authorities (outside of California) upon the subject
treated, and thej^ are here referred to as an aid to investiga-
158 Coffey's Probate Decisions, Vol. 2.
tion. I am satisfied that the administrator has proceeded
upon a mistalcen theory of his duty, and of the power of the
court, in dealing with the Mexican assets, and that his notion
of his liability to the heirs in this connection is erroneous.
The administrator, in the brief of his counsel (page 31), asks:
"Why should he not protect the Mexican assets if Mexico
will let him? Is he not specially charged with the care of
California lands, and authorized to make proper expenditure
for the purpose? Why is he not chargeable with the care of
the Mexican lands, and authorized to make proper expendi-
tures for the purpose, if his powers are as great in Mexico as
here?"
His powers are not as great in Mexico as here; as admin-
istrator he has no power there whatever over real property ;
the fact stands admitted here that neither in his personal
capacity nor in his official character has he, nor can he take,
title to those Mexican lands. While it is true, as claimed by
the administrator, that he must include in his inventory all
the estate which has come to his possession or knowledge
(Code Civ. Proc, sec. 1443 et seq. ; Estate of Butler, 38 N.
Y. 397), it does not follow that he is bound to account for
assets situate without the jurisdiction of the Court by which
he was appointed (Sherman v. Page, 85 N. Y. 123). If the
public administrator should go to Mexico, what office can
he perform — what function would he possess? This court
cannot endow him with any official character beyond the
borders of this state, and when he appears elsewhere he is
simply a citizen abroad without any representative faculty
whatsoever. Where he has no power, he can have no duty.
As an alien in Mexico he cannot hold the title to these lands,
and the official relation that he holds to this estate cannot
repair his personal disability. AVe are called upon to admin-
ister, under the laws of California, an estate situated in Mex-
ico. In may be well here to quote, as apposite to this case,
the concluding remarks of Mr. Justice Cope, in deciding De
la Guerra v. Packard, 17 Cal. 183: "In our view of the
rights and liabilities of the heirs under the Mexican system,
we do not see upon what principle the estate was subjected
to administration under our statute; and Ave are inclined to
Estate of Blythe. 159
the opinion that whatever has been done in this respect must
be regarded as unauthorized and illegal."
But it is now claimed by counsel that we are dealing with
an executory contract which this court may authorize the
administrator to fulfill. This argument in no manner ap-
plies to the question raised by the demurrer to the petition of
the administrator, nor does it agree with the position assumed
up to this time throughout the controversy by the adminis-
trator. (See his printed brief, passim, especially page 12,
as to the duty of the administrator "in respect of Mexican
assets.")
This is either a partnership interest or a trust (see admin-
istrator's petitions) ; it cannot be the same as an executory
contract; it is a personal asset or a real asset — which?
The paper itself — the contract — is not an asset ; it is the
thing itself represented by that paper, i, e., the lands in
Mexico, with which the court deals. This court, sitting in
probate, has no chancery side, as the supreme court of the
state has more than once decided since the adoption of the
constitution of 1879 ; it deals only with administrations, and
cannot assume jurisdiction, except the object upon which it
is to operate is before it. If Blythe died, leaving no estate
at all within the territorial jurisdiction of California, and
no estate but these "Mexican assets," it would hardly be
claimed that by virtue of that "executory contract," admin-
istration might be had in California, and the terms of the
contract enforced through the process of the probate de-
partment of the superior court. No obligation, in any event,
rests upon the administrator to go into Mexico, any more
than to go into India or Australia, or any other remote
country, to deal with real estate, and, consequently, no lia-
bility can attach to his not doing so. So far as he makes
any point on the statute of this state, enlarging his liability,
he errs, in my judgment. Section 1443, Code of Civil Proce-
dure (to which he refers in this connection), relates only
to estate actually or in legal contemplation within this state;
this has been the uniform practical construction of the courts,
and is shown to be correct by a reading of all the sections of
the Code of Civil Procedure bearing upon this subject : Code
Civ. Proc, sees. 1449, 1452, 1516, 1581.
160 Coffey's Probate Decisions, Vol. 2.
"While I have paid due respect to the foreign authorities
upon the issue here presented, I think the question may read-
ily rest upon the decisions of the supreme court of California,
from 12 Cal. 207, to 66 Cal. 432. See the extracts subjoined
to this opinion.
Demurrer sustained.
APPENDIX.
By the COURT. In the Matter of the Estate of Knight, 12
Cal. 207, 73 Am. Dec. 531, Mr. Justice Baldwin, delivering
the opinion of the court, said: "This is unquestionably a
hard case on the administrator, for he seems to have acted in
good faith. But we cannot relax or set aside the rules of
law to suit the exigencies of particular cases or relieve in-
dividual instances of hardship. The statutes of this state
do not allow an administrator to pay even the debts due by
an intestate, except in a particular way. Certainly they do
not allow him to pay money not due by an intestate, upon
the idea that the payment may be beneficial to the estate.
"He is to take care of, manage and preserve the estate
committed to him; but this does not mean that he is, at
discretion, to pay off all encumbrances resting on the prop-
erty, upon the notion that the property may be increased in
value, and thereby a speculation may be made for the estate.
"If this were so, an administrator might consume all the
assets of the estate in clearing the title to a portion of the
property, and then the property may turn out to be valueless
or worth but little. If a case should arise in which a great
sacrifice would ensue unless money were paid to discharge
an encumbrance, it is not impossible that a court of chancery
might order the expenditure of the money needed to remove
such encumbrance.
"The rule of equity is that a trustee has a right, in ques-
tions of responsibility and difficulty, to seek the direction
of a court of chancery touching his conduct in the trust,
and that the decree of the court is a protection to him. But
if he undertakes to go beyond the strict line of duty, as the
law defines it, he acts on his own responsibility, and while
he can receive no profit from a successful issue of his in-
Estate of Blythe. 161
vestments, he must bear the loss of a failure. It would be
a most dangerous precedent to hold that an administrator
may speculate with the funds of an estate, or pay charges
not allowed by law, though solely witlfljie view of benefiting
the estate, and then throw the loss upon the estate, and as-
sign his good intentions as a defense to' the injurious conse-
quences of his act. "" ''
"The administrator, in the absence qf special authority,
must administer the estate as he finds it, paying taxes and
other necessary expenses, and doing such other acts as are
necessary to preserve it as left ; but he cannot advance money
to remove encumbrances, unless the intestate was bound to
pay the money. If he takes the responsibility of improving
the estate or bettering the title in this way, it must be at
his own risk. The loss cannot be visited upon the heirs,
who gave him no authority to cause it. Nor can he ask
legal protection when he has himself, though w^ith the best
motives, gone beyond the provisions of the law."
In the case c/f Smith v. Walker et al., 38 Cal. 385, 99 Am,
Dec. 415, the substance of the opinion of the court, by Mr.
Chief Justice Sawyer, is correctly stated in the syllabus, in
these words : ' ' The surviving member of a partnership own-
ing real property is something more than a mere tenant in
common with a representative of the estate of a deceased part-
ner. He is the trustee for the purpose, of winding up the
affairs of the firm, and is accountable for the value of the
use and occupation of the landed estate of a partnership.
The surviving partner is bound to account and pay over to
the administrator of the deceased partner all the profits of
the realty, as well as that of the personal propert^y, that
rightfully belongs to the estate, notwithstanding he may have
purchased the interests of the heirs in the estate or the com-
munity interests of the surviving wife of the deceased part-
ner; and it is for the probate court to distribute the estate
to the parties entitled."
In the course of the argument of the counsel for the ap-
pellants, in Tompkins v. Weeks, 26 Cal. 52, Eugene Casserly
said: "There is probably no case in which an executor can
lawfully make a purchase of property, except where the
Prob. Dec, Vol. 11—11
162 Coffey's Probate Decisions, Vol. 2.
transaction is necessary for the protection of the estate, and
at the same time involves no expenditure or liability ; as
where, upon a foreclosure sale, the executor holding the first
or only mortgage of property about to be sold for a sum
far below its value, and below the amount due on the mort-
gage, he bids it in for the benefit of the estate, and holds
it precisely as he had held the mortgage. That was the case
in Clark v. Clark, 8 Paige, 152, 157, 158."
That is the case referred to by the counsel for the public
administrator, on page 26 of his Points and Authorities be-
fore the referee.
In the case of Tompkins (administrator of the estate of
Miner) against Weeks, 26 Cal. 66, after quoting with ap-
proval the Estate of Knight, 12 Cal. 207, 73 Am. Dec. 531,
Mr. Justice Sawyer for the court, in the course of his opinion,
said:
"The court had no jurisdiction to make the order, and
the administrator no authority to execute it. The partner-
ship was dissolved by the decease of Miner.
"The partnership property are assets of the firm, and sub-
ject to the exclusive management and control of the surviving
partner. It was not assets of the estate in the hands of the
administrator. Only the share of the deceased in the re-
siduum of the partnership assets, after the affairs of the part-
nership should be wound up and the debts paid, would be as-
sets of the estate in the hands of the administrator.
"The administrator had no authority to intermeddle at
all with the partnership affairs, except so far as he was
entitled to call upon the surviving partner to proceed and
close up the partnership affairs, and to account to him for
the share of the surplus belonging to the estate. The au-
thority of the administrator only extended to settling up the
affairs of the estate, paying the debts and distributing the
remainder, under the direction of the probate court, to the
parties interested."
In the case of Brenham v. Story, 39 Cal. 179, at page 186,
Mr. Justice Temple, delivering the opinion of the court, said :
"The duty of an administrator is to take charge of the es-
tate for the purpose of settling the claims, and, when they
have been satisfied, it is his duty to pass it over to the heir.
Estate op Blythe. 163
whose absolute property it then becomes. To allow the ad-
ministrator to sell, to promote the interests of those entitled
to the estate, would be to pass beyond the proper functions
of an administrator, and constitute him the forced agent of
the living for the management of their estate."
In speaking of the act of the legislature, under discus-
sion in that case, the judge further said (page 188) : "That
it was clearly an attempt to use the office of the administrator
to speculate with the estate of the heirs, and not to adminis-
ter the estate of the deceased. This is plainly beyond the
power of the administrator as such. It is no part of his duty
or authority to manage the estate for the benefit of the estate,
or of the heirs. So far as they are concerned, it is his duty,
simply, to preserve the estate until distribution. He cannot
make investments for them, or satisfy adverse claims, or sell
because the estate will profit by it: Estate of E. Knight,
12 Oal. 207, 73 Am. Dec. 531."'
The case of De la Guerra v. Packard, 17 Cal. 183, 193,
was a case where one Lataillade, a decedent under the Mexi-
can law, left no will, and one Jose De la Guerra, who was the
legal representative of the decedent, took possession of dece-
dent's estate, and attempted to administer the same without
authority, paying out large sums in excess of his receipts.
In 1857 administration was obtained in the probate court;
defendant Packard ultimately obtaining letters. De la
Guerra having died, his executors sued to recover from the
administrator of Lataillade for the excess of disbursements
made by De la Guerra in the matter of the Lataillade estate.
The court held that any claim by De la Guerra 's executors
should have been brought against Lataillade 's heirs directly,
as having been made for their benefit, and not against the
estate.
Mr. Justice Cope, in his opinion, says (page 193) :
"Our conclusion is that, by the rules of the common law,
the plaintiffs are not entitled to recover, and we are satis-
fied that whatever may be their rights under the laws or juris-
prudence of Mexico, they have mistaken their remedy.
"Under the Mexican system their testator stood in the
position of a voluntary agent, and represented the persons
of the heirs, and not the estate.
164 Coffey's Probate Decisions, Vol. 2.
' ' The heirs succeeded immediately to the estate, and became
personally responsible for the debts of the deceased. The
disbursements and payments of these debts were on behalf
of the heirs, and in discharge of their personal liability. If
any claim exists for the amount of these disbursements, it is
against the heirs, and not against the estate.
"Indeed, in our view of the rights and liabilities of the
heirs under the Mexican system, we do not see upon what
principle the estate was subjected to administration under our
statute, and we are inclined to the opinion that whatever
has been done in this respect must be regarded as unau-
thorized and illegal."
In Rolfson v. Cannon, 1 West Coast Rep. 696, 3 Utah, 232,
2 Pac. 205, Mr. Justice Twiss, of the supreme court of Utah,
says:
"It is the duty of an administrator to administer an es-
tate, to take care of and preserve it, to collect all the moneys
and to dispose of the balance in his hands as required by law.
"Having done this, the estate is administered and he en-
titled to his discharge, and the heirs are entitled, in due form
of law, to their especial portion of the estate. The admin-
istrators were not authorized to erect the dwelling-house with
the funds of the estate, or a house to be occupied by one of
them, or for any other use or purpose. Neither could they
involve the estate by borrowing money, with which to pay for
the material or for the labor performed in the construction
of such houses. They did not have authority to charge the
estate vfith the repayment of the money borrowed by them
for that purpose. The borrowing of this money was not a
contract between Heath as administrator and the appellant,
although it may have been a contract between him in-
dividually and the appellant. The facts that the estate of
the deceased was improved, and the value of it enhanced
by the erection of the houses, and that the money was bor-
rowed for the purpose of, in part, paying for the material
and labor necessary for the construction of the same, do
not make the estate liable for the debts thus contracted. An
administrator is not permitted to use the funds of an estate,
or to borrow money upon its credit or liabilit}^ for such
speculative purposes. ' '
Estate of Herzo. 165
While an Executor or Administrator has no Authority to pursue
assets of the estate by legal process in a foreign jurisdiction, he
nevertheless owes a duty to collect them to the extent of his ability
to do so, and the court should compel him to account for his failure
to perform this duty. There is no doubt of his authority to receive
the voluntary payment of debts in a foreign jurisdiction, at least if
no ancillary administration has been granted there. He must account
in the domiciliary administration for the money received, and the
payment will discharge the indebtedness even as against an ancillary
administrator subsequently appointed: Estate of Ortiz, 86 Cal. 306,
21 Am. St. Rep. 44, 24 Pac. 1034; Fox v. Tay, 89 Cal. 339, 23 Am.
St. Rep. 480, 24 Pac. 855, 26 Pac. 897; Joy v. Elton, 9 N. D. 428, 83
N. W. 875; note in 45 Am. St. Rep. 664.
Estate of ANNA HEKZO, Deceased.
[Decided April 30, 1902.]
Inheritance Tax — Bequest for Masses. — Bequests for masses are for
charitable purposes, and therefore exempt from the operation of the
collateral inheritance tax act of 1899.
Inheritance Tax — Bequest for Altar. — A bequest to beautify the
altar of a church is for a charitable purpose, and therefore not sub-
ject to the collateral inheritance tax act of 1899.
John J. 'Toole, for certain legatees.
A. Heynemann and A. Comte, Jr., for executors.
Anna Herzo bequeathed four legacies to certain priests
in Dalmatia, each legacy being bequeathed to "the governing
priest or pastor" of the church (naming it). Three of these
legacies, to quote from the language of the will of said de-
ceased, are "to the governing priest or pastor of the church
known as (naming church), to be invested by him and the
income thereof paid to the authorities of said church, for
the celebration of masses for the repose of my soul, and the
repose of my deceased husband and his and my relatives."
The fourth legacy is "to the governing priest or pastor
of the church called 'Madonna del Campo Grando,' to be ap-
166 Coffey's Probate Decisions, Vol. 2.
plied in ornamenting and beautifying the altar in sail
church, etc."
The act commonly known as "the Collateral Inheritance
Act of 1899" exempts from taxation legacies or bequests
to any person, society, corporation or association in trust for,
or to be devoted to, any charitable, benevolent, educational
or public purpose : Cal. Gen. Laws, 1899 ed., p. 1192.
If the legacies bequeathed by deceased for "masses for the
repose of her soul," etc., are for charitable purposes, they are,
of course, exempt from the tax under the act.
Masses are not bought, any amount or anything given to the
priest for their celebration is given as a gratuity, or as an
alms-offering. That the giving of alms is a charity is a
proposition that does not need authority to support it.
The courts of the United States all agree that a bequest
' ' for masses for the repose of the soul of testator and his rela-
tives" is a charitable bequest.
In Kerrigan v. Tabb (N. J.), 39 Atl. 701, the court says:
"A use of this kind (a bequest for masses ) based on the doc-
trines and practices of a Christian church, and which does
not impair any of the rights or obligations arising under the
authority of the state, its constitution or laws, must be con-
sidered a religious use."
A bequest for the support of religion or for a religious
use is certainly for a charitable and benevolent purpose,
and clearly within the exemption of the act.
In Alden v. St. Peter's Parish, 158 111. 637, 42 N. E. 392,
30 L. R. A. 232, the learned judge, in expressing the opinion
of the court, said: "A gift for the support of churches or
to pay the expense of any religious doctrine comes within
the equity, and therefore within the spirit of the statute, as a
gift for a charitable use."
In Andrews v. Andrews, 110 111. 223, it was held that a
devise of land to a church to sustain the preaching of the
gospel, and to use the income of the property to pay any
balance of salary due the minister was a public charity.
If to sustain the preaching of the gospel is a charity,
so the practice of the rites of any religion (which rites
are not contrary to law) is a charity. The celebration of
Estate of Herzo. 167
masses is one of the rites and ceremonials of the Catholic
church.
As was said in Alden v. St. Peter's Parish, "a gift for
the support of churches or to pay the expense of any relig-
ious doctrine comes within the statute." While the money
bequeathed for masses is not offered or received as pay for
the masses, it is accepted by the priest and used by him
for his own support and for the support of his church,
and as such is undoubtedly a charity.
In Re Schouler, 134 Mass. 426, the court said: "Masses
are religious ceremonials or observances of the church of
which she (the testatrix) was a member, and come within
the religious and pious uses which are upheld as i)ublic
charities."
The same doctrine is announced in Jackson v. Phillips,
14 Allen, 539.
In Hoeffer v. Clogan, 171 111. 462, 63 Am. St. Rep. 241, 49
N. E. 529, 40 L. R. A. 730, the court said: "It cannot be
denied that bequests for the general advancement of the
Roman Catholic religion, the support of its forms of wor-
ship, or the benefit of its clergy, are charitable equally with
those for the support or promotion of other forms of
religious belief or worship ' ' ; and in commenting further
on the same matter it said: "The bequest (for masses) is
not only for an act of religious worship, but also for the
support of the clergy; although the money is not regarded
as a purchase of the masses, yet it is retained by the clergy,
and of course aids in the maintenance of the priesthood."
In Rhymes' Appeal, 93 Pa. 145, 39 Am. Rep. 736, it
was contended that a bequest "for masses for the repose
of testator's soul" was void, because the will was not exe-
cuted prior to thirty days before death of testator, as was
required by the act of 1855 (which is similar to section
1313 of the California Civil Code). The court upheld the
contention, declaring that the bequest was a charitable one,
and therefore must fail by reason of the will not being
executed prior to thirty days before testator's death.
And in view of the decisions of the highest court of our
sister states, the court must conclude that the legacies be-
168 Coffey's Probate Decisions, Vol. 2.
queathed by Mrs. Herzo for masses are for charitable pur-
poses, and therefore exempt from the tax.
As to the fourth legacy, given "to beautify the altar,"
the court must come to a like conclusion ; it is also exempt
from the tax, for it is for a charitable and benevolent pur-
pose.
In Jones v. Habersham, 107 U. S. 174, 2 Sup. Ct. 336,
27 L. Ed. -101, the court held that "a bequest to a certain
church (eo nomine) is a charitable bequest, as being pre-
sumably intended for building, repairing and beautifying
a place of public worship." In the case at bar, the bequest
is expressly given for "beautifying" a place of public wor-
ship.
This court in construing the term "charity" in Estate of
Emeric, held that a bequest "for repairing and restoring the
old Roman Catholic Church in the town of Neoules" was a
charitable bequest. The court can see no difference, so far as
principle is concerned, between repairing and restoring and
beautifying, and hence must conclude that the legacy in ques-
tion here is also for a charitable purpose, and is, therefore
exempt from the tax in question.
Estate of :\I. O'BRIEN, Deceased.
[No. 19,824; decided May 8, 1899.]
Will — Contest on Ground of Forgery. — The probate of a will is
permitted to stand in this case as against a charge that the instru-
ment is a forgery, the charge being based on the theory, which finds
some support in the evidence, that the testator was not at the place
where the will was executed at the time of its execution.
T. E. Pawlicki and P. J. Muller, for contestant.
F. J. Kierce (Kierce, Sullivan & Gillogley), for proponent
and respondent.
The will herein was admitted to probate May 27, 1898,
a contest instituted prior to probate having been denied
Estate of O'Brien. 169
on the same day. That pre-probate contest was by one
Mary MeGowan, a sister of deceased, an-d the grounds
stated being unsoundness of mind, nonexecution and undue
influence.
This post-probate contest was filed October 3, 1898, by
one Margaret Durkin, another sister of decedent testator.
and is confined to a charge of forgery alleged to have
been perpetrated by one James C. O'Brien, a brother of
decedent, on the third day of March, 1898, several months
after the date of the instrument, w^hich was October 7,
1897, the day of this date being Thursday. The date of
the death of decedent was March 3, 1898. It is contended
by counsel for contestants that the will was never executed,
and that according to the proof it is impossible that it
could have been executed on Thursday, October 7, 1897,
for the evidence shows that on that day the decedent, M.
O'Brien, was at a party given in honor of one Tom Parker
at the O'Neill's place, on Point Lobos avenue, and he did
not leave there until "the last car home," near to 12 o'clock
midnight; the ledger of decedent used in his business and in
his handwriting is adduced to corroborate the oral testi-
mony on this point, page 47 of this little red book or ledger
containing a pencil entry seeming to signify that on "Oct.
7," 1897, he delivered a quantity of cigars to the witness
O'Neill at Point Lobos and Fifth avenues. It is contended
further that the evidence establishes that the instrument
was concocted and written after M. O'Brien's death, and
that it was fabricated and forged on the 3d of March, 1898,
as the result of a conspiracj^ by the parties who originally
procured its probate. In support of this contention coun-
sel for contestants allude to what they term the strange
circumstances surrounding the alleged execution of this
instrument and the improbabilitj^ of the truth of the tes-
timony of the witnesses for the proponent, also the dis-
similarity of the signature "M. O'Brien" appended to the
will and the admitted signatures to other papers, and coun-
sel claim that this discrepant element is discernible, for
although, of course, a forger does not fortuitously simulate
a script, and, therefore, as the result of study some simi-
170 Coffey's Probate Decisions, Vol. 2.
larity must appear, still there will remain always some in-
dicia of iniquity.
Particular stress is laid by counsel for contestants upon
the item of evidence furnished by the entry in "the little
red book" or ledger, page ^T, and, in answer to the intima-
tion that the entry shows signs of having been tampered
with, counsel insist that it is the height of absurdity to
insinuate that contestants changed the item so as to show
that decedent was at the O'Neills' house on October 1,
1897, the date of the will. The important nature of this
item is dwelt upon by counsel because of its corroborative
character coming from an unimpugnable source, the in-
dubitable hand of decedent. It is a fact that the sub-
scribing witnesses testified that the will was executed near
to 8 o'clock in the evening of October 7, 1897, and it is a
fact that O'Neill and his wife testified that he was at their
place on that evening, and M. O'Brien, the decedent, came
to their place to deliver certain cigars — two hundred and
fifty — and the O'Neills induced him to remain to the party
given in their house to Tom Parker, and that O'Brien did
not leave until time to take the last car to the Potrero,
near to midnight, and it is claimed that the entry on page
47 of the ledger written by the decedent himself confirms
this testimony of the O'Neills. In addition to this argu-
ment, counsel raises the point upon the contents of the
document: Motive of decedent to prefer Katie O'Brien to
others, and it is argued that there was no reason in fact
for any such preference ; that there was more reason to prefer
the others, and the reason assigned in the alleged will has
no adequate foundation.
The will is as follows:
"South San Francisco, October 7, 1897.
"To all whom it may concern if any thing happens to me,
I want to give everything I own to my sister, Katie O'Brien
for she was always so kind and good to me.
"M. O'BRIEN,
"1863 15th Ave.
"Maggie Dullea O'Brien.
"Patrick O'Brien."
Estate of O'Brien. 171
The reason for contesting the will is asserted to be not
a matter of pecuniary interest, but one of principle, for
the statutory share of each is too small to justify a fac-
tious contest, but the contestant believes the alleged will
to be false and forged, and is, therefore, concerned in con-
science to thwart the consummation of a conspiracy to palm
off upon the court the fruit of fraud.
The only perplexity in this case arises upon the testi-
mony as to the whereabouts of the decedent, M. O'Brien,
at the time of the alleged execution of the instrument in
probate. Thursday, October 7, 1897. Notw^ithstanding his
nationality, he could not have been in two places at once ;
from Point Lobos to the Potrero is a far cry at night,
and if M. O'Brien was from sundown to midnight enjoying
the hospitality of the O'Neills, he could not have been
simultaneously in the seclusion of his own home, and con-
sequently there was either a mistake in the date of the
probated paper or it is the expression of mendacious ma-
chinators. This is the whole case of plaintiff, and upon
her rests the burden of proof. She is bound to make out
her case by a preponderance of proof. The swearing is
stout and strong on both sides and yet the pecuniary
temptation to perjury, only a few hundred dollars in value,
is scarcely sufficient to justify or extenuate a fracture of
the eighth commandment : Ex. xx, 16 ; Deut. v, 20. But
it is frequently found that other motives than those merely
monetary operate to pervert the moral sense, and that malice,
hatred and envy, three distinct passions of the mind, co-
operate to corrupt the heart and induce false swearing.
It is charitable, however, to seek for worthier motives in
the liability to error of perception or recollection and to at-
tribute to mistake rather than to malice, or other evil de-
sign, the differences in the statements of witnesses. It is
possible that every witness in this case is truthful in intent,
and the court should be slow to pronounce any one false
in purpose. There may have been a mistake in the date
of the instrument in probate, and yet the main facts might
remain established; the date may be correct and the entry
in the ledger accurate, and still decedent may have deliv-
ered the two hundred and fifty cigars to the O'Neills on
172 Coffey's Probate Decisions, Vol. 2.
that day in time to return home early enough to execute
the will at 8 o'clock. In this view the O'Neills may be
honestly at fault in their recollection of the fact as to the
particular party at which decedent was present. This I
take to be the explanation of the matter. I cannot come
to the conclusion, after full deliberation, that this probated
paper is a post-mortem fabrication on the part of James C.
O'Brien or any other person. The testimony for con-
testant, although plausible in presentation by counsel, is
not sufficiently strong to overcome proponent's proof.
There is nothing unnatural or unreasonable in the disposi-
tion of his property by the testator; the reason assigned
is dutiful and just, and cannot support intrinsically a doubt
as to its validity or genuineness. As to the imputed dis-
similarities between the subscribed name "M. O'Brien" on
the instrument and the acknowledged or admitted signa-
tures of decedent, they disappear under examination and
comparison. Strongly and sincerely as counsel for con-
testants have presented their case to the contrary, I con-
clude that the signature is genuine and that the probate of
the will should stand.
Estate of JULIA J. FITZGERALD, Deceased.
[No. 91,287; decided May 6, 1899.]
Word "Heirs" not Technically Construed in Will. — -The word
"heirs" in a testamentary instrument will not be construed tech-
nically, if the intention of the testator as disclosed by the context
will thereby be defeated and a portion of the will rendered inoper-
ative.
Remainders — Wlien not Based on Double Contingency. — Under a
will which reads: "I give to my daughter all the property of which
I die seised, remainder to the heirs of her body in fee simple, but
in the event of her death without surviving heirs of her body, I
direct said remainder to be distributed to my heirs then surviving
according to the law of descent at the date of my daughter's death,"
the remainders cannot be attacked as invalid on the ground that the
contingencies on which they dejjend are double or constitute a pos-
sibility upon a possibility; they are alternate, and respectively depend
on only one contingency.
Estate of Fitzgerald. 173
Jones and O'Donnell, for petitioner.
John B. Carson, for certain heirs.
Augustus Tilden, for the executor.
THE FACTS.
Petitioner is the only child and heir at law of the de-
ceased. She had not, at the time of the death of deceased,
and has not, any heirs of her body.
Deceased left a will, of which the part pertinent to this
inquiry is as follows:
"I give, devise and bequeath unto my beloved daughter,
Anna Josephine Fitzgerald (Lee), for her natural life, all
the real and personal property of which I die seised and
possessed, remainder to the heirs of the body of said Anna
Josephine Fitzgerald in fee simple, but in the event of her
death without surviving heirs of her body, I direct that said
remainder be distributed to my heirs then surviving ac-
cording to the law of descent and distribution in force
in the State of California at the date of my said daughter's
death."
By her petition for partial distribution, which affects
one of the two parcels of real property belonging to the
estate, petitioner asks the court to adjudge that the fore-
going provision is in effect an absolute devise, and, to that
end, to hold that the remainders therein created are void.
The executor and the parties represented by Mr. Carson
insist upon the entire validity of the will,
SUMMARY OF PETITIONER'S ARGUMENTS.
Petitioner's arguments may be summarized as follows:
1. The second remainder is void because it is in effect
a devise to petitioner for life, remainder to petitioner in
fee, which is tantamount to the disposition in the first in-
stance of the absolute fee.
2. The first remainder is void because it contains a pro-
vision in restraint of marriage.
3. Both remainders are void because of the "double con-
tingency," or "possibility upon a possibility."
17-4 Coffey's Probate Decisions, Yol. 2.
the first point
involves the construction of the words ''my heirs then sur-
viving," as used in the foregoing provision. Petitioner con-
tends that no such remaindermen do or can exist, for the
reason that, she being testatrix's heir, no one of remoter
degree of kinship can be her heir.
It is impossible to deny the force of this construction, pro-
vided the word "heirs" be technically construed and the tes-
tatrix's manifest intention ignored, for it is manifest from the
context that by the word "heirs" she meant collateral rela-
tives. So to hold will be to render the paragraph wholly
inoperative, contrary to the provisions of Civil Code, section
1325, which directs that "the words of a will are to receive
an interpretation which will give to every expression some
effect, rather than one which will render any of the expres-
sions inoperative."
A TECHNICAL CONSTRUCTION.
From the earliest times courts have refused to approve the
construction contended for by petitioner. At common law,
when a remainder was limited by deed to the heirs of A (A
being in being), the maxim, "Nemo haeres viventis est,"
operated to render the remainder void. When the same re-
mainder was limited by will, the maxim was ignored in favor
of the manifest intention of the testator. So when land was
deeded to A for life, remainder to the heirs female of his
body, and he died leaving a son and a daughter, the remainder
failed, because, as the son was the heir, the daughter could
not answer to the description of both female and heir. Con-
trary, when the limitation M'as by will, which was a case par-
allel with the one at bar: Coke's Littleton, 24 b.
RIGID CONSTRUCTION NOT WARRANTED.
Even were the court inclined to greater rigidity of con-
struction than that laid down at so early a date, and thence
steadfastly adhered to, the statute would not warrant it.
Technical words in a will are to be taken in their technical
sense, unless the contest clearly indicates a contrary inten-
Estate of Fitzgerald. 175
tioii: Civ. Code, sec. 1327. Technical words are not neces-
sary to give effect to any species of disposition by will: Civ.
Code, sec. 1328.
"When applying a will it is found that .... no person
.... exactly answers the description, mistakes .... must
be corrected, if the error appears from the context of the
will:" Civ. Code, see. 1340.
Accordingly "money" has been held to include "real
property": Estate of Miller, 48 Cal. 165, 22 Am. Rep. 422.
And, more in point, "children" has been held to designate
"grandchildren": Estate of Sehedel, 73 Cal. 594, 15 Pac.
297 ; Rhoton v. Blevin, 99 Cal. 645, 34 Pac. 513. Similarly,
in other states, "bequeath" held to mean "devise": Dow v.
Dow, 36 Me. 216 ; Estate of Fetrow, 58 Pa. 427. And where
a reservation would have been void because repugnant to es-
tate devised, construed, an executory devise, to effectuate the
manifest intention of the testator : Homer v. Sheldon, 2 Met.
194.
Counsel for petitioner do not question that the intention
of testatrix was other than the word "heirs," technically
construed, implies, and I am satisfied that such intent, when
so clearly disclosed by the context, should, against the alterna-
tive of total intestacy as to the second remainder, be per-
mitted to prevail.
the second point
raises the question of the validity of the first remainder,
counsel's contention being that it is void because in restraint
of marriage. Say they: "We claim that because petitioner
gets the life estate and the second remainder under the will
if she marries and has issue surviving her, but if she does not
marry and have issue, then she must necessarily, as devisee
and heir, get the whole fee, therefore, the fact of marriage
and having issue is in the nature of a penalty, because by so
doing the estate goes to somebody else. ' '
As this contention assumes the invalidity of the second re-
mainder, contrary to the views above expressed, it must be
overruled. But were the second remainder void, it would
seem that the contemplation of the estate falling to strangers,
instead of to her own issue, would hasten any properly con-
176 Coffey's Probate Decisions, Vol. 2.
situted person to the altar rather than frighten her there-
from.
THE THIRD POINT
is aimed at the validity of both remainders, on the ground
that the contingencies on which they depend are "double,"
or constitute a "possibility upon a possibility."
The feature of the death of petitioner may be eliminated,
because it is not a "contingency"; it marks the certain ter-
mination of the particular estate and vesting of the remainder.
The contingency on which the first remainder is limited
is the existence of heirs of petitioner's body at the time of
her death.
The contingency on which the second remainder is limited
is the existence of collateral relatives ("my heirs then sur-
viving") of the testatrix, who shall be testatrix's descendants
under canons of descent prevailing at petitioner's death, and
who shall survive petitioner.
Petitioner claims duplicity in this: the petitioner's death,
without issue, is one contingency, W'hilst the probability or
possibility that the law of descent at her death may be differ-
ent from what it was at testatrix's death, is a second contin-
gency.
THE VIEW TAKEN BY THE COURT.
Each remainder stands alone, and should be construed with-
out reference to the other, as though it alone existed, for the
remainders are alternate. Counsel have fallen into the error
of confounding the contingency peculiar to one with the con-
tingency peculiar to the other, and of applying both contin-
gencies to both remainders and to each indiscriminately.
The court takes the view that the first contingency marks the
vesting of the first remainder; the second contingency marks
the vesting of the second remainder. The two remainders
depend upon contingencies "entirely independent of each
other, ' ' to use the language of counsel for petitioner, but they
respectively depend only upon one contingency — the sur-
vival of a person competent to take.
CONFORMABLE WITH COMMON LAW AND CODE.
This manner of disposing of future interests is conformable
with the common law and with the provisions of the code.
Estate op Fitzgerald. 177
The statutory rule is, Civil Code, section 767: "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 termination, by lapse of time or
otherwise, of a precedent estate created in the same."
This, and other sections not necessary to be here cited,
are simply declaratory of the common law, although they
have the effect of abolishing executory devises, eo nomine,
and of clothing remainders with qualities formerly peculiar
to executory devises.
ALTERNATIVE REMAINDERS.
And concerning alternative remainders, the Civil Code,
section 696, provides: "Two or more future interests may be
created to take effect in the alternative, so that if the first in
order fails to vest, the next in succession shall be substituted
for it and take effect accordingly."
In the present case, should "the first in order (the re-
mainder to Anna's issue) fail to vest," where will the "next
in succession" vest? Not necessarily in the persons who,
had petitioner predeceased testatrix, would, under section
1386 of the Civil Code, have been testatrix's heirs; but, neces-
sarily, in the persons who, under that or any superseding
section of law in existence at the time of Anna's death, shall
be the "heirs then surviving" of testatrix.
NO DIFFICULTY IN THE DETERMINATION.
Applying this test, there will be no difficulty in determin-
ing who, as alternating beneficiary with Anna's issue, should
succeed to the remainder.
The executor's counsel claim that, even though the remain-
ders be void, the life estate is not thereby enlarged, as a
clear devise of an estate for life cannot be defeated by an un-
certainty as to what may come after the death of the life-
termer. It is not necessary for the court to decide this point,
inasmuch as it has taken the view that the remainders are
valid.
The deniurrer to the petition for partial distribution should
be sustained, and it is so ordered.
Prob. Dec, Vol. II — 12
178 Coffey's Probate Decisions, Vol. 2.
In the Matter of the Estate of WINFIELD S. JONES,
Deceased.
[Decided December 29, 1904.]
Substitutional Legacies. — Where a Decedent Leaves Two Testa-
mentary Instruments which are admitted to probate as his last will,
in each of which he bequeaths to several persons, respectively, the
same amounts, and denominating each instrument as his last will,
such language constitutes intrinsic evidence of the testator's inten-
tion, and the legacies in the latter instrument are substitutional for
those contained in the former.
Charities — One-third of Estate — Conflict of Laws. — Where a testator
leaves real and personal property in California and real property in
other states, and devises one-third of his estate to charities, the courts
in this state cannot take into account the property situated beyond
their jurisdiction in determining what one-third of the estate is.
Charities — One-third of Estate — How Determined. — The word "es-
tate," as employed in section 1313 of the Civil Code, means estate
in California. The one-third of the estate which may be given to
charity is one-third of the distributable assets of the estate.
Residuary Clauses. — Where Two Testamentary Instruments are Ad-
mitted to Probate as the last will of the testator, each instrument
in itself being complete as a will and each containing a residuary
clause, the two clauses are inconsistent and the latter clause pre-
vails, unless it fails in whole or in part, in which event the residuary
clause of the prior will operates.
Residuary Clauses — Charities. — In this Case it is Held that the
Residuary legatees under a former will take the residuum of the es-
tate, which is beqeathed to charities by the residuary clause of a lat-
ter will, but which they are unable to take by virtue of the restric-
tions imposed by section 1313 of the Civil Code.
Wills — Several Instruments. — The Rule of Construction is substan-
tially the same where there are several wills to be harmonized, as
where there are several clauses in the same will and codicils.
Wills — Transposition of Order of Bequests. — Where it appears from
the entire language of a will that the testator's intention will be
rendered clearer by transposing the order of the bequests, the court
will construe the bequests as though the testator had written them
in the transposed order.
Wills — Several Instruments. — Two testamentary instruments are to
be taken and construed together as one instrument.
Wills. — All the Parts of a Will are to be Construed in relation to
each other, so as, if possible, to form one consistent whole; but where
several parts are wholly irreconcilable, the latter must prevail.
Estate of Jones. 179
Wills. — A Prior Will Remains Effectual so Far as Consistent with
the provisions of the subsequent will.
Charities. — The Excess of an Estate All Over and Above the One-
third to charities goes to the residuary legatee or devisee, preferably
to the next of kin or heirs at law, according to the provisions of
section 1313 of the Civil Code.
Intestacy. — The Very Fact of Making a Will Raises a Very Strong
Presumption against any expectation on the part of the testator of
leaving any portion of his estate beyond the operation of his will.
Intestacy — Intestacy is not Favored in Law. — The law prefers a
construction of a will which will prevent a partial intestacy to one
which will permit such result.
Smith & Pringle. for executors.
P. J. Miiller, representing Page, IMcCutehen & Knight, for
Mary and Virginia B. Jones, sisters of decedent, and residu-
ary legatees under the first will.
Garber, Creswell & Garber, for the First National Bank of
Bakersfield, as assignee of W. Brooks Jones, one of the lega-
tees under both wills.
Elliott McAllister, for ]\Iaria Kip Orphanage.
Wilson & Wilson, for Bishop Armitage Orphanage.
E. H. Rixford, for Protestant Episcopal Old Ladies' Home.
E. H. Rixford, and William Mintzer, for Grace Church.
COFFEY, J. Winfield S. Jones died leaving two wills.
The first will was dated July 15, 1896. The codicil added
thereto was dated October 7. 1899. The second will was dated
August 31, 1901. These three testamentary instruments were
admitted to probate as the last will of the deceased : Civ. Code,
sec. 1320.
By the first instrument there is bequeathed to S. L. Abbot
the third, the sum of one hundred (100) dollars; to W.
Brooks Jones, a nephew of deceased, the sum of five thousand
(5,000) dollars; and to T. Skelton Jones, an uncle, the sum
of five thousand (5,000) dollars. In addition, there are be-
quests to other persons. Executors are appointed, and the
180 Coffey's Probate Decisions, Vol, 2.
residue of the estate is devised and bequeathed to Mary Jones
and Virginia B. Jones, the testator's surviving sisters, thus
disposing of his entire estate.
By the codicil the sum of one thousand (1,000) dollars is
bequeathed to the rector, wardens and vestry of Grace church.
The second will which, in effect, likewise disposes of the
entire estate of the testator, ends with the words "This is my
last will." It contains bequests to a number of persons, in-
cluding the persons aforementioned, namely, S. L. Abbot the
third, W. Brooks Jones, and T. Skelton Jones, to each of
whom there is bequeathed the sums respectively bequeathed
to them by the tirst will; the remainder is given and devised
to charities. No executors are appointd in this will.
The estate of the deceased consisted of real and personal
property situate in California, aggregating in value a sum
in excess of one hundred thousand (100,000) dollars. Also
real property situate in Washington, D. C, and an interest
in the family farm situate in Fairfax county, Virginia,
which are specifically devised by the second will to the testa-
tor's sisters. These properties have never formed part of the
estate within the jurisdiction of this court, and were not in-
ventoried and appraised.
The bequests to charities, by the residuary clause of the
second will, collectively exceed one-third of the estate.
The questions of law involved and presented to the court
for consideration are as follows :
First. Are the bequests to S. L. Abbot the third of one
hundred (100) dollars, to W. Brooks Jones of five thousand
(5,000) dollars, and to T. Skelton Jones of five thousand
(5,000) dollars, accumulative or substitutional! It is con-
tended by the sisters of the deceased that they are substitu-
tional; the assignee of W. Brooks Jones claims that they are
cumulative.
Second. Are the charities entitled to one-third of the prop-
erty situate in Washington and Virginia, and if so, is that
third to be paid them out of California assets ? The charities
contend that they are entitled to one-third of the assets of the
estate wherever situate, payable out of the California estate.
The sisters oppose this contention.
Estate op Jones. 181
Third. Are the sisters of deceased entitled to the residue
of the estate under the residuary clause of the first will, ex-
clusive of the next of kin or heirs of the testator? The sis-
ters claim that they are. The assignee of W. Brooks Jones is
opposed to this view.
These questions will be dealt with in their order.
First, therefore, let us consider whether the bequests to S.
L. Abbot the third, W. Brooks Jones and T. Skelton Jones in
the second will are substitutional or accumulative.
It is a well-known rule of law that if two legacies are given
to the same person, and the intent is that the legatee shall
have both, the legacies are said to be cumulative ; if the latter
is only a repetition of the former, it is said to be substitu-
tional. In ascertaining the intent, the following rules of
construction have been adopted:
1. If the same specific thing is bequeathed twice to the same
legatee in the same will or in the will and again in the codicil,
the legatee can claim the benefit of only one legacy, because
the same identical thing can only be given once.
2. Legacies of quantity bequeathed by one and the same
instrument, if of unequal amounts, are cumulative ; if equal,
the second is considered a repetition or substitution of the
first, and the legatee is entitled to one only.
3. Legacies of quantity, given by different testamentary
instruments, as bj^ will and codicil, to the same person, are
prima facie cumulative, whether of equal or unequal amounts,
unless the amounts are the same and expressed to be given
with the same motive, or it appears from intrinsic evidence
that the second instrument was intended as a mere substitu-
tion for the first. If either of these latter circumstances oc-
curs, the second legacy is substitutional: See 13 Am. & Eng.
Ency. of Law% p. 54 et seq.
It is only necessary for the present to consider the third
of these rules.
It appears intrinsically from the instruments themselves
that the becpiests in the second will to the persons aforesaid
are substitutional ; the very language contained in the second
will is conclusive upon that point. The second will ends with
the words ' ' This is my last will. ' ' What more forcible mode
of expression could the testator have employed to indicate
182 Coffey's Probate Decisions, Vol. 2.
that the legacies to S. L. Abbot the third, W. Brooks Jones
and T. Skelton Jones contained in the second will were to be
a substitution for the legacies to them of the same amounts,
respectively, contained in the first will ?
And thus the courts have held that the form of the instru-
ment by which the second legacy is given may show that it
was intended to be substitutional. Such is the case where the
two legacies are given by different instruments and the latter
instrument is not a codicil but is described as a last will and
testament, or is such in effect.
In the case of Attorney General v. Ilarley, 4 Madd. (Eng.
Ch.), 267 (decided May 17, 1819), the vice-chancellor said:
"If the legacies to Mrs. Ilarley were alone to be considered,
she would be plainly entitled to both ; but the ciuestion here is
whether the instrument does not afford internal evidence that
it was meant by the testatrix, not as an addition to the first
instrument but as a substitution for it. It begins with all the
forms of the first instrument, with the same expressions of
religious resignation, nearly in the same words. It then
proceeds to appoint Martha Ilarley her sole executrix, by
the same description as in the first instrument; and it then
proceeds to give, with little variation, the same legacies to
the same persons who were the ob.jects of her bounty by the
first instrument. I think the inference irresistible that the
textatrix intended the third instrument as a substitution for
the first; and that Mrs. Harley must therefore take the un-
conditional legacy of 1,000£ given by the third instrument, in
the place of the conditional legacy given by the first instru-
ment. "
In the ease of Hemming v. Gurrey, decided May 5, 1825, 2
Sim. & S. 212, at page 222, it is said: "With respect to the
plaintiff's claim of two annuities of 500£ each, under the two
testamentary papers of G. Hemming, I am of opinion that
the second instrument was not made as an addition to, but
as a substitution for, the first if not wholly, at least in the
greater part and plainly as to the annuities in question. This
is evident from comparing the form and expression of the
two instruments, from the general similarity of the two an-
nuities and legacies, and from the particular gifts of the
Barrow and Edgeware estates."
EsTiVTE OF Jones. 183
In the case of Kidd v. North, decided April 22 and 24,
1845, 14 Sim. 462, "Testator by his will gave to his son 20£
to be paid within one month after his death By a
subsequent testamentary instrument which purported to be
his last will, but which he left unfinished, he gave 19£ 19s. to
his son Held, that the legacies of 19£ 19s were
substitutions for the legacies of 20£ .... previously given to
the son. ' '
Again, in the case of Tuckey v. Henderson, decided July,
1863, 33 Beav. 176, the master of the rolls said: "I am of the
opinion .... that upon the construction of these two wills
of the testatrix, the second instrument was meant to be in
substitution for the first. It is true that both are wills of
the testatrix, and that both are admitted to probate, and that
it is therefore simply a question of construction. But as a
question of construction, I am of opinion that the second is
substitutionary for the first, as regards the legacies in the
first will to legatees who are also named as legatees in the
second. This differs from the case of a codicil — a codicil is
professedly an addition to the wdll — but this is professedly a
substitution for it. Though it is called 'the last will' that
does not prevent the proof of the prior will which is not re-
voked; .... I think the legacies are substitutionary and
not cumulative."
And on page 177 it is said: "In the case of five legatees the
sums are identical, and in all the other cases the same legatees
take different sums.
"I am of opinion, regarding it as a question of construc-
tion, as the Lord Chancellor did in the case referred to, and
considering that although the testatrix calls the second in-
strument 'my last will,' yet both have been admitted to pro-
bate, you must look at the general scope of both and see if
substitution is intended. I am of opinion that it is, and I
will make a declaration to that effect."
In the case of Jackson v. Jackson, 2 Cox C. C. 42, Mr.
Justice Buller says : ' ' The first question in this cause is
whether the legacies given by the instrument which has been-
proved in the spiritual court as a testamentary schedule are
cumulative, or whether they operate as destroying the legacies
given by the will — that is, whether the testator had an inten-
184 Coffey's Probate Decisions, Vol. 2.
tion of giving the latter legacies as additions to or substitu-
tions for the former. Now, every part of the testamentary
schedule makes this too clear to admit of a doubt. The tes-
tator begins it by saying 'I make this my last will and tes-
tament'; this therefore is a substitution for a former will,
not a codicil added to it As to the pecuniary legacies
themselves, it is equally clear, they were not meant as double ;
the same sums are given to many of the legatees, though not
so to all. If the legacy to Ann had stood alone, there might
be some weight in the argument. She took by the first in-
strument 500£ and by the second 100£, and if there had been
nothing in the second to explain the testator's intent [under-
scoring ours] her legacy must have been taken as cumula-
tive; .... I think, therefore, upon the whole that it is ap-
parent he did not mean to give cumulative legacies, but to
substitute the latter for the former The legacies,
therefore, arise on the second instrument, but came in under
the charge made on the land b}^ the first in favour of legatees
in general."
It is to be observed that in nearly all cases the third rule of
construction hereinbefore set forth is applied only where the
second bequest to the same person and of equal or unequal
amounts is provided for in a codicil which is attached or
added to the testament. A testamentary instrument, com-
plete in itself though not in terms revoking a prior testa-
mentary paper, and which with the latter is admitted to
probate as one will, according to all the cases, seems to show
conclusively the testator's intention. Although both testa-
ments operate, they do so merely because the latter does not in
express terms revoke the former.
A codicil is defined to be "A supplement to a will or an ad-
dition made by the testator, annexed to and to be taken as
part of, a testament ; being for its explanation, or alteration,
or to make some addition to, or else some subtraction from,
the former dispositions of the testator.
"A clause added to a will after its execution, the purpose
of which usually is to alter, enlarge or restrain the provisions
of the will, or to explain, confirm and publish it": Anderson's
Law Dictionary.
Estate of Jones. 185
An examination of Mr. Jones' wills shows that a complete
disposition of his entire propert3' is made by each. Each con-
tains a residuary clause, and, but for the provisions of sec-
tion 1296 of the Civil Code, which declares that "a prior will
is not revoked by a subsequent will, unless the latter contains
an express revocation, or provisions wholly inconsistent with
the terms of the former will ;....," the last testamentary
instrument executed by Mr. Jones, unquestionably, under the
decisions, would have been admitted to probate as his last will.
The second instrument did not expressly revoke the former;
it is not a codicil but, as has been observed, is a will complete
in itself, ending with the words ' ' this is my last will. ' ' These
words indicate the testator's intention, namely, that the
second instrument, so far as the double legacies are concerned,
should be a substitution for the first. It follows, therefore,
that the bequests to S. L. Abbot the third, W. Brooks Jones
and T. Skelton Jones under the latter instrument are in sub-
stitution for those contained in the former.
Second: Are the charities entitled to one-third of the es-
tate wherever the same may be situate, and if so, is that one-
third payable out of California assets ?
Section 1313 of the Civil Code treats of the restrictions on
the power of devise to charitable uses. It declares that
". . . .no such devises or bequests shall collectively exceed
one-third of the estate of the testator having legal heirs "
The "estate" here meant must unquestionably mean the "es-
tate" in California. It cannot be conceived that the legisla-
ture of this state would attempt to do so vain a thing as to
regulate the disposition of property not within its jurisdic-
tion ; and I do not see how it can otherwise than follow as a
corollary from a reading of the section last referred to that
no such contention can be successfully maintained.
If it be true, then, that the legislature has dealt solely with
"estates" in California, it is clear that if the property out
of the jurisdiction is at all taken into account to determine
what shall be the third to the charities, that more than one-
third of the distributable assets in California will be distrib-
uted to them, and that such distribution is contrary to sec-
tion 1313, supra.
186 Coffey's Probate Decisions, Vol. 2.
To illustrate: Say the value of the property in California
subject to distribution is $100,000. Of this amount the chari-
ties will be entitled to $33, 333V;.. And assuming; that the real
property in Washincfton, D. C, and Virginia will aggregate
in value $10,000. If the latter sum be added to the value of
the California property, it will amount to $110,000, of which
the one-third to charity is $36,333%. If, therefore, the latter
sum be distributed to the charities, they will receive $3,333%
in excess of what the law declares they are entitled to.
Counsel for the charities, in support of their contention,
have cited Carter v. Board of Education, 23 N. Y. Supp. 95,
68 Hun, 435 ; Kerr v. Dougherty, 79 N. Y. 327, and Jenkins
V. Trust Company, 53 N. J. Eq. 194, 32 Atl. 208. These au-
thorities, however, are not in point.
It is held in the Estate of Hinckley, 58 Cal. 516, 517. that
"The valuation of the inventory is evidently not intended
to be conclusive for any purpose. The appraisers made a
preliminary estimate for the information of the court; and
as property not included in the original inventory is discov-
ered, it is made the duty of the executor or administrator to
cause the value of such property also to be estimated by the
appraisers : Code Civ. Proc, sees. 1445, 1451
"Yet it must be assumed that section 1313 of the Civil Code
was enacted in view of the provisions of the Code of Civil
Procedure which establish the mode of conducting probate
ca^es, since such provisions and those of the Civil Code relat-
ing to wills constitute together the statutory scheme for the
settlement of the estates of deceased persons. As we have
seen, the testator had the right to donate to charitable uses
one-third of that which he had power to devise and bequeath.
The residuum became fixed, under the Code of Civil Proce-
dure, only when the allowed claims against the estate and costs
of administration were determined and the residuum there-
fore, ready for distribution ; that is to say, the total value
of the distributable estate — the estate one-third of which may
be devoted to charity — is ascertainable by aggregating the
values of all the assets, real and personal, distributed, as of
the date or dates of distribution."
In Re Pearsons, 98 Cal. 611, 33 Pac. 451, the court say:
"The one-third of the estate which may be given to charitable
Estate op Jones. 187
uses is one-third of the distributaljle assets ; and a sale and
conversion of the property into money, when the devise is
not specific, is a convenient, if not a necessary, mode of as-
certaining the amount of the estate for the purpose of deter-
mining the quantity thereof to which the charitable benefi-
ciaries are entitled. Until a sale it cannot be determined what
is the amount of the estate": See, also. Estate of Gibson, 1
Cof . Pro. Dec. 9 ; Estate of Behrman, Cof. Pro. Dec.
I am constrained to hold that the charities are entitled to
one-third of the distributable assets of the estate, and that in
determining what that one-third is, property situate out of
the jurisdiction of this court cannot be taken into account.
Third . Are the residuary devisees and legatees under the
prior will entitled to all that part of the residue which the
residuary clause of the subsequent will fails to dispose of?
There is no question about the fact that after the charities
receive the one-third to which they are entitled by law (Civ.
Code, sec. 1313), there will still remain a considerable
residuum partly increased by the lapsed legacy to one of the
testator's nephews — Robert Brodie Jones.
The question therefore is, Are the two residuary clauses so
absolutely irreconcilable as that the former entirel.y fails? If
they are, partial intestacy is the result, and the heirs or next
of kin of the testator take in preference to his sisters who are
the residuary legatees under the prior will.
As we have heretofore observed, the testamentary instru-
ments were together admitted to probate as one will, and are
therefore to be taken and construed together as one instru-
ment (Civ. Code, sec. 1320), and the rule of construction is
substantially the same where there are several wills to be har-
monized, as w^here there are several clauses in the same will
and codicils : 1 Woerner on American Law of Administration,
2d ed., sec. 51, p. 102.
Section 1321, Civil Code, provides that 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 wholly irreconcilable, the latter must prevail.
And section 1296, Civil Code, provides that the prior will
remains effectual so far as consistent with the provisions of
the subsequent will.
188 Coffey's Probate Decisions, Vol. 2.
The prior will contains this residuary clause : ' ' All the rest
and residue of my estate of every kind and nature and where-
soever situate I give and bequeath to my two sisters Mary
Jones and Virginia Byrd Jones, now residing in Washington,
D. C, or to the survivor of them."
The subsequent will contains the following residuary clause :
"I leave the remainder of my estate to Grace Church P. E. S.
F., to the Protestant Episcopal Old Ladies' Home, Maria Kip
Orphanage & Bishop Armitage Orphanage, one-half of said
residue to the first named & the balance in equal shares to
the three Institutions last named."
Now, in "these circumstances, in what respect is the resid-
uary clause of the prior will — which I shall, for convenience,
hereafter call the first clause — wholly irreconcilable with the
residuary clause of the subsequent will — which I shall like-
wise for convenience hereafter call the second clause?
It is not contended that the "second clause" is inoperative
so as to deprive the charities of their one-third, but counsel
for the sisters maintain that as to that part which the chari-
ties cannot take under the ' ' second clause, " the " first clause ' '
is wholly consistent and reconcilable, for it can only operate
in the event that the second clause partially fails. It might
well be likened to a case where there are two wills, the first
containing a residuary clause and the second none. Or where
the latter clause in express terms only disposes of part of
the residue. In neither case would there be an inconsistency
and no less an irreconcilability. In the former case the re-
siduary clause is necessarily operative, and in the second
both will stand. The testator here impliedly bequeathed and
devised to charity one-third and the remainder to his sisters.
Section 1313, Civil Code, provides, among other things,
that no devises or bequests to charities shall collectively ex-
ceed one-third of the estate of the testator leaving legal heirs,
and in such case a pro rata deduction from such devises or
bequests shall be made so as to reduce the aggregate thereof
to one-third of such estate ; and all such dispositions of prop-
erty made contrary hereto shall be void and go to the residu-
ary legatee or devisee, next of kin or heirs according to law.
In this case there is an excess of one-third to charities and
there are residuary legatees and devisees to take that excess,
Estate of Jones. 189
and they are certainly entitled to it preferably to the next of
kin or heirs of the testator. The very fact of making 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.
It must be conceded that the testator knew the law at the
times when the testamentars'- instruments were respectively
executed by him, and it must follow that he was conscious of
the restrictions placed by law on his bounty to charity. He
likewise must have had in mind that his estate might possi-
bly, at the time of his death, be larger than he contemplated,
for he purposely left in existence a will (the first) by which,
he knew, any surplus would be safely disposed of to his sis-
ters who, as appears from both wills, were the main objects
of his bounty. It seems to me that the testator's intention is
perfectly clear, and that the clauses are absolutely consistent
and reconcilable. A comparison of the wills unquestionably
permits the court to transpose the order of these residuary
bequests to have them read as follows: To (the aforemen-
tioned charities) I give, devise and bequeath one-third of the
rest, residue and remainder of my estate, the balance I give,
devise and bequeath to my sisters Mary Jones and Virginia
Byrd Jones, or to the survivor of them.
It has been held that where it appears from the entire
language of a will that the testator's intention would be
rendered more clear by transposing the order of the be-
quests, the court will construe the bequests as though the
testator had written them in the transposed order: Merkel's
Appeal, 109 Pa. 235.
"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 w^ords, 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": Estate of Maxwell, 1 Cof. Pro. Dec.
145.
190 Coffey's Probate Decisions, Vol. 2.
A failure to give to these wills the interpretation contended
for wonld result in partial intestacy. This is not favorod in
law.
Our own code provides that of two modes of interpreting:
a will, that is to be preferred which will prevent a total in-
testacy : Civ. Code, sec. 1326. And as was said in the opinion
by Mr. Justice Andrews, in the case of Vernon v. Vernon, 53
N. Y. 361, "The law prefers a construction of a will which
will prevent a partial intestacy to one which will permit
such result." See. also, Toland v. Toland, 123 Cal. 143, 55
Pac. 681 ; Estate of Fair, 132 Cal. 566, 84 Am. St. Rep. 70,
60 Pac. 442, 64 Pac. 1000.
I am of the opinion that the sisters of the testator take
under the residuary clause of the first will the residuum of
the astate which is bequeathed to the charities by the residu-
ary clause of the latter will, l)ut which they are unable to
take by virtue of the restrictions imposed by section 1313 of
the Civil Code.
Let a decree be entered, therefore, in accordance with this
opinion.
Although, as a General Rule, the Law Regards Gifts to Charities
with favor, the legislatures of some states have, for the protection
of heirs, found it expedient to enact a species of mortmain statutes
which provide that a will making charitable gifts must be executed
at least thirty days before the death of the testator, and that it
shall not bestow more than one-third of his estate upon charities.
The statute of California on this subject does not govern a will exe-
cuted in that state devising real property in another commonwealth,
since the transmission of real estate is governed by the law of its
situs. Moreover, this statute does not apply to gifts other than those
by last will and testament, such as those by deed. A codicil executed
within thirty days prior to the death of the testator, but relating
wholly to other matters than charitable bequests, does not invalidate
gifts to cliarities in the original will.
A charitable gift in excess of one-third of the estate of the testator
does not invalidate a power of sale contained in the will, nor does it
constitute ground for a revocation of the probate of the will. The
only consequence, as a rule, which follows such excessive gifts is a
pro rata reduction of the amounts thereof, so that in their aggregate
they will not exceed one-third of the estate. And this one-third has
reference to the one-third of the estate which remains after the pay-
ment of the debts of the decedent and the charges of administration.
On appeal to the supreme court, if the inventory is not set forth in
Estate of Hale. 191
the record, and there is no bill of exceptions or data from which
the amount of the estate can be determined, it will be presumed, in
support of the decree below, that the residue distributed to charities
was less than one-third of the distributable portion of the estate: 1
Ross on Probate Law and Practice, 17.
In the Matter of the Estate of JOSEPH P. HALE, De-
ceased.
[No. 13,439; decided March 22, 1906.]
Conimunity Property. — The Declaration of a Testator in His Will
that the property devised is his separate estate cannot be consid-
ered as evidence that it is such.
Community Property — Products of Foreign Real Estate. — Where a
married man picks orchilla in Mexico from land owned by himself
and his copartners and ships the product to market in England, and
the returns are remitted to him at a point over one thousand miles
from the place of production, these products together with real estate
purchased with their proceeds in California are community property.
Community Property — Profits of Foreign Land. — The rule that prop-
erty purchased with the rents and profits of land which is the separate
estate of the husband becomes likewise his separate property is re-
stricted to cases where the purchase money is the proceeds of land
used in the ordinary manner, and does not extend to cases where the
products are shipped to a distant country and used in a business
venture.
Community Property — Conflict of Laws. — The rents and profits of
Mexican land held by a resident of California are subject to the
laws of Mexico, and by those laws they are community property.
Real Estate — Conflict of Laws. — Real estate in Lower California is
subject to the Mexican law, even if it belongs to foreigners.
Community Property — Conflict of Laws. — Lands Purchased in a
community property state with funds derived from real property ac-
quired in a common-law state become the separate property of the
husband, even if the funds were acquired in the other state under
circumstances which would have made the land from which it was
derived community property.
Community Property. — Money Borrowed by a Married Man and
not secured by his separate property is community property.
Wills — Intention of Testator. — It Makes no Difi'erence What Lan-
guage is Used in a will, if the testator's intention can be determined
it will be sacredly enforced.
192 Coffey's Probate Decisions, Vol. 2.
Wills. — The Intention of a Testator must be Ascertained from the
words of the will itself; it is not what the testator meant, but what
his words mean. The intention to be sought is not what may have
existed in his mind, but what is expressed in the language of the
instrument itself.
Wills. — The Word "Leave" in a Will, as applied to the subject
matter, prima facie means a disposition by will.
Wills — Injustice of this Disposition. — The intention of a testator,
if lawful, must be given effect, however unjust it may appear to the
court.
Wills. — A "Limitation" is Particularly Defined to be a qualifica-
tion of an estate given; "words of limitation are words which mark
out the estate to be taken by the grantee."
Wills — Cutting Down Fee. — Words of Command Addressed by a
Testator to devisees are as ineffectual to reduce a fee to an estate
for life as precatory or explanatory words; such words are not
enough to establish an intention that is not gathered from the opera-
tive words upon the face of the will.
Wills — Necessity for Operative Words. — A devise cannot be created
without the use of operative words.
Annuities — Failure of the Fund. — Where annuities are payable from
the rents of a building, and the building is sold during the course of
administration, the rights of the annuitants are measured by the rule
that when the funds out of which annuities are payable fail, resort
may be had to the general assets as in the case of a general legacy.
Alexander D. Keyes, for petitioners.
Sullivan & Sullivan, and Theodore J. Roche, for respondent.
COFFEY, J. Josephine C. H. Boyle, the daughter of
the deceased, and one of the principal legatees and devisees
in his will, and Anais Hale, his surviving wife, filed herein
a petition for the final distribution of the above entitled es-
tate. It is claimed in the prayer of the petition, upon the
facts therein set forth, that the entire estate should be dis-
tributed one-half to the daughter and the other half to the
surviving wife.
To this petition an answer was filed on behalf of the re-
spondent, Ann Feeney Wright, which, it was subsequently
agreed, should stand as the answer for the other respondents,
who appeared upon the hearing of the petition. The appli-
cation for final distribution presents two leading questions,
Estate of Hale. 193
(1) the widow's contention that all of the property is com-
munity property, and that one-half thereof should be dis-
tributed to her; and (2) the daughter's contention that on a
proper construction of the will and after a proper marshaling
of the assets all of the residue of the estate should be dis-
tributed to her.
In the will of the decedent there is this clause : " I hereby
declare and make known that all property owned and pos-
sessed by me at the date of this will and wherever situated
is property or its income and revenue or property purchased
by me with its income and revenue that I owned and possessed
at the time of my marriage with my present wife — and is my
separate estate."
This declaration has no legal force or effect; is not neces-
sarily a statement of fact; it is merely at most the opinion
of the testator; is not binding upon the widow; in short, is
not to be considered to prove that the property was separate :
Rowe V. Hibernia Savings etc. Soc, 134 Cal. 407, 66 Pae. 569.
Irrespective of this testamentary declaration and upon the
evidence, in what way did the testator acquire the property
of which he died seised? He married Anais Hale in 1880,
and it is admitted that as he had previously acquired the
Fresno property and the San Francisco tide lands, these
items were separate estate.
On the part of the petitioner it is claimed that the re-
mainder of the estate is community property, having been
acquired subsequent to decedent's marriage with his surviv-
ing wife.
This property now on hand consists, first, of a six-tenths
interest in the orchilla which formerly belonged to the Flores
Hale Company, appraised at $3,283.35.
Second, the unsold portions of the Santa Clara ranch con-
sisting of Lots A, B, and 1 of the Hale Eanch Subdivision,
and unsold portions of the Margarita Tract, consisting of all
the lots in that tract except lots 1 and 16, all of the Santa
Clara county property being appraised at $15,984.95.
Third, the balance of the cash on hand, being a portion
of the proceeds of the sale of the lots and of the supreme
court building, as per supplemental account, $126,535.19.
Prob. Dec, Vol. 11—13
194 Coffey's Probate Decisions, Vol. 2.
The decedent and Anais Hale were married July 20, 1880.
The Santa Clara i)r()perty which is still unsold was acquired
June 12, 1886. The lot on which the supreme court build-
ing stands was purchased April 5, 1882, and the Flores Hale
Company, from which the unsold orchilla was derived, was
organized June 9, 1883.
It will be seen that the principal asset, about which there
is contention, is the supreme court building or its proceeds.
The claim that all of this property having been acquired
during coverture is presumptively community property is
contested by respondents, who assert that they have over-
come this presumption by showing that it was the proceeds
of the rents, issues and profits of property owned by decedent
prior to marriage. Respondents contend that from the facts
proved it is clear that all of the estate of decedent was at
the time of his death separate property, and an enormous
amount of erudition is expended to establish this proposition.
It is insisted that it is in proof that for years prior to the
date of his marriage the decedent was in the exclusive posses-
sion of the same tract of land which was subsequently con-
veyed to the Flores Hale Company, claiming at all times to
be its owner and holding himself out as such to the entire
world.
But the evidence on this point is scarcely satisfactory. It
does not appear to the court that he had a title to this ex-
tensive tract prior to marriage. He may have claimed to
own the land and he had possession in a manner. He had
men roaming and camping about gathering orchilla, but the
only evidence of any title, exclusive of the partnership agree-
ment and of the Pacheco grant, is in the statement of James
Hale and Byrne that deceased was in possession under a claim
of title previously conferred upon him by the government of
Mexico, pursuant to contracts entered into between him and
that republic. The tract was five million acres in extent.
It is plain that such an immense area could not easily be
covered by the campers employed by decedent. This claim
of title, however, can hardly be sustained by the documentary
evidence introduced. It certainly is not established by this
species of evidence that decedent at the time of his mar-
riage was the owner in fee of the entire tract of land upon
Estate of Hale. 195
which the business in which he was engaged was carried on.
A long and learned discussion is indulged in by respondents
to overcome the effect of the Pacheco grant of 1883, but it
is more interesting than convincing, and need not here be
traversed. It is enough to say that decedent was the real
party to this grant, James Hale being a mere agent, as is
shown by the evidence.
The decedent went to Lower California some time before
1862. He hired gangs of men and sent them out through the
country for the purpose of having them gather orchilla. which
is a moss of natural growth reproduced without cultivation
in two or three years. The men employed by the decedent
were usually divided into camps and the number employed at
one time reached as high as fifteen hundred to two thousand
men. There were never more than two or three camps in
actual operation. The camps moved from place to place af-
ter gathering the orchilla in question and sent it to Magda-
lena bay ; there it was pressed into bales and shipped to Liver-
pool and the proceeds of the §ales were remitted to the de-
ceased.
The orchilla was never sold in Lower California, at the
place of production, and the parties who had charge of the
camps never knew anyone else in the occupancy of the land
over which their operations extended, and understood the
decedent to claim that he owned the land in ciuestion.
There is no direct evidence of the profits of this business,
but there is direct evidence that the business was very exten-
sive, and that the credits during the years 1876 to 1882 both
inclusive, exceeded $1,000,000. At the close of the different
years there were on hand the following balances :
1876 $19,895.00
1877 20,423.19
1878 7,542.09
1879 44,035.06
1880 6,194.94
1881 28,115.76
1882 58,316.00
There is nothing in the evidence to showthat these balances
were profit, and in point of fact the balances of each year
196 Coffey's Probate Decisions, Vol. 2.
were carried into the accounts for the next year, so that there
was no net balance for the entire period covered by the tran-
script put in evidence, which period ended January 31, 1883.
If the evidence had stopped here it is possible that the
court might be justified in holding that the lands upon which
the operations of the decedent Avere carried on, where the
orchilla was picked and where no adverse occupants were
found, belonged to the decedent; but the documentary evi-
dence which the court has to consider, and which bears the
admitted signature of the decedent, shows that only a small
portion of these lands belonged to him.
On the eleventh day of June, 1880, the decedent entered
into a copartnership agreement with Bartning Bros, and Gi-
bert. Each of the partners furnished or brought in certain
lands and personal property. The decedent's share of the
partnership funds were inventoried at $43,295, and consisted
of $14,000 worth of laud "with title," of about $8,000 worth
of land "adjudged and claimed"; total $22,000 worth of land
and about $21,000. worth of personal property and improve-
ments on land. Bartning Bros, furnished about the same
amount of property, consisting of lands with full title, "lands
in course of obtaining title," "lands rented," boats and
other personal property. Felix Gibert brought in about
$13,000 worth of property, consisting nearly entirely of lands
with full title and lands "in course of adjudication." The
partnership agreement was signed by J. P. Hale on June
11, 1880. The inventory was approved by the attorney in
fact of Gibert on July 20, 1880. The partnership was to
last for five years.
The agreement recited that by a previous agreement dated
the 11th of March, 1880, J. P. Hale and Bartning Bros, had
entered into an agreement with Felix Gibert at La Paz, Lower
California, under the firm name of Hale & Company, for the
purpose of operating at Magdalena bay. Lower California.
That the partners had reached the conclusion that it would
be better to dissolve this partnership and to form another
special copartnership "directed solely by J. P. Hale and
under his name: to realize said stock, gather, purchase and
sell orchilla at Magdalena bay, Lower California, ....
under the following conditions:
Estate of Hale. 197
< < '
First. The capital of the association is formed with the
property specified in the inventory
"Second. Mr. J. P. Hale will continue the trade and
business at Magdalena bay as he has done up to the present
time, using the capital as per inventory and the cash that
may be necessary which shall be provided by him and by
Messr.". Bartning Bros. Co. in equal shares.
"Third. Out of the net profits that may result . . . .
Messrs. Bartning Bros, will receive forty-two per cent ; Mr.
Felix Gibert sixteen per cent, the remainder being for Mr.
Hale.
"Fourth. ]\Ir. Hale will give the contracting parties
monthly a brief statement of the operations and accounts
and a general balance statement every year.
"Fifth. During the existence of this partnership none of
the contracting parties shall acquire for himself any orchilla
lands in Lower California, nor grant any person whatsoever
his interest therein.
"Sixth. The stock of Orchilla — at Magdalena Bay, will
be shipped by Mr. Hale, to be sold for account of its re-
spective owners.
"Seventh. Mr. Hale will endeavor to obtain advances in
Europe on the most possible advantageous terms
"Ninth. This agreement shall last five years.
"Nothing obtained in this agreement prevents Mr. Hale
from applying himself to other business and enjoying indi-
vidually and exclusively the products thereof, excepting the
gathering, purchase or sale of orchilla. ' '
"In case of the death of any of the contracting parties,
their heirs or executors shall continue this agreement for
one year. Should Mr. Hale die, then Messrs. Bartning Bros,
w^ill be the directors, but Santiago Hale will continue as ad-
ministrator during the time the partnership shall exist."
There are two things that are plain from this agreement.
First, that Mr. Hale did not o'uoi the lands from which
the orchilla was gathered.
Second, that he was not operating on his own account, but
on the account of a copartnership which divided with him the
profits of the venture.
198 Coffey's Probate Decisions, Vol. 2.
The former of these points would require no corroboration,
althoufrh James Hale himself testified that among the lands
on which the orchilla operations were carried on were the
following: San Carlos, Bajos de Sta Domingo, San Juanico,
Ojo de Liebre, San Juan, San Francisco, Medano de las
Jiquimas, Santa Rosa, Salinas, Mesquital, San Pedro and
San Pablo. All of these lands were brought into the co-
partnership by Bartning Bros. & Co.
Independently of the evidence on the subject of lands and
business in Lower California, the only evidence of any prop-
erty owned by the decedent at the time of his marriage con-
sists of the evidence that he owned the following real estate :
First, the Oak street property, which was improved with a
cottage; second, the lot on Market street, near City Hall av-
enue ; third, the partnership lands ; fourth, the San Francisco
tide lands. There was no evidence as to the value of any of
these lands or as to the income if any which they produced.
In regard to the cash on hand at the time of the marriage,
the only evidence before the court consists first of the bank
book of the Donohoe-Kelly Banking Company. This book
was not balanced at the time of the marriage and therefore
does not show that the decedent had at that time any balance
M'hatsoever. It was balanced, however, some time between
April 29 and June 11, 1880, and shows no balance on hand.
The next balance was struck August 3, 1880, when the de-
cedent had on hand $496.65. Between these two periods he
deposited $11,162 and drew out $10,665.15. As above stated,
there is no evidence that in the Donohoe-Kelly Bank at the
time of the decedent's marriage there was any cash to his
credit.
So far as the orchilla business account is concerned it
showed on July 20, 1880, a credit balance of $12,594.18. The
only other evidence which is material on this subject is that
the decedent as early as 1876 and as late as 1886 was con-
tinuously borrowing money on promissory notes from the
Donohoe-Kelly Bank.
It also appears from the testimony of James Hale that the
contract between James Hale and General Pacheco, acting
on behalf of the Mexican government, was made by James
Hale solely for the benefit of his brother Joseph P. Hale.
Estate of Hale. 199
The terms of this contract are material for the purpose of
showing that the decedent was not solely engaged in the busi-
ness of gathering, shipping and selling orchilla.
The contract between General Pacheco, acting for the
Mexican government, and J. Conrado Flores, for himself and
on behalf of James C. Hale & Co., was made March 31, 1883,
and provided as follows :
The Flores Hale & Co. (Flores and James C. Hale, who
was acting for Joseph P. Hale) w-ere authorized to "effec-
tuate the measurement and demarcation of the public lands
existing in the territory of Lower California between the
parallel of 231/2 and 29 degrees latitude north in a zone of
six leagues width counted from the mark of the full tide
toward the interior In consideration of the expenses
caused by the aforesaid acts Flores Hale & Co. shall receive
as their property one-third of such lands as. they may survey.
"The government conveys to Flores, Hale & Company the
remaining two-thirds of the lands they may survey to be ex-
clusively applied to colonization purposes at the price fixed
by the "tariff."
The Pacheco contract, therefore, was a contract by which
the government agreed to convey lands in consideration that
the grantees would survey certain public lands and colonize
others. In a certain sense the business undertaken by the
Flores Hale & Company (in which the decedent was of course
interested) might be termed a part of the orchilla business,
because doubtless the lands in question were lands which pro-
duced orchilla, but in a strict sense the business in question
was the business of surveying and colonizing lands for hire,
and the profits of any such venture should certainly not be
classed with the rents and profits received from the ordinary
use and occupation of land.
To sum up, therefore, the evidence shows the following
state of facts :
First. The decedent was not exclusively engaged in the
business of picking and selling orchilla.
Second. The orchilla which he did pick did not come from
his own land, but partly from land that belonged to him and
partly from the land that belonged to his partners.
200 Coffey's Probate Decisions, Vol, 2.
Third. The orchilla which was picked was not sold on
the land in the usual manner in which the products of land
are sold, but was shipped a distance, say, of twelve thousand
miles, and the money was remitted back to another point
approximately five thousand five hundred miles from the place
of sale and over one thousand miles from the place of pro-
duction.
The authorities which declare that property purchased with
the rents, issues and profits of land which is the separate
property of the husband becomes likewise his separate prop-
erty, restrict the rule to cases in which the purchase money
is the proceeds of the land used in the ordinary manner, but
no case has gone so far as to hold that the products of land
when shipped to a distant country and used in a business
venture shall be treated as the "rents, issues and profits" of
land.
Fourth. The funds were not traced from the alleged
separate property of the decedent into the alleged investments.
Fifth. The land which was alleged to be the separate prop-
erty of the decedent was situated in the Republic of Mexico
and was subject to its laws. The rents, issues and profits of
land are in effect the land. Hence the rents, issues and profits
of this IMexican land were subject to its laws, and by those
laws they were community property.
Article 14 of the Civil Code of the federal district, terri-
tory of Lower California, provides, "As to real estate situated
in this state it shall be subject to the Mexican law even if it
belongs to foreigners."
Article 2141 provides as follows: "The following is com-
munity property : Subd. 7. Fruits, accessions, rents, and in-
terests received or due during coverture arising from the
community or separate property of either consort."
The law of the situs of real estate governs real property.
This is elementary; and it has always been held that lands
purchased in a community property state with funds derived
from real property acquired in a common-law state became
the separate property of the husband, even if the funds were
acciuired in the other state in circumstances which would have
made the land from which it was derived community property
of the spouses: Estate of Burrough.s, 136 Cal. 116, 68 Pac.
Estate of Hale. 201
488 (per Temple, J.); Tanner v. Robert, 5 Mart. (La.),
N. S., 255; Nott V. Nott, 111 La. Ann. 1029, 36 South. 109;
Clark V. Thayer (Tex.), 71 S. W. 1050.
These cases present the converse of the case at bar. There
the money which bought the land in Louisiana and Texas
would have been community property if the entire transaction
had taken place in Louisiana and Texas, but as it came into
Louisiana and Texas as separate property, the investments
made with it were held to be of the same character as the
money was in the foreign state.
It having been determined that one-half of the cash on
hand, one-half of the unsold orchilla and one-half of the
Santa Clara county lands must go to the widow as her share
of the community property, the next question that presents
itself is. To whom shall the residue be distributed?
This residue consists of one-half of the orchilla. . . .$ 1.641.67
One-half of the Santa Clara county lands 7,997.47
One-half of the cash on hand 63,267.60
The Fresno land, worth 1,000.00
The San Francisco tide lands, worth 402.00
Total estate after community interest of widow is
taken $74,308.74
From the foregoing it will be seen that the court has
adopted the view of the petitioners and discarded the deduc-
tion of the respondents that the entire estate left by the dece-
dent, under the law and the facts, constituted his separate
property and estate.
Petitioners in their reply brief advert to the fact that
there are two considerations of considerable importance which
are not referred to in the respondents' brief: First, the evi-
dence shows that after the marriage of the decedent to Anais
Hale, and for a long period of time, he was constantly bor-
rowing large sums of money without security from the Dono-
hoe-Kelly Banking Company. Money borrowed on the per-
sonal security of a married man not being "property owned
.... before marriage," and not being "property acquired
by gift, devise, becpiest or descent," nor the rents, issues or
profits of either, is community property : Civ. Code, 163, 164,
202 Coffey's Probate Decisions, Vol. 2.
Money borrowed by a married man and not secured by his
separate property is eommnnity property : Perry v. Ross,
104 Cal. 15, 43 Am. St. Rep. 66, 37 Pac. 757 ; Althof v. Con-
heim, 38 Cal. 230, 99 Am. Dec. 363 ; Schuyler v. Broughton,
70 Cal. 282, 11 Pac. 719. The evidence, therefore, shows
that large sums of money came to the decedent from sources
other than his orchilla business. There is nothing to negative
a presumption that these sums might have purchased some
of the property in question. Secondly, respondents' argu-
ment to the effect that all of the land covered by the Pacheco
grant belonged to him before he was married is negatived by
the exhibit entitled, "List of Deeds of Lands in Lower Cali-
fornia in Box Marked J. P. Hale, Spanish Deeds." This
exhibit is entirely in the handwriting of the decedent, and
gives a list of a large number of grants, contracts and other
papers, giving in each instance the date of the grant and the
number of hectaras covered by the grant. The two main
grants were made in 1884. There were several made in 1877
and 1878, and a great many made in the early part of 1882.
It is a fair presumption that this list gives a brief history of
the titles to the land which passed to the Flores Hale & Com-
pany, and shows that some of these lands were acquired be-
fore marriage, and by far the greater number were acquired
long afterward.
The next point is as to the construction of the will. The
question as stated by respondent is: Did the deceased, in his
will, make a valid devise of the remaining one-half of the
Supreme Court property to Margaret Ryan and certain of
his other brothers and sisters named near the end of para-
graph 1 of his will, contingent upon failure of issue in his
daughter? In other words, did not the deceased devise to
his daughter, in fee simple, but one-half of the land, and
qualify the remaining one-half by making an unqualified or
fee simple title in her, dependent upon the fact that she die
leaving issue?
The position assumed by respondent is that the will clearly
indicates that it was the intention of the testator, when he
made his will, that his daughter, Josephine, should only have
a fee simple title to one-half of the property upon the death
of his wife, and that as to the remaining one-half, her title
Estate op Hale. 203
should be qualified by having issue; and that upon failure of
such issue, this one-half should, by virtue of the will of the
deceased itself, vest in, and was by him devised to, the broth-
ers and sisters above referred to.
The decision of the court, so far as it relates to this ques-
tion, must depend upon the interpretation which it shall
place upon the â– will.
Respondent claims that the language of the will is clear,
direct and unambiguous, creating a remainder in the un-
divided half of the Supreme Court building in favor of cer-
tain relatives ; and sections of the Civil Code and many pages
of extracts from decisions are quoted to support this thesis.
The words of the will which are claimed to create this re-
mainder are the following: "My said daughter Josephine to
own and hold said house or building and the land upon which
it is situated .... without the power to sell or mortgage
the same during her natural life, but with power to dispose
of the same as she may desire by her last will in case she has
any issue then living. But in the event of her having no
issue at the time of her death as aforesaid, then she shall
only will one-half of the said building and lot, leaving the
other one-half to be divided between my sisters, my relative,
and mj^ aunt."
Respondent asks, What was the intention of the deceased
concerning this property? And answer that it was, first,
that his daughter, Josephine, should have one-half of the net
rents of the Supreme Court building, during the life of his
wife, and until the annuities to be paid out of the other half
had been fully satisfied; second, that if his daughter, Jose-
phine, had issue living at the time of her death, she was to
have the entire property, with the right to will it to whom-
soever she desired, which under the law of this state, would
be a title in fee simple; third, if, however, his daughter
failed to have issue, then that the persons referred to, being
some of his brothers and sistere, and an aunt, or her daughter,
should have the remaining one-half of her property.
In the paragraph from which the quotation is made testator
created the annuities, and made them a charge upon that
half of the rents and profits not given to his daughter.
204 Coffey's Probate Decisions, Vol. 2.
Eespondents call attention to the fact that all of the lan-
guage used by the deceased by which he attempts to effect a
devise of the property is contained in but one paragraph, and
remark that there is no separation whatever between any part
of the language, except in the punctuation of sentences.
Therefore, they sa}-, the court, in determining the intention
of the testator, has to deal with but one continuous paragraph
of this will, and it must also be borne in mind that the will,
which is to be construed by the court, was not compiled by
a man learned in the law or even by one who had a very
large vocabulary, or had the power of choosing apt words and
phrases to express his ideas and intentions. It was written
by the deceased himself, who, though evidently having had
a varied, as well as extensive, experience in business matters,
did not possess any great amount of literary attainment. It
may be true that if he had consulted a lawyer in the execu-
tion of this instrument, the language used in expressing his
intention would have been different from that in which it is
couched. But as the decisions hold, it makes no difference
what language is used by the deceased in his will, if his in-
tention can be determined, it Avill be sacredly enforced.
It must be ascertained, however, from the words of the
will itself. It is a familiar phrase formulated by our supreme
court that it is not what the testator meant, but what his
words mean. The intention to be sought for is not that which
may have existed in his mind, but that which is expressed
in the language of the instrument itself.
It is claimed by respondents that the words in the last
paragraph of the clause quoted do not admit the construction
placed upon them by petitioner, who says that by them testa-
tor does not give any interest in the land to the relatives in-
dicated, but directs the daughter to leave it to be divided among
them, and respondent asserts that it is not absolutely impos-
sible to so construe the will without violating its letter and
spirit.
Upon this point respondents construct an elaborate argu-
ment to show that the word ''leave" or "leaving" cannot be
construed to mean that the property should pass by the laws
of succession, for the use of this word in instruments has been
held by courts to impress upon them the character of wills.
Estate of Hale. 205
In the case of Doe v. Thorley, 10 East, 438, the deceased
bequeathed to his Avife "all his personal estate during her
natural life and also at her disposal afterward to leave it to
whomsoever she pleased." In holding that this merelj^ gave
her the right to will it, and not deed it, Lord Ellenborough,
C. J., used the following language : "In common understanding
the word 'leave' must be taken to applj^ to that sense of it in
which a person making his will would naturally use it, namely,
by a testamentary disposition. But I found my opinion on
the word 'leave,' which shows that the testator meant the
power to be executed by the will."
Mr. Justice Bailey, in a concurring opinion said: "The
word 'leave' as applied to the subject matter prima facie
means a disposition by will." To the same effect, see Allen
v. McFarlaud, 150 111. 455, 37 N. E. 1006; McKonkey's Ap-
peal, 13 Pa. 253 ; I\Iitchell v. Donohoe, 100 Cal. 202, 38 Am.
St. Rep. 279, 34 Pac. 614.
In the case under discussion, respondents contend that it
cannot be construed to mean that the deceased intended his
daughter to will it to his relatives, because, as has already
been stated, in positive and direct language, he deprived her
of that power. In some of the eases cited by respondents,
it was held to be necessary for the court to transpose words,
in order to arrive at the intention of the testator. In others
it was held necessary to supply the omission of words not con-
tained in the will, and in other cases, some of which are not
cited, it was thought necessary for the court to take testimony
showing the circumstances surrounding the execution of the
will; but in this case it is unnecessary to do any of these
things, according to the argument of respondents, who insist
that the intention of the deceased to devise to certain of his
relatives a remainder in one-half of the Supreme Court prop-
erty, contingent upon the failure of issue in Josephine, is as
transparent as though it were expressed in words selected
and phrased by the most eminent lawyer practicing at our
bar. It matters not in what language this intention is indi-
cated. If it can be gathered from the language used, and
the intention is one which is lawful and not prohibited by our
law, then it must be enforced, however unjust it might ap-
pear to the court.
206 Coffey's Probate Decisions, Vol. 2.
In order to present as shortly as possible the matter of
difference between the counsel, the position of petitioner
is that the clause does not impose a limitation, but is simply
a direction to the daughter not to will the land, but to leave
it to the persons in question. In other words, the testator
does not himself give any interest in the land to the relatives,
but directs the daughter to leave it to be divided among them.
This is not a limitation of an estate. The meaning of a
limitation is practically defined to be a qualification of an
estate given. To the same effect are the authorities. It will
suffice to quote Williams on Real Property, pages 210-211,
who says that "words of limitation are words which mark
out the estate to be taken by the grantee."
There are no words in this will which limit or mark out
the estate to be given to Josephine C. H. Boyle. The most
that can be said is that the clause which prohibits her from
disposing of the estate by will and which directs her to leave
it to be divided between the six relatives creates a clear inter-
ference that the testator meant that they should have the
estate in the event that the daughter would die without leav-
ing issue. But this is not enough ; for it is provided in sec-
tion 1322, Civil Code, that "a clear and distinct devise or
bequest cannot be affected .... by any other words not
equally clear and distinct, or by inference or argument from
other parts of the will." This rule is but a codification of
the rule of the common law.
In Boyle v. Boyle, 152 Pa. 115, 34 Am. St. Rep. 629, 25
Atl. 494, the court said: "We held that words of command
addressed by the devisor to the devisee are as ineffectual to
reduce a fee to an estate for life as precatory or explanatory
words. Mere precatory words or words of command or words
of explanation are not enough to establish an intention that
is not to be gathered from a consideration of the operative
words upon the face of the instrument."
The case of Sprankle y. Commonwealth, 2 Walk. (Pa.)
420, is a ease which, in the opinion of petitioner, is remarkably
like the ease at l)ar. The words of the will which created an
interest in the testator's nephew, Peter Sprankle, were the
following: "I give and bequeath to my nephew, Peter Spran-
kle, all of my messuages, lands and tenements whatsoever. I
Estate of Hale. 207
hereby also say that Peter Sprankle is not to sell nor can it be
sold or disposed of for the debts of said Peter Sprankle dur-
ing his lifetime, and after his death if he leaves no heirs, the
aforesaid lands, messuages, and tenements to be willed by him
to some Sprankle name, or if no will be made by him the said
Peter Sprankle the said lands to revert to some of the Spran-
kle famil}'. " It was held that Peter took an estate in fee
simple.
It was therefore apparent petitioner maintains that, sub-
ject to a life estate given to the widow and subject to the
annuities, all the testator's right, title and interest in the
Supreme Court building passed to his daughter Josephine.
The interest that was given was clearly a fee simple interest
In one-half of the building and a fee simple interest in the
remainder after the death of the wife.
The only words which can create any interest in the sisters,
the relative and the aunt are the words "leaving the other
one-half to be divided between my sisters, my relative and
my aunt." These words clearly show that Josephine Boyle
shall will only one-half of the lot of land and Josephine Boyle
shall leave the other half to be divided.
The meaning of the will is plain in this respect. The testa-
tor directed Josephine Boyle to leave the one-half to be di-
vided, and the petitioners assert that ' ' devise cannot be created
by directing another devisee to leave a portion of the prop-
erty to third parties." In other words, a devise cannot be
created without the use of what the supreme court of Califor-
nia calls "operative words."
This principle is established in the two cases of Estate of
Fair, 132 Cal. 530, 84 Am. St. Rep. 70, 60 Pac. 442, 64 Pac.
1000, and Estate of Young, 123 Cal. 337, 55 Pac. 1011.
In the Estate of Fair there was an unmistakable intent on the
death of the children of the decedent the grandchildren should
obtain an interest in the property, and if the children died
without issue, that certain other persons should acquire an
interest in the land. It was just as plain thai Fair meant
his grandchildren to have an interest in his estate as it is in
the case at bar that Joseph P. Hale intended his sisters, his
relative and his aunt to have an interest in the Supreme
Court building. Nevertheless, the supreme court held that
208 Coffey's Probate Decisions, Vol. 2.
because there were no operative words to ereate this interest,
the grandchildren of the decedent were entitled to nothing,
and the court used this language (132 Cal. 530) :
"Appellants indulge in frequent invocations of the rule
that the intention of the testator must prevail, and they seek
here to apply the rule to the point that this will should be
construed as if it directly devised estates in remainder to
the classes named But the rule includes the proposi-
tions that the intention must be found in the will itself ; that
where the language of the instrument is unambiguous and
clear, there is no field for the play of construction ; that
where the testator has clearly expressed one intention, the
court cannot impute to him another And 132 Cal.
531: The principle that the intention which the testator has
clearly expressed in his will must be followed, and that ....
the will cannot be construed as intending a direct devise
where the clearl}^ expressed intention is otherwise, and that
there cannot be a devise without operative words sufficient to
create it is aptly illustrated in the Estate of Young, 123 Cal.
337, 55 Pac. 1011."
In the Estate of Young the intention of the testatrix was
equally clear: "To C. H. Young, my husband, my bank book
shall be handet to him with gold watch and chain also two
deeds. After my husband deatts the two deeds shall go to
Katarina Muhr. ' '
It was obvious that when the testator said the two deeds
shall go to the husband and after his death to Katarina ]\Iuhr,
she meant that the husband should have the land for life with
the remainder in fee to Katarina Muhr, but the court, in
rejecting this construction, said: "There was no delivery of
these deeds during the testatrix's life. What validity they
possessed then comes from the will, and, therefore, if by act
of the testatrix title to these lands passed, we must find in
the will both an intent to devise them and operative words
to effect the intent 123 Cal. 344: If the legal ef-
fect of his expressed intent is intestacy, it will be presumed
that he designed the result.
' ' The inquiry will not go to the secret workings of the mind
of the testator. It is not what did he mean, but it is, what
do his words mean?"
Estate of H^vle. 209
In the case at bar the words of the testator mean that
Josephine Boyle should leave the property to be divided
between the six persons in question. There are no operative
words which create a direct devise, and therefore it is void.
Even if there were a case of intestacy, this result would
follow; but it is contended that the case is still stronger in
this instance of a previous and a subsequent devise.
The previous devise is as follows: "I give and bequeath to
my daughter Josephine one-half of the net rent and profits of
my building kno\\Ti as the Supreme Court Building
Also all the above described lands, with the building, after
the death of my present wife. My said daughter Josephine
to Q\m and hold said house or building and the land on which
it is situated "
The subsequent devise is in these words: "Tenth: I hereby
authorize and empower my executors to sell and convey all
and any of my property, real and personal, except the prop-
erty on the comer of Larkin and McAllister known as the
Supreme Court Building, w'hich is devised to my daughter as
set forth in this will."
The devise to the daughter is plain. The alleged devise
to the sisters, the relative and the aunt at most is an infer-
ence. Section 1322, Civil Code, therefore applies: "A clear
and distinct devise or bequest cannot be affected by ... .
other words not equally clear and distinct, or by inferences,
or argument from other parts of the will."
Petitioner asserts that in the case at bar the testator did
not give the land to another upon the death of Josephine
Boyle without issue. The most that the testator did was to
declare that if Josephine Boyle should die without issue she
should leave it to such other persons. The rule, therefore,
which applies is the rule set do^^Ti in Boyle v. Boyle, 152 Pa.
115, 34 Am. St. Eep. 629, 25 Atl. 494.
The respondents claim that the testator could not have
meant that Josephine Boyle was to leave the property to the
sisters, the relative and the aunt, because she could only leave
it by two methods, one by intestacy, and the other by will.
He could not have intended intestacy, it is said, because in-
testacy w^ould not have brought about the result in question,
Prob. Dec, Vol. II — 14
210 Coffey's Peobate Decisions, Vol. 2.
the sisters, the aunt and the relative not being the heirs at
law of Josephine Boyle ; but it is said he could not have in-
tended that Josephine Boyle was to will the property be-
cause he had previously said that she should not will it.
Whatever the testator may have meant, he certainly did say
tliat Josephine Boyle was to leave the property to the per-
sons in question. Whether he meant by intestacy or by tes-
tament we need not inquire ; but there is strong reason for
believing that he meant his daughter to leave the property by
her will to the persons in question. It is true he says she
shall not will it, but a later clause of his will shows that this
prohibition against willing referred to an unfettered power
to will, for he says (third paragraph) : "Should my daugljter
die without issue the one-half the property .... which she
has a power to will one-half of, it shall go to the charitable
institutions in this city or state as she may select, and the
other half to whom she wishes, making one-fourth of the prop-
erty left to her discretion to will to whom she pleases provided
she dies without issue."
Now, the testator says in this paragraph that there is
only one-fourth of the property left to her discretion to will
to whom she pleases, which tends to show that the other three-
fourths were intended to be willed by his daughter in the
manner in which he had directed. But whatever he may have
meant he certainly said that his daughter was to leave one-
half of the Supreme Court building to the sisters, the relative
and the aunt, and the word "leave," as the respondents say,
quoting the case of Doe v. Thorley, 10 East, 438, "as ap-
plied to the subject matter prima facie means a disposition
by will." If he did not mean a disposition by will he may
have supposed that he could constitute the sisters, the rela-
tive and the aunt the heirs at law of his daughter. But
whatever he may have meant he certainly said that whatever
right, title or interest should come to them should pass to
them by being left to them not by him, but by his daughter.
I have gone over carefully the briefs of counsel and have
endeavored to present their points of variance on the main
questions, and had intended to proceed further in an at-
tempt to state the grounds of decision, but so much time has
Estate ob^ Hale. 211
elnpscd liiat il is expedient the ease sliould be decided with-
out further delay, and I must content myself now with say-
ing that on the issues hereinabove discussed I am of the opin-
ion that the law as declared in California is correctly set
forth by the counsel for petitioner.
With respect to the annuities, while the counsel for peti-
tioner says it is a matter of simple solution, this court has
been very reluctant to accept his conclusion, but after serious
consideration it seems to be sound as he states it.
The property out of which the annuities are payable con-
sists of the rents of the Supreme Court building. The rents
of the Supreme Court building have certainly failed, and will
never again come into the hands of the distributees of this
estate. The money on hand was not derived from the rents
of that building, but was derived from the proceeds of its
sale. Therefore, the particular property which the testator
designated 'as the fund from which the annuities were pay-
able has, in fact, failed. The rights of the annuitants are,
therefore, measured by subdivision 3 of section 1357 of the
Code of Civil Procedure: "If the funds or property out of
which they (the annuities) are payable fails, resort may be
had to the general assets as in the case of a general legacy."
It is true that the money on hand is, to a certain extent,
treated for the purposes of distribution as the Supreme Court
building would have been treated if it had not been sold.
But the reason why the funds are so treated is not that the
funds and the building are identical, but the devisees of tht
Supreme Court building, being preferred devisees, are sub-
rogated to the rights of those to whom the funds on hand
would otherwise belong. For that reason only the fund must
be distributed to the devisees of the Supreme Court building
as their interests shall appear, and with such contributions
and allowance between themselves as the several preferences
shall require.
For years during the progress of this administration the
court sought to save the Supreme Court building from sacri-
fice, for the sake of the annuitants, and to execute the inten
tion of the testator, but at last it had to be sold, and although
the court regrets that this result had to be reached, it seems
to have been an unavoidable consequence of circumstances.
212 Coffey's Probate Decisions, Vol. 2.
Finally, the theory of the law governing this case as ad-
vanced by petitioner is accepted by the court and the prayer
of the petition is granted.
The Presumption that Property Purchased During Marriage is
Community Property is very cogent, and can be repelled only by
clear and conclusive proof; but where it is established clearly and
conclusively that the property was purchased with the separate money
of one of the parties, it remains the separate property of the party
with whose money it was purchased: Love v. Eobertson, 7 Tex. 6,
56 Am. Dec. 41. See, also, People v. Swalm, 80 Cal. 46, 13 Am. St.
Eep. 96; Svetinich v. Sheean, 124 Cal. 216, 71 Am. St. Rep. 50; Crochet
v. McCamant, 116 La. 1, 114 Am. St. Eep. 538. Where property is
purchased partly with the* separate funds of a wife and partly with
community funds, it belongs to the separate and community property
in the proportion in which the moneys came from each: Heintz v.
Brown, 46 Wash. 387, 123 Am. St. Eep. 937, 90 Pac. 211.
Personal Property Acquired by Either Husband or Wife in a For-
eign Jurisdiction which is by the law of the place where acquired
the separate property of either, continues to be such property when
brought within this state, and if invested in or exchanged for real
property, such property becomes separate estate also: Brookman v.
Durkee, 46 Wash. 578, 123 Am. St. Eep. 944, 90 Pac. 914. And if
money acquired by a married woman in one state as a member of a
partnership there becomes her separate property, and is brought into
another state and deposited as the funds of such partnership her
share thereof remains her separate property, and real estate there
purchased by her and paid for by a check of such partnership, in a
sum less than her share of such deposit, is not subject to her hus-
band's separate debt: Elliott v. Hawley, 34 Wash. 585, 101 Am. St.
Eep. 1016, 76 Pac. 93.
Estate of Kershow. 213
In the Matter of the Estate of MAX IT. KERSHOW,
Deceased.
[No. 25,326; decided January 18, 1902.]
Will Contest. — The Burden of Proof in a Will Contest is on the
contestant, and he should establish by a preponderance of evidence
the issues which he tenders.
Will Contest. — The Judgment of a Court of Another State admit-
ting to probate as the last will of a decedent a document earlier in
date than the one in contest is admissible -in evidence under the gen-
eral issue raised by an allegation that the document propounded as
the last will of the decedent is not his will and a denial of this
allegation.
Probate of Will — Extraterritorial Force of Decree. — A probate pro
ceeding is a proceeding in rem, and a decree admitting a will to
probate is confined in its operation to things within the state setting
up the court.
Probate of Will — Foreign Decree. — "Full Faith and Credit" is
given to a probate decree abroad, when the same faith and credit is
given to it which it has at home, which is, that it is conclusive evi-
dence of the validity of the will as affecting title to things within
the jurisdictional limits of the court at the death of the testator,
whether such title comes in contest within or without those limits;
but de jure no evidence whatever of title to things not then within
those limits.
Foreign Decrees. â €” The Constitutional Provision that Full Faith and
Credit shall be given in each state to the judicial proceedings of every
other state is not designed to extend the jurisdiction of local courts
or to extend beyond its limits the operation of a local decree, but to
provide a mode of authenticating evidence of the record of a judicial
proceeding had in one state, so that a proper general result of it may
conveniently be attained in every other state against persons and
things justly within the range of the proceeding.
Probate of Will — When not Barred by Prior Foreign Probate. —
Where a testator 's domicile' at the time of his death was in this state,
and he left personal estate therein, a decree of a court of another
state, rendered upon constructive notice, admitting to probate a
prior will, is no bar to the jurisdiction of a court of this state to admit
to probate a subsequent will presented to it for that purpose.
Wills. — A Person is of Sound and Disposing Mind who is in full
possession of his mental faculties, free from delusion and capable of
rationally thinking, acting and determining for himself.
214 Coffey's Probate Decisions, Vol. 2.
Insanity. — A Lucid Interval is a Period of Mental Clearness en-
joyed by an insane person; it is an interval during wliicli the patient
is restored so far as to be able beyond doubt to understand and to
do the act with such reason, memory and judgment as to make it legal.
Insanity. — A Statement that a Person may have had Reasoning
Power and yet have been unsound in mind imports a contradiction
in terms, aS does the statement that a person had strong will power
and yet was unsound in mind.
Wills; — Where a Person Who has Indulged in Intoxicants to such
an extent as to debilitate his mind suspends his drinking for a period,
and by such suspension so far regains possession of his faculties as
to admit of the presumption that his will was made during the time
of his calm and clear intermission, the testament is held good.
Wills — Insane Delusion. — Unless a Will is the Very Creature of a
morbid delusion put into act and energy, it is a valid will. The mere
fact of the possession of a delusion may not be sufficient to render
a person incapable of making a valid will; a person of sufficient
mental capacity, though under a delusion, may make a will; if the
testament is in no way the offspring of such a delusion, it is un-
affected by it.
Wills — Moral Quality of Testament. — A court has neither right nor
power to quarrel with the moral quality of a testator's acts; it may
not say that he should have made a different disposition; it cannot
make a will for him.
Wills. — The Constituents of Testamentary Capacity are that the
testator has an idea of the character and extent of his property, and
is capable of considering the persons to whom and the manner and
proportions in which he wishes his property to go.
Will Contest. — Upon a Review of the Evidence, it was held in this
case that the document offered for probate was executed by the de-
cedeht as and for his last will; that it was executed and attested in
accordance with the law of this state, and that the testator was, at
the time of such execution, of sound mind and competent in every
respect to dispose of his estate by will.
]\Ia\ 11. Kershow died in San Francisco, state of California,
on June 26, 1901. On September 6, 1901, Hall McAllister
and Rhea Gettings presented to the court a document bear-
ing date the sixth day of April, 1901, and purporting to be
the last will and testament of the decedent, together with a
petition for the probate thereof and for the appointment of
petitioners as executor and executrix thereof respectively.
On September 23, 1901, Hall McAllister filed a renuncia-
tion of his right to act as executor, and on September 27,
Estate of Kershow. 215
1901, Rhea Gettings, by leave of the court filed an amended
and supplemental petition for the probate of said document
and for her appointment as executrix thereof.
On October 10, 1901, Carlton M. Kershow, a brother of
decedent, filed written grounds of opposition to the probate
of the alleged will.
As grounds of opposition, contestant alleged that the de-
cedent at the time of his death was a resident of Philadelphia,
Pennsylvania, and not a resident of San Francisco, Califor-
nia, and that he did not leave any estate whatsoever within
the state of California; that the document offered for pro-
bate is not the last will and testament of decedent, and that
he did not at any time affix his signature thereto as and for
his last will and testament or for any testamentary purpose
whatsoever; that said document was not signed by the de-
cedent in the presence of J. Morgan Smith and A. J. Meadows,
whose names are subscribed thereto as witnesses, nor in the
presence of either of them, and that decedent at no time de-
clared or published or acknowledged said document to said
witnesses, or either of them, as his last will send testament,
or as any will or testament whatsoever, and that neither
Smith nor Meadows was, at any time, requested by decedent
to subscribe his name to said document as a witness thereto,
and that neither of them did subscribe his name to said docu-
ment as a witness or otherwise in the presence of decedent
or in the presence of the other; that at the date when the
signature of decedent was affixed to said document, he was
not, and for a long time prior thereto had not been, of sound
and disposing mind, but, on the contrary, that he was at said
time, and for a long time prior thereto had been, by reason
of disease and disability, of unsound mind and incompetent
to dispose by will of his estate.
On October 14, 1901, the proponent filed her answer to
the written grounds of opposition, denying specifically each
of the matters set up as a ground of contest. Both parties
waived a trial by jury, and on November 18, 1901, the trial
of the contest was commenced before the court sitting with-
out a jury.
216 Coffey's Probate Decisions, Vol. 2.
M. F. Michael, William Rix and Bishop, Wheeler & Hoefler,
for contestant.
II. I. Kowalsky, Edmund Taiiszky and Deal, Tauszky &
Wells, for proponent.
COFFEY. J. The burden of proof being imposed upon
the contestant, he should establish by a preponderance of
evidence the issues tendered by him.
1. As to jurisdiction, this is found against the contestant,
it appearing that decedent, Max Howard Kershow, was, ac-
cording to his own sworn statement, a resident of the city
and county of San Francisco on the nineteenth day of July,
1900, when he was registered as a qualified elector by the
registrar and that he had not subsequently changed his resi-
dence. At the time of his death in this city and county he
left estate herein consisting of money in bank and personal
effects. These facts clothed the court with original juris-
diction ; but it is claimed by contestant that this court is de-
vested of authority in the premises because of a judgment
rendered in the orphans' court of Philadelphia, Pennsylvania,
July 10, 1901, admitting to probate a will of a date prior
to the paper here propounded, the record of which proceed-
ing is properly before this tribunal under the general issue,
it not being necessary to plead it specially. As it might come
in as evidence legitimately, and in that manner operate as
a bar to this application, it must be considered in that con-
nection, and it is for this court to appraise its legal value
herein.
Summarized, the contention of contestant is that the judg-
ment of the orphans' court of Philadelphia, Pennsylvania,
admitting the will of decedent to probate in July, 1901, is
binding upon this court, as a judgment in rem concluding
all the world. To support this contention contestant relies
upon certain citations in the notes to Bowen v. Johnson, 73
Am. Dec. 53. I have read attentively these notes and the
principal case, and I think the context fairly states the rule
when it says that the probate of a will is unlike a judgment
between parties subject to the jurisdiction of the court ren-
Estate op Kershow. 217
derino: it, in this: that being but a decree in rem, usually
passed upon constructive notice only, it is confined in its
operation to things within the state setting up the court which
takes the probate. It has been so treated in the country from
which we derive our jurisprudence, and in general, at least,
by the courts and legislatures of our own. "Full faith and
credit" is given to it abroad, when the same faith and credit
is given to it which it has at home ; and that is that it is to be
conclusive evidence of the validity of the will, as affording
title to things within the jurisdictional limits of the court at
the death of the testator, whether such title comes in contest
within or without those limits ; but, de jure, no evidence what-
ever of title to things not then within those limits. The
clause of the constitution of the United States referred to was
not designed to extend the jurisdiction of local courts, or to
extend beyond its just limits the operation of a local decree;
but to provide a mode of authenticating evidence of the rec-
ord of a judicial proceeding had in one state, so that the
proper general result of it might be conveniently attained in
every other state, against persons and things justly within
the range of the proceeding. Notwithstanding this clause, a
judgment in a suit between parties is, as such, void out of
the state, as to parties not personally served, and not appear-
ing to defend within the state whose court renders the judg-
ment ; although if the suit be commenced by attachment of
things within the state, it is, without such service or appear-
ance, good as a judgment in rem against those things, to con-
demn them to satisfy the judgment. As little does this con-
stitutional provision extend the jurisdiction of a municipal
court of probate to things beyond the limits of the state which
sets it up, and is quite satisfied, in our judgment, "with leav-
ing the probate of a will where it finds it, a decree local in
its nature and operation": Olney v. Angell, 5 R. I. 198, 73
Am. Dec. 62.
In this last cited case the same court said that it is old
law that a will made in a foreign country and proved there
must also be proved in England in order to dispose of per-
sonal property in England: Lee v. Moore, Palm", lb'3; Tour-
218 Coffey's Probate Decisions, Vol. 2.
ton V. Flower, 3 P. Wms. 369; Vanthienen v. Vanthienen,
Fitzg. 204.
Following this rule so early established and so fully car-
ried out in the mother country, Ave apprehend it to be equally
well settled by the decisions and legislation of the country
that the effect of a decree proving a will, like that of a decree
granting administration, is confined de jure to the territory,
and things within the territory, of the state setting up the
court. In their nature such decrees are decrees in rem passed
by courts deriving all their authority from the state which
institutes them, and, necessarily, in great part upon construc-
tive notice only to those interested in the decrees ; and it is
difficult to see how a wider operation could be allowed to them,
consistently with a just attention to the rights and claims,
to the property of the decedent, of citizens of other states
in which the property was at the time of his death. What-
ever other operation is allowed to them is a mere matter of
comity, which every state is at liberty to yield or withhold,
according to its own policy and pleasure, with reference to
its own institutions and the interests of its citizens: Boston
V. Boylston, 4 Mass. 318 ; Goodwin v. Jones, 3 Mass. 514, 520,
3 Am. Dec. 173, Parsons, C. J. ; Pond v. Makepeace, 2 Met.
114 ; Doolittle V. Lewis, 7 Johns. Ch. 45, 47, 11 Am. Dec. 389 ;
Strong V. Perkins, 3 N. H. 517 ; Kittredge.v. Folsom, 8 N. H.
Ill ; Ives V. Allyn, 12 Vt. 589 ; Woodruff v. Taylor, 20 Vt.
65, 73 ; Budd v. Brooke, 3 Gill, 198, 43 Am. Dec. 321 ; Ward
V. Hearne, Busb. 184; S. C, 3 Jones, 326; Wilson v. Tap-
pan, 6 Ohio, 172; Bailey v. Bailey, 8 Ohio, 239; Embry v.
Millar, 1 A. K. Marsh. 303; Sneed v. Ewing, 5 J. J. Marsh.
565, 22 Am. Dec. 41; Darby v. Mayer, 10 Wheat. 465,
469, 6 L. Ed. 367; Armstrong v. Lear, 12 Wheat. 169, 175,
176, 6 L. Ed. 589 ; Vaughan v. Northup, 15 Pet. 5, 10 L. Ed.
639 ; Stacy v. Thrasher, 6 How. 59-61, 12 L. Ed. 337 ; McLean
V. Meek, 18 How. 16, 15 L. Ed. 277 ; Story on Conflict of Laws,
425, note and sees, 512-514a, and p. 431, note ; 1 Williams on
Executors, 204, note 1.
The legislation, we believe, of nearly all the states and cer-
tainly of our own, proceeds upon the supposition that such is
the limited operation of a probate of a will had in a foreign
Estate of Kershow. 219
country or in another state ; and provides some mode, in gen-
eral analogous to that pursued in England with regard to a
Avill which has received a Scotch i)robate, by which conclusive
operation may be given to such a will within the state, full
notice being given to all persons interested in order that they
may appear and contest the validity of the same: R. I. Rev.
Stats., c. 155, sees. 5-10; Dublin v. Chadbourn, 16 Mass. 433;
Laughton v. Atkins, 1 Pick. 535 ; Trecothick v. Austin, 4 Ma-
son, 34; Fed. Cas. No. 14,164; 1 Williams on Executors, 205,
note, 1; Story on Conflict of Laws, sec. 513, and note 1, and
cases cited.
We do not apprehend that article 4, section 1, of the Con-
stitution of the United States extends to the operation of a
probate of a will, as a judicial act of a state, beyond its own
territory. "Full faith and credit" is given to such a decree
when it is left where it is found, local in its nature and opera-
tion.
In Rhode Island, from which state the foregoing remarks
are appropriated, application must be made to the court to
permit the authenticated copy and probate to be filed and
recorded. Notice must be given as in the case of an original
application for probate. If no objection is made, or none in
the judgment of the court sufficient to prevent it, the court
shall cause the copy to be filed and direct it to be recorded,
when "the filing and recording thereof shall be of the same
force and effect as the filing and recording of an original will,
proved and allowed in the said court of probate ; but no such
will is valid unless executed, subscribed and attested accord-
ing to the local law." In Pennsylvania the foreign will,
when a copy thereof duly authenticated is proved in that
state, has the same effect as if it had been originally proved
therein.
In California when a copy of the will and the probate
thereof duly authenticated is produced by the executor or by
any person interested in the will, with a petition for letters,
the court must appoint a time for the hearing, of which notice
must be given the same as for an original petition for the
probate of a will.
220 Coffey's Probate Decisions, Vol. 2.
If, on the hearing, it appears upon the face of the record
that the will has been proved, allowed and admitted to pro-
bate in any other of the United States, or in any foreign
country, and that it was executed according to the law of the
place in which the same was made, or in which the testator
was at the time domiciled, or in conformity with the laws of
this state, it must be admitted to probate and have the same
force and effect as a will first admitted to probate in this
state: Code Civ. Proc, sec. 1324.
It has been shown conclusively in this case that the domi-
cile of the decedent at the time of his death, and for a long
period prior thereto, was in this city and state, and that he
left personal estate therein, and in that case, it seems, this
court is not bound to receive such a document as the Phila-
delphia record to destroy its own title to jurisdiction. In
such case it is doubtful whether such a record can be admitted
at all in evidence, for it is said in the notes to Bowen v. John-
son, cited by contestant, that the original will itself must be
produced in the court of the state where the actual domicile
was at the time of his death; but however this may be, I
cannot concur in the conclusion of contestant that the for-
eign record has the force and effect claimed for it by him
on this application. It is not a bar to this proceeding.
As to the alleged will itself, it is claimed by contestant that
the document bearing date the sixth day of April, 1901, is
not the last testament of decedent; that he never signed or
executed the same ; that he was not of sound mind at the
date thereof ; that it was not signed in the presence of the
alleged subscribing witnesses ; that the statutory requirements
were in no particular observed; that the signature of this
paper is utterly unlike any of the exemplars in this case;
none of the checks contains a signature so feeble in form or
so lacking in characteristics as the one found on this paper;
no satisfactory explanation has been given of the appearance
and condition of this paper ; it was mutilated in a manner not
explained by the evidence. Contestant claims that decedent
at the time of the alleged execution was thoroughly saturated
with and sodden in liquor ; he was a dipsomaniac ; he was so
diseased by the use of intoxicants habitually that his mind
Estate of Kershow. 221
and brain were incapable of intelligent operation. The com-
petency of the mind must be judged by the nature of the act
to be done ; the act must be volitional, not merely mechanical.
Contestant insists that the testimony of the witness Morgan
Smith as to cutting the top of the sheet ^nd the character and
appearance of the paper indicate that it was tampered with;
it may readily be seen how easy it would be to fabricate such
a document ; it is not difficult to understand the process by
which this could have been manipulated; the appearance of
alteration has not been adequately accounted for : Code Civ.
Proc, sec. 1982; Schouler on Wills.
As to the signature of Max H. Kershow to the document,
Carlton M. Kershow, the contestant, testified in his cross-ex-
amination that it was probably the handwriting of his brother,
the decedent, although he had a doubt as to the terminal let-
ters "ow"; but notwithstanding dissimilarities between this
signature and those in the standards, the characteristics are
the same, and it cannot be concluded on the evidence that de-
cedent did not write his name on the paper propounded.
Whether decedent signed it intelligently or automatically
is another question.
Whether the act was mental or mechanical. Max H. Ker-
show wrote his name on that paper.
The strictures of contestant on the appearance and condi-
tion of the paper itself and the doubts thrown upon the exe-
cution would not be too severe as matters of first impression ;
but in the light of all the evidence this court cannot find them
finally justified.
We have the direct and positive testimony of Morgan
Smith that he drew the will at the dictation of decedent on
the evening of the 5th of April, 1901, and that on the next
morning it was signed by the testator, and the attestation
clause dictated by him and written by Smith, when the latter
and iMeadows signed as subscribing witnesses.
Smith swears that he went to the apartments of decedent
on the evening of the 5th of April, 1901, at about 6 o'clock;
dined there that evening with Mr. Kershow. Alice Kennedy
also dined there but had her dinner separately; no one else
was there but the waiter; Alice left at about 8 o'clock, ac-
222 Coffey's Probate Decisions, Vol. 2,
cording' to the clock in the room; John Roland was not there
at all that evening; at about half -past 9 or 10 o'clock dece-
dent said to Smith, "Morgy, get some paper; I want to do
some writing; I want to make my last will"; Smith got a
tablet and made sev'eral drafts at decedent's dictation; this
was between half-past 8 and 10 o 'clock ; he made a half
a dozen drafts and tore them up ; the decedent was trying
to revive his law memory, he having been a law student in
Harvard ; finally Smith finished the paper in ink, on a piece
of legal cap he had in his pocket among his insurance papers ;
then decedent said two Avitnesses were necessary, and they dis-
cussed names with reference to their fitness and their liabil-
ity to keep their own counsel, at length settling on Meadows,
and Smith went out to find him, and saw him but he could
not come until next morning; Smith left Kershow's apart-
ments at about a quarter or half-past 10 and returned at 1
o'clock and slept with him that night, arising at about 8
o'clock next morning, no one else being there; at about 9
o'clock on the next morning, April 6, 1901, Mr. Meadows
came in ; Mr. Kershow was awake and said to Meadows that
he wanted him as a favor to act as a witness to his will;
that it was a matter of the greatest secrecy, as if any of his
folks knew he was about to make a will they would try to
prevent him; he then read the will aloud, remarked on the
misspelling of his brother's name with an initial "K," but
said it would make no difference ; he then said that an attesta-
tion clause was necessary ; decedent first signed his name, then
Smith took the document and added the attestation clause at
the dictation of decedent; then at his request and in his
presence and in the presence of each other Smith and Mead-
ows signed their names as witnesses, decedent declaring it
to be his last will and testament ; Smith added the date in
writing ; on the evening before, while Smith was engaged in
making the drafts, Kershow said that his law memory was
rather bad but he thought he was able to draw his own will ;
Kershow was sober absolutely when he signed the will, as
well as the night before when he dictated to Smith the terms
of the instrument; he was sound in mind and acting of bis
own free will; after the execution Smith asked a waiter to
Estate of Kershow. 223
ring for a messenger and one appeared at about 11 o'clock^
by whom he sent a message to A. B. Forbes & Son, the mes-
senger returning in fifteen or twenty minutes with a checl:
from them ; Smith took the will and put it in his trunk in
his room and kept it there until he moved to Sausalito, June
15, 1901, when he put it in his desk at the office in the Crocker
building, where it remained until the day of the death of
Kershow, when he took it to the office of Mr. Kowalsky and
gave it to him; between the time of writing the will and
the day of the death of the testator Smith swears he never
spoke to anyone concerning the transaction. Smith testi-
fied that Eoland was not at or in Kershow 's rooms on the
nights of the 5th, 6th and 7th of April, 1901 ; Smith remained
there for several days because his eye had been injured and
he thought it prudent to remain inside until the injury was
repaired. With regard to the appearance of the paper Smith
said he cut off the margin of the sheet on which the will
was written — the left-hand margin — because ink had lieen
spilled on it. Subsequently in his testimony he said that he
divided the sheet of legal cap at the top by a knife held
vertically and cut off the margins in the same manner; this
he did before the occasion of writing the will ; he did it in
the insurance office; he had several sheets of legal cap which
he used for making "prospects" of policies on; he had it in
his left hip pocket with his insurance papers, and one day
he took out the sheets and laid them on his desk upon which
some one had spilled some ink and shoving the papers to the
left side, not noticing the ink. the sheets became soiled, and
some of them spoiled, and he cut the margin of some to save
the paper; that is how this particular half -sheet became cut
on the left margin ; Smith did not know where he obtained
the legal cap originally, it might have been in Gamage's of-
fice, which he sometimes visited — the office of Jules C. Gam-
age, the collector.
Meadows sustained Smith as to what occurred at the time
of the transaction, and declared that Kershow was perfectly
sober on that occasion and drank nothing during that time
and was sound in mind.
224 Coffey's Probate Decisions, Vol. 2.
It may be said that the witnesses, except the parties and the
witness on the stand, were excluded from the courtroom dur-
ing the taking of testimony.
As against these subscribing witnesses the contestant relies
on Alice Kennedy, maid-servant,- and John Roland, man-
servant, of the decedent, to show that the story of the draft-
ing and execution was absolutely untrue, and impossible be-
cause neither Smith nor Meadows was there on the occasion
sworn to by them, as John and Alice were there all the time
and knew all the facts.
Dr. Wagner's evidence is also relied upon to demonstrate
that the condition of the decedent was incompatible with
soundness of mind at the date of this document ; that he
was so debilitated in mind by his habits of drink that any
manual action was automatic and not responsive to intellec-
tual impulse. Contestant maintains that the doctor's observa-
tion was acute and constant and friendly, sympathetic and
accurate.
Roland testified that he was in the service of decedent for
two years, serving him at night, and that he was with him
in his apartments all the time at night; he reported at 6
o'clock and then went to dinner and came back at 8 o'clock
and remained all night ; Alice was there during a part of each
night ; from the 1st of April to the 24th of April, 1901, de-
cedent was in bed all the time; Roland saw Kershow nearly
every day for two years and believed he was unsound in
mind in April, 1901 ; on the night of April 5, 1901, decedent
was very wild in mind, he had visions; he was not then of
sound mind; this condition lasted some four or five days;
during that whole night the mental condition of decedent
was unsound ; when Roland left on the morning of the 6th
at about 8 or half -past 8 o'clock Alice Kennedy was there;
Roland went there at 6 o'clock in the evening and reported
and came back at 8 and washed decedent and then went
away and returned at 10 o'clock and remained all night; hypo-
dermic injections were given to decedent about every night,
usually about half -past 9 o'clock; in the daytime Roland
worked for Dr. Wagner ; from the time Roland went into Ker-
show 's room on the evening of April 5, 1901, until he left
Estate op Kershow. 225
ou the morning- of the 6th no one came in there except Dr.
Renz.
Roland testified that he gave Kershow whisky whenever he
wanted it, whether he was insane or drunk; he sometimes
put water into it, decedent always drank water after his
whisky; it is a fact that he could not keep the whisky on his
stomach. Ou the occasion of decedent's birthday there were
present Ada Thall, Alice Kennedy and Roland; no one else
was present at that time. Roland testified that his first check
from decedent was at the IVIaison Riche ; it was for $20 ; the
second check was at Tortoni 's for $15 ; this was the only
check decedent gave him at Tortoni 's ; that was in 1901 ; Ro-
land swore that he could not be mistaken about that, only
one check at Tortoni 's. Two checks were exhibited to wit-
ness and the indorsement identified as written by him : ' ' John
E. Roland," checfe dated March 29, 1901, for $23, and :\Iay
21, 1901, for $10. At these dates decedent was living at Tor-
toni 's; Roland said that the decedent was always drunk when
he was with him ; when he wrote those checks he was drunk,
under the influence of whisky, in a mild form ; decedent was
in bed when he wrote those checlvs. When decedent made up
his mind to do anything, Roland said, he always did it. J\Ior-
gan Smith was seen by this witness dining at Kershow 's rooms
more than twenty times in 1901.
Alice Kennedy worked for decedent at the Maison Riche
and at Tortoni 's ; he was drunk all the time at the Riche and
the same at Tortoni 's; he drank constantly; his favorite was
Hunter Rye Whisky ; he drank also beer, absinthe, and white
wine ; he was of unsound mind ; from the 1st of April until
the 24th he was unable to go out at all ; Morgan Smith was
not in that room during all that time and she never saw A.
J. Meadows. On the 5th and 6th of April, 1901, decedent
was of unsound mind; on the 7th he was a little better, his
mind was a little more settled, not so flighty; there was a
person called Ada there for some time at times; her name
Avas Miss Ada Thall; she was there on his birthday, the 24th
of May, as near as Alice could remember; she was there on
the date that Alice went to the steamer with ^liss Gettings;
Pi-ob. Dec, Vol. II — 15
226 Coffey's Probate Decisions, Vol. 2.
came there two or three days before Kershow's birthday, and
remained until the day before he died, when she was sent
home. It is in evidence that Miss Gettings left for China
May 29, 1901. Alice said she never knew Mr. Morgan Smith
to do any writing for Mr. Kershow ; decedent told her at the
Maison Riche that his birthday would be April 24th; he told
her also at Tortoni 's ; on both occasions he told her before
his birthday had arrived; at the Maison Riche he drank ab-
sinthe, beer, wine, whisky, mainly whisky, that was his fa-
vorite, but he could not keep it on his stomach, which was
burned out. Alice sometimes put water in, but he was very
cute about his whisky, one could not fool him on that; at
Tortoni 's he drank more whisky than at the Riche ; he was
liberal with his liquor — everybody that came had a drink;
the effect of the liquor was very bad on him the Avhole time
at Tortoni 's ; he was a very friendly gentleman, indeed ; he
was a lovely man ; he would join in the conversation with
John and her. One day was very much like another at Tor-
toni 's, no great variety. John Roland used to come in at
about 6 o'clock in the evening and would remain for dinner;
John and Alice would have dinner there together ; they would
be so engaged at the table until about half-past 8, not always
eating but it would take some time to obtain dinner after
ordering and they would sit there talking and Mr. Kershow
would engage in their talk, would joke and laugh; he was
very sociable, liked company and liked to entertain his friends ;
he sometimes imagined he saw things, would get up and hunt
around, and Alice would ask him, "What is the matter, Mr.
Kershow?" and he would say, "Is that you, Alice?" and
say he thought somebody was there, and she would say ' ' No, ' '
and lead him back to bed; he would recognize her. Alice
testified that April 7th of this year (1901) was on a Satur-
day, and that the mental condition of Kershow was about
the same on that day as the day before, he was a little bet-
ter; she afterward corrected her statement as to the date
and said she was in error when she stated that the 7th of
April was a Saturday; it was Sunday — Easter Sunday —
there was not much change in him on that day ; he was about
the same, a little flighty at times; she could not remember
Estate of Kershow. 227
anything particular he did from day to day; he would keep
on drinking, sometimes he would brace up a little and say
he wanted to write to his brother, the "Kid," as he called
him, whom he wanted to come and straighten out things, as
he had run so far behind in his affairs ; then he would re-
sume his habit of drinking; Alice never saw Morgan Smith
do any writing in Tortoni's; in the Riche he used to come
in and ask for a piece of paper and sit down and scribble
off something, a letter to his friend, he would say, and then
leave. At the time Jule Gamage came to see her at her flat
he asked her to go in with the will and she would have a
thousand dollars; she told Gamage that Mr. Kershow did
not leave any will except the one he gave to Mr. Michael;
he made no will while she was there and she was there with
him all the time. Alice said that Getz's barkeepers did not
dine there. At the time Alice was being interrogated as to
dates she was observed consulting a card hidden behind her
satchel, which, upon demand of counsel for respondent, she
revealed, saying that it was a card with her name, Alice Ken-
nedy, and written upon it, "Born: Aug. 16th, 1867. Mar-
ried, June 5, 1900." This was on the obverse side, referring
to her birth and marriage ; she stated that she had in her
satchel this card and had looked at it during her testimony
as to dates; it was in her husband's handwriting, except the
figures "1899" on the name side, which were written by her.
Dr. Henry Louis Wagner testified he knew the decedent
when he was living at the Palace Hotel and the Maison
Riche; he had to refer to his visit-books to refresh his mem-
ory as to dates of professional visits; he saw the decedent
on the 5th, 6th, and 7th of April, 1901, at Tortoni's and also
on the 4th and 8th of April ; the entries in his books were of
purely professional visits ; the witness was there thirty times
in April and always saw Alice there; he was never there
after 10 o'clock in the evening; sometimes his "man" Roland
would be there. The doctor knew decedent since 1899 ; he
visited him at least fifteen times during the month of April,
1901, socially, as a friend, in addition to his thirty profes-
sional visits in that month; at least every second day he
called upon him in a social way; the doctor spoke to him
228 Coffey's Probate Decisions, Vol. 2.
iil^oii a variety of subjects; decedent frequently asked the
doctor's advice upon matters unconnected witli his ailments;
he had called at the doctor's office to speak to him upon other
matters. The doctor first formed decedent's acquaintance in
April, 1899, on a professional visit. Dr. Waj>ner formed an
opinion as to Kershow's soundness of mind in April, 1901,
based upon observations in his social visits apart from in-
formation acquired by him as necessary to prescribe ; in the
opinion of the doctor the decedent was unsound in mind ; he
had hallucinations. Dr. Wagner testified he was a surgeon-
and made a specialty of surgery of the head, neck, throat,
and brain, but was not an alienist. The decedent was
addicted to drink; the witness treated him for various
troubles, an infraction of the skull ; a wound over eye ; ear
troubles, and inebriety. In cross-examination Dr. Wagner
further testified that in the visits made by him to decedent he
remained often from fifteen minutes to two hours ; he often
went to visit him in a friendly way in March, April, and
May, 1901 ; decedent was in a stupor frequently and incom-
petent to intelligently interpret or intelligibly communicate
his ideas ; in fact, decedent was mentally incompetent. Dr.
Wagner testified that decedent drank a great deal ; Ker-
show was originally a bright man, of good instincts, who had
when he came to San Francisco two and one-half years ago,
streaks of brilliancy and inspired hopes of cure, and the doc-
tor had some confidence in his reclamation ; he became greatly
interested in him, took a friendly interest in him ; at the be-
ginning the doctor tried hard to convince decedent that he
should cease drinking; his arguments were unavailing, how-
ever, and when Dr. Renz took charge of the case Dr. Wag-
ner gave up his efl'orts and told Dr. Renz that he might
try his own theory. Dr. Renz thought he might effect a cure
by hypnotism and by injections of strychnia, but Dr. Wagner
became disgusted with his own ill-success and so quit his
efforts in that direction ; by unsoundness of mind Dr. Wag-
ner meant where a man has lost his reasoning powers ; Mr.
Max Kershow had strong will power. A letter written in
pencil by Max Kershow to his brother Carl, dated May 21,
1901, about bill of Dr. Wagner, was shown to this witness;
Estate op Kershow. 229
in reference to this letter the doctor said that he had written
out his account or bill some time previously, and subsequently
sent his man Roland to collect it. In the opinion of Dr. Wag-
ner, Mr. Max Kershow was devoid of reason during March,
April. iNIay. and June, 1901 ; decedent may have had reason-
ing power and yet have been at the same time unsound in
mind; at the minute he wrote that letter he may have had
reasoning power; the doctor discussed business with decedent
in 1900 ; decedent was very suspicious in everything he did
and in every transaction ; small in every possible way.
The letter shown to Dr. Wagner is as follows :
"San Francisco, May 21, 1901.
"My Dear Carl—
"Dr. Wagner wrote to you about his bill and I must have
same way of paying it off, also that of Dr. Renz which will
be surely as large. Can you not find out what my balance
at the Trust Co. is and telegraph the amount to me at Palace
Hotel. The Maison Riche closed and I have been living at
Tortoni's for some months. My dear Carl, I am compelled
to have some money to live on, as I only have a small sum at
present (about $50.00) and I want 3^ou to consult with Uncle
Harry and dispose of a piece of my interest in Denver. You
of course can buy it out. I will have Mr. Michael make out a
pov.-er of attorney for you and you can give me a certain sum
as an allowance, until I am myself again. It would be much
more satisfactory if you could come out here but I suppose
that is not convenient for you. At least find out my balance
at Trust Co. and telegraph it to me as I must have the money
at once. I have not written to you for the reason that I have
been so sick that I could not. Dr. Renz has just kept me
alive. He wants you to come out.
"Your brother,
"MAX H. KERSHOW.
"I enclose check so you can draw out balance.
"MAX."
At the minute he wrote that letter, Dr. Wagner says, the
writer may have had reasoning power ; he may have had
230 Coffey's Probate Decisions, Vol. 2.
reasoning power and yet have been unsound in mind at the
same time. The doctor had previously said in his testimony
that by unsoundness of mind he meant where a man had lost
his reasoning powers and that in his opinion Max Kershow
was devoid of reason during the four months of March,
April, May, and June, 1901 — and it was during this period
that the letter hereinbefore inserted was written. This letter
was a continuous performance, which must have occupied
its writer for several minutes; in fact, it must have ap-
proximated fifteen minutes in its composition and execution.
Dr. Wagner's testimony was taken under objection, on ac-
count of his professional relation to decedent, and it is diffi-
cult indeed to separate his professional from his social rela-
tion, but his idea of his patient's soundness of mind may be
considered here in connection with the accepted definitions.
By the mind of man we understand that in him which
thinks, remembers, reasons, wills. Will, memory, and under-
standing are usually denominated the constituents of the
mind. The principal faculties of the human mind are called,
respectively, the understanding and the will. A person is
of sound and disposing mind who is in full possession of his
mental faculties, free from delusion and capable of rationally
thinking, acting, and determining for himself.
Lord Chief Justice Cockburn, in the course of his opinion
in Banks v. Goodfellow, said: "Everyone must be conscious
that the faculties and functions of the mind are various and
distinct as are the powers and functions of the physical
organization. The instincts, the affections, the passions, the
moral sense, perceptions, thought, reason, imagination, mem-
ory, are so many distinct faculties or functions of the mind. ' '
In considering testamentary capacity in the same case, he
said further: "It is essential to the exercise of such a power
that a testator should understand the nature of the act and
its effects; shall understand the extent of the property of
which he is disposing; shall be able to comprehend and ap-
preciate the claims to which he ought to give effect; and with
a view to the latter object, that no disorder of the mind should
poison his affections, pervert his sense of right, or prevent
Estate op Kershow. 231
the exercise of the natural faculties; that no insane deliLsion
shall influence his will in disposing of his property, and bring
about a disposal of it which, if the mind had been sound,
would not have been made. This is the measure of the de-
grees of mental power which should be exacted."
Maudsley, in his work on Responsibility in Mental
Disease, says that this decision of the court of queen's bench,
which practically is that an insane man may sometimes make
a sane will, agrees so far with the older decisions as that the
will itself, if appearing to be a rational act, rationally done,
was held to be evidence of a lucid interval.
What is a "lucid interval"? Dr. Wagner had not heard of
the term before the trial of this case ; the institutions in
which he had been instructed had not comprised in their cur-
riculum the study or treatment of diseases of the mind, and,
while the doctor is an eminent surgeon and distinguished in
his specialty, he does not profess to be an expert in alienism,
and did not seem to comprehend the phrase ** lucid interval"
until it was explained to him as a period of mental clearness
enjoyed by an insane person, during which he is capable of
performing an act binding in law; it is an interval during
which the patient is restored so far as to be able, beyond
doubt, to understand and to do the act, with such reason,
memory, and judgment as to make it legal. In the opinion of
Dr. Wagner, Kershow enjoyed no such interval for the four
months during which he wrote the letter of May 21, 1901,
and is said to have dictated and executed the paper here pro-
pounded as a will dated April 6, 1901, which may be here in-
serted as follows :
"I, Max H. Kershow, being of sound and disposing mind,
declare this to be my last will and testament, hereby revok-
ing all former wills by me made. I give and bequeath to my
brother Karl $5,000.00 to each of my uncles, J. Henry Ker-
show and P. Kershow $1,000.00, to my servant Alice Kennedy,
$1,000.00, to my friend J. Morgan Smith $500.00. The rest
of my estate real and personal wherever situated, after pay-
ing the above bequests and my just debts, I bequeath to my
sincere and devoted friend Rhea Gettings.
232 Coffey's Probate Decisions, Vol. 2.
"I nominate and appoint as one of my executors of this my
last will and testament Hall McAllister together with Rhea
Gettings as executrix without giving bonds.
"MAX H. KERSHOW.
"We, J. ]\Iorgan Smith and A. J. Meadows, have signed our
names as witnesses to this the last Will and Testament of
^lax II. Kershow at his said Kershow's request and in his
presence and in the presence of each other.
."J. MORGAN SMITH.
"A. J. MEADOWS.
"April the sixth nineteen hundred and one."
At the time Kershow wrote that letter he must have been
in possession of his faculties ; it w^as a rational act, rationally
done; all the mental processes are there carried forward
logically and relevantly ; he shows an appreciation of the
magnitude of the physician's charges and an apprehension
based upon that account of as large a bill from the other
physician, and a desire to provide for a discharge of the in-
debtedness; he wishes to be advised of the balance at his
bankers in the east, knows the amount he has on hand locally,
advises a consultation between his brother and his Uncle
Harry as to a sale of property in Denver; intimates that his
brother can make the purchase himself; says that he will
have his attorney make out a power for his brother who can
then give him a certain sum as an allowance until he is
himself again ; says it would be much more satisfactory if
his brother could ccme out here, but supposes that it is not
convenient; again requests that he ascertain the balance at
the bank and telegraph it out as he must have the money at
once ; gives a reason for not writing because of his sickness ;
says that Dr. Renz has just kept him alive and that the doctor
wants Carl to come out ; subscribes himself dutifully and with
his full name, adds a postscript inclosing check so his brother
conld draw out balance.
ill this letter the writer seems to have been able to intel-
ligently interpret and intelligibly communicate his ideas. It
can scarcely be said, as a responsible utterance, that the writ-
ing of that communication was a manual act, purely automatic
and not responsive to intellectual impulse. Every element en-
Estate of Kershow. 233
gaged in the definition of a sound mind enters into the struc-
ture of that letter. The letter speaks for itself and needs no
further comment. Whatever the writer's condition at other
times may have been, this letter must have been produced
during a lucid interval ; but the doctor says that decedent
may have had reasoning power and yet have been unsound
in mind; this statement imports a contradiction in terms, as
does the statement that decedent had strong will power and
yet was unsound in mind.
Dr. Wagner's own testimony shows that when the man
was sober he was sane; for the doctor spent hours with him
socially, argued with him over his prevailing vice without
avail ; had conversations on business with him in which the
doctor discovered that decedent was very small and sus-
picious in everything he did and in every transaction. It
appears that in one affair the doctor and decedent differed
widely as to the value of a ranch which the former desired to
dispose of to the latter; decedent thought the price too great
and it was not the kind of a ranch he wanted and he declined
to purchase; this seems to signify sanity rather than the
opposite ; in this he seemed to have been capable of rationally
thinking, acting and determining for himself as to the value
and character of the property, and it appears that the doctor
by his negotiations, conversation and acts was willing to deal
directly with decedent in so important a matter.
It appears, then, from the doctor's own statement that at
times the decedent had reasoning power, a strong will, and a
sense of property values; he knew what he was about and,
as John Roland, "the doctor's man," and the man-servant of
decedent testified, when ]Max Kershow made up his mind to
do anything, he always did it.
It appears from the testimony of the doctor's man that
the decedent had a stubborn spirit; the doctor said he had
a strong will and a suspicious nature ; they both agree that
he was of unsound mind.
Alice Kennedy was of the same opinion a.s to soundness
of mind, but testified that decedent was a liberal, kindly
disposed man, a very friendly gentleman; "a lovely man,"
sociable, generous in the entertainment of his friends, the
234 Coffey's Probate Decisions, Vol. 2.
soul of hospitalit.y, fond of jest, agreeable in conversation,
joining before and during the dinner hour in genial talk
with her and Koland, joking and laughing, and making his
pleasant presence felt by everyone — ^servant as well as guest ;
and yet he was drunk all the time at Tortoni's and of un-
sound mind and unable to leave his room from the 1st of
April to the 24th of that month by reason of his condition.
With reference to these two witnesses, John Roland and
Alice Kennedy, it may be said that there are frequent in-
firmities in their testimony which weaken its general effect.
There are contradictions from within and without. Roland
is contradicted in an important item by his employer. Dr.
Wagner, with respect to the time of arriving in the morning
at the doctor's office; he is also contradicted upon a vital
point by Alice as to the time when he came and went on the
5th of April, 1901 ; she swears she asked Roland to come
early on April 5, 1901, because she wanted to go somewhere;
she asked him the day before, he did not come and she did
not go anywhere else ; she remembered the event and the
evening because it was the eve of her child's birthday; but
their tales of the time of coming and going do not tally ; they
are diametrically opposed and cannot both be true. Alice
Kennedy's memory as to dates was more than imperfect;
even when her testimony as to dates was shielded by the
card concealed within or behind her satchel on the witness-
stand, she was uncertain; without the memoranda she was
helpless as to dates of important incidents and occurrences
in her own career ; her recollection in this respect was un-
trustworthy; her evidence in her divorce suit against her
first husband Green does not comport with what she said
on this trial as to dates; the discrepancies are too great to
be ignored or excused; she contradicted herself in many es-
sential particulars as to events in her own life which should
have fastened themselves imperishably on her memory; how,
then, can she expect to be accepted with reference to matters
with which her connection was collateral and of inferior im-
portance to those of her domestic personal concern?
Roland and Alice are contradicted with reference to ^Morgan
Smith's presence at the rooms of decedent in April, 1901.
Estate of Kershow. 235
Moses Getz, the saloon-keeper, testified that he visited Ker-
show nearly every day in that year and in that month at
Tortoni's, and that nearly every time he saw Smith there.
Getz said that decedent was careful in business matters,
although he spent money freely at the saloon ; opened wine
to the extent of $150 a night at times ; this witness lent money
to the decedent as high as $100 at a time, amounting some-
times in the aggregate to $400 or $500, all paid back;. decedent
always paid his debts; Getz remembered that in April, 1901,
decedent had his birthday and induced the witness to let
his barkeepers go up to dinner with him at Tortoni's, Getz
remaining at work in their place ; they came back at about
9 o'clock with some cake which they said was birthday cake,
and Kershow followed soon after; this was in the latter
part of April, 1901. Getz thought the decedent was sound in
mind, basing his opinion on observation and conduct. The
barkeepers, Simmons and Crayton, testify to visits to Tor-
toni's and to the dinner spoken of by their employer. Sim-
mons swore that he often visited Kershow at his rooms ;
decedent frequently invited him to dinner and they dined to-
gether at Tortoni 's ; Alice Kennedy and John Roland, the
maid and the man, w^ere usually present; on decedent's birth-
day in this year Simmons had dinner with decedent at these
rooms ; there were five persons present — ]\Ir. Max Kershow,
Alice Kennedy, John Roland, William Crayton, and this
witness; Simmons believed that a j^oung lady, Ada Thall,
partook also of the dinner; the rooms at Tortoni's comprised
a dining-room, bedroom, and bath; decedent sat at the table
set in the dining-room; he was not drunk; he showed what
he got for his birthday : cake from the proprietor, flowers
and old Spanish wine; Simmons remained there from 6 to
9 o'clock that evening, when he returned to his work, leav-
ing Crayton behind; Simmons went on duty until 12 o'clock,
but did not see decedent again that night ; from his acquaint-
ance with Kershow he thought him of sound mind ; decedent
was oftener sober than drunk.
Crayton, the other barkeeper, corroborated his associate
as to the birthday dinner party and added that after Simmons
left there he remained until about a quarter to twelve mid-
236 Coffey's Probate Decisions, Vol. 2.
night; when Crayton left Tortoni's he was accompanied by
Kershow and the man-servant Roland ; they went down to
the ^lauhattan saloon together; previous to that night and in
the same month Crayton had seen decedent in that saloon on
two or three different occasions; from what this witness saw
of him he thought ]\Iax Kershow was of sound mind; Cray-
ton had seen Morgan Smith in the rooms at Toi^toni's two
weeks before Mr. Kershow died ; Crayton says that when he
saw Kershow he was sometimes sober and sometimes under
the influence of liquor; three or four times the witness sa\v
him wlien he was absolutely intoxicated. Alice Kennedy
swore that these two barkeepers, Simmons and Crayton, did
not dine there on the birthday, although on the evening of
that day Henry Simmons brought a bunch of flowers to
Kershow.
The date of the birthday of decedent is fixed by the evi-
dence as April 2-4, 1901, which was Wednesday.
Alice reiterated that neither of the barkeepers was there at
dinner on that occasion, and that those who partook of the
meal were decedent and the girl Ada, John Roland, and her-
self ; Simmons did not stay for dinner; he just came in with
the flowers, left them, and went out again.
The story of Alice as to the visit of Jules Gamage to her
on the morning of Max Kershow 's death is contradicted by
Gamage, who declares under oath that he did not call at lier
house nor on her on that morning nor on the next, nor did he
have any conversation with her on either of those occasions
or days at her house or elsewhere, or at any other times, and
never said anything to her about a will or that she should get
$1,000 by the will, or that she ought to call on one of the
attorneys ; Gamage did not see nor converse with her on
that topic, and he did not even know at the time she alluded
to of the death of Kershow. It appears that decedent died at
fifteen minutes after midnight, and none of the witnesses for
the proponent knew of the decease until long after the hour at
\vhich Alice swore that Gamage called to see her and made
the proposition that she rejected.
Max H. Kershow was a man of honor, in his way; he was
mindful of his financial obligations, and inclined to be
Estate of Kersiiow. 237
punctilious as to their discharge to the last penny; he may
have wasted much on wine and women, but, if we are to
accept Dr. Wagner's estimate of his character, he was other-
wise a cautious, prudent !)usiness man, for such is the de-
duction from the doctor's declaration that decedent was a
suspicious and a distrustful person, who never paid out a dol-
lar without a doubt or demur. He was evidently anxious,
however, for he ad.jured his brother Carl to provide for the
extinction of outstanding lial^ilities; among others certain
notes to one Friedman. Carlton Kershow testified that Max
said he would be glad if Friedman was paid, and upon that
suggestion Carlton paid the notes ; Carlton was at his
brother's room about four or five daj's before the death when
Friedman called there ; Friedman suggested to INIax that he
owed him a certain amount, and Max asked Carl to fix it for
him, $161 approximately ; Carl paid before the death.
Carlton also paid some I U's for his brother after some
talk between them; the payment was made in his brother's
front room. Carlton had previously in his testimony, some
ten days before, giving an account of these transactions, ex-
pressed his belief that by reason of his habits his brother Max
was out of his mind; Carlton believed that Max was insane
as the effect of continued indulgence for years in intoxi-
cants and narcotics, and he said that his brother was con-
stantly under the influence of drugs or intoxicants for the
last two weeks of his life, and that morphine was administered
to him hypodermically by Dr. Renz.
Dr. Renz was not examined as a witness in this case, it
appearing that he was obliged to go abroad abruptly without
affording an opportunity to take his deposition.
It was during these two weeks during which Carlton Ker-
show testifies that his brother was constantly under the influ-
ence of liquor and drugs, out of his mind, insane, that the de-
cedent requested his brother to pay Friedman and arrange
for the payment of the I U 's.
Alice Kennedy admitted that she knew a Mr. Friedman, a
jeweler on Stockton street; "he visited I\Ir. Kershow once or
tv.dce. ' '
What does IMr. Friedman say on this subject! Ralph
b>iedman testified that he Vv^as forty-two years of age, a
238 Coffey's Probate Decisions, Vol. 2.
dealer in diamonds and jewelry at 25 Stockton street; knew
the deceased, Max Kershow, who lived for a while at the
]\Iaison Riche ; Friedman sold to Kershow diamonds to the
amount of $275 ; sold him a sunburst and a silver cigarette-
case on Christmas Eve, 1900 ; decedent was then staying at
Tortoni's; witness had dealings with him in the year 1901;
advanced him some money ; decedent sent for witness and he
went to the rooms at Tortoni's; decedent was in ])ed and
asked witness if he would lend him $100. Friedman said
"Certainly," and let him have that sum, for which he gave
his note ; subsequently Kershow directed Friedman to let Miss
Gettings have $50, and witness did so, taking his note for
that; afterward witness was repaid by decedent's brother in
the rooms of Max Kershow at Tortoni's, the brother Carlton
in one room and Max in the other. Friedman let Max Ker-
show have the $100 in the latter part of April or first part of
May; the notes were paid about five or six days before he
died; five or six days before the payment Friedman heard
that decedent wanted to see him and he went to the rooms
at Tortoni's; there were present Mr. Max Kershow in bed,
his brother, whose name witness did. not then know, and Alice
Kennedy, the maid; Mr. Max Kershow asked Alice to step
out into the next room, as he had some business with wit-
ness ; she went out and Max Kershow then said to his brother,
calling him by name, that he owned witness $100 and $50 on
two notes, and $4 for a nugget, which he wanted paid ; the
transactions of witness with Mr. Kershow were personal; he
took no collateral for the loans; the $50 matter was in May;
Friedman was frequently in the rooms of Kershow in Tor-
toni 's ; he was there in each month in 1901 prior to the death ;
sometimes he saw decedent every day for a while and some-
times two or three weeks may have elapsed ; he spent as much
as half an hour at a time with decedent; Kershow would be
smoking and drinking at times; in the opinion of Friedman
decedent was of sound mind and sober when he saw him ;
the opinion of his soundness of mind was based upon the
observation of decedent and his capacity for transacting the
business witness had with him ; Kershow was very careful in
those affairs.
Estate of Kershow. 239
Alice Kennedy and John Roland concur in the statement
that from the 1st of April until the 24th Kershow was unable
to go out at all, and that IMorgan Smith was not in that room
during- all that time, but Abraham Strauss, a cabman, tes-
tifies that on the 11th of April, 1901, he took Mr. Kershow
from the Manhattan Saloon, 25 Geary street, to Tortoni's;
there was a gentleman with him, Morgan Smith, and a lady,
whom the cabman did not know ; Strauss was called twice on
the 2-4th of April, 1901, once on that day called to Tortoni's
to take Kershow and a lady and a colored man to the Man-
hattan ; Miss Gettings was not the lady on that occasion.
Strauss knew Max Kershow two years, and saw him perhaps
five nights out of seven in that time except when decedent
was sick, and from his contact with him the cabman thought
decedent was of sound mind. Kershow paid the cabman for
the rides except the last one, which was paid for by his
brother; the witness had with him on the stand his book to
refresh his memory showing the dates of those rides.
Contestant's counsel says that the cabman Strauss evi-
dently manipulated his memorandum-book, but, while the
memoranda are crude and inartificial, the court is not con-
vinced that they were concocted or manipulated. Strauss was
to Kershow 's rooms at Tortoni 's many times ; the number was
21 on third floor ; when he took decedent home it was in the
evening of April 11, 1901 ; it was between 7 that night and
1 the next morning. Strauss was in business for himself,
hiring his own coupe, having headquarters at the south-
west corner of Grant avenue and Geary street, and his hours
were between 6 at night and half-past 5 in the morning.
Kershow was generally full when the cabman took him in his
coupe ; he was more times sober than drunk ; on the 24th of
April, 1901, the first time that day Kershow was alone when
Strauss took him from the Manhattan, the second time Mor-
gan Smith and a lady were with him.
On one of these dates, April 11, 1901, that the cabman
testifies that he took Kershow from the ^Manhattan saloon
to Tortoni's in company with ]\Iorgan Smith and a lady, there
appears to have been written and signed by decedent a check
on a blank form of the Crocker- Woolworth National Bank
240 Coffey's Probate Decisions, A-'oi.. 2.
for three hundred doUars ($300), payable to "Cash" or
order and canceled with the ])ank stamp as paid on that day.
Concerning this cheek, Morgan Smith testified that he was
present when decedent made it ont and signed it; he accom-
panied Kershow to the banl^ from the rooms at Tortoni's,
where Smith had been sojourning with decedent; the two
walked together to the bank, Kershow being feeble on his
legs and his companion assisting him along; they stopped on
the way down at the lower Louvre saloon to take a glass of
beer and then resumed their walk to the banking-house two
blocks below, on Market and Post streets junction, the Crocker
building; they entered the counting-room and decedent went
to a standing desk near the window, took out a check-book
from his pocket, made out the check, went to the teller, re-
ceived the cash and left the bank. At this time Kershow was
absolutely sober, having taken nothing except the glass of
beer. If Alice Kennedy and John Roland spoke the truth
as to Kershow 's continuous confinement in his rooms from
the 1st to the 24th of April, 1901, Strauss and Smith swore
to falsehoods concerning the incident to which they testified
as occurring on April 11, 1901.
Some circumstances seem to incline the balance against
Alice and John when their testimony is weighed against the
main witnesses for proponent. The documentary evidence
of the numerous checks drawn by decedent in the period
from April 1st to 24th, 1901, when they testify he was con-
stantly drunk, "drunk all the time," would seem to imply
that he must have been to some extent in his senses, suffi-
ciently so to understand that he had a balance at his bankers
against which he could draw efficiently. On April 1, 1901,
he drew a check payable to S. Constantini or order for $50;
on April 11th, the check already alluded to for $300; on April
16th, S. Constantini or order for $50; on April 18th, same
person or order, $50 ; on April 19th, same order, $25 ; again
on April 19th, M. J. Getz, or order $25; six checks in all
filled out and signed by his own hand.
It is idle to saj' that such acts were entirely automatic;
they were the offspring of an intelligent design ; he certainly
must have known what he was about when he carefully filled
in the spaces with the true date at the top, the accurate name
Estate of Kershow. 241
of the payee in its proper place, the amount in numerals with
the fractional signs duly noted, the amount repeated in
writing followed again by the fractions and subscribed with
his name in full. His mem.ory was in better form than that
of Roland, who swore that the decedent gave him but one
check at Tortoni's in 1901, and that he could not be mistaken
on that score; only one and that for $15; and yet two checks
were produced and identified by this witness bearing his in-
dorsement and neither of them for the amount of $15, but
for $23 and $10, and respectively bearing date March 29,
1901, and May 21, 1901. Roland swore that Kershow was al-
ways drunk when he was with him ; he was drunk when he
v>Tote those checks and in bed. Be it remembered that it was
on the date of the second of these Roland checks, May 21,
1901, that Kershow wrote the letter to his brother Carl about
the doctor's bill and other financial matters.
As against the testimony of Alice Kennedy and John
Roland that Morgan Smith was not in Kershow 's rooms on the
night of the 5th or the morning of the 6th of April, 1901,
there are corroborating circumstances and evidence to support
the statements of Smith, M^ho testified that he sent a message
on that morning to his employers by a district m^essenger, as
he did not want to emerge from the seclusion of those apart-
ments on account of an injury to his eye and he wanted some
money ; he remained inside for several days on that account,
and on the morning of the 6th he wrote a letter to A. B. Forbes
& Son, and transmitted it through the messenger, received in
reply on the same day a check, which was cashed by Caley and
Roeder, saloon-keepei's, on the corner of O'Farrell street and
Grant avenue, on the 8th of April, 1901, the intervening date,
the 7th being Sunday. As to this circumstance in corrobora-
tion of Smith we have the evidence of one of the proprietors
of the messenger bureau, 294 O'Farrell street, William K.
Lewis, who produced his books and the ticket or "tag" of a
message sent out from his office April 6, 1901, which contained
niemoranda written by this witness, indicating that at 10 :30
o'clock on that morning he sent out a message to 111 'Farrell
street, Tortoni's, by a messenger, No. 33, who returned at
11:10; Lewis gave the tag to the messenger, one Arthur Wil-
Prob. Dec, Vol. II — 16
242 Coffey's Probate Decisions, Vol. 2.
son, and received it forty minutes later from the same person.
Arthur Wilson testified that was twenty-two years old, now
an elevator boy, but in April, 1901, he was a messenger for
the California Special Messenger Service ; he received a call
for Tortoni's, and went there and got a message from a
man, whom he identified in court as J. Morgan Smith ; it was
between April 5 and 7, 1901, just after payday; the man
had on a bathrobe, had a black eye, light red hair, smooth
face ; Wilson took the message to corner California and Mont-
gomery streets; Wilson wrote on the tag in pencil after he
returned to his office the words: "California and Montgom-
ery Order": The tag reads as follows:
"No. 8490. April 6, 1901.
"California Special Messenger Service.
"Ill O'Farrell Street.
Messenger. Out. Returned. Occupied. Carfare. Total.
33 10:30 11:10 40 20
"California and Montgy.
"Order."
When Wilson went to Tortoni's he entered the bedroom,
waited there ten minutes for the man to write a letter; there
was a woman there, colored, whom Wilson took to be a matron
from her wearing a cap ; he saw no one else there.
Stanly Forbes testified that he was the junior member of
the firm of A. B. Forbes & Son, 222 Sansome street, corner
of California street ; their office was at the same place on the
6th of April, 1901, when he received a letter which he identi-
fied and which reads as follows:
"A. B. Forbes & Son, City.
"Dear Sirs:—
"Having been ill for a couple of days now and unable to get
out and down town I ask if you may send by the returning
messenger my advance, this being the 6th of the month. Be-
ing incapacitated so I am placed in rather embarrassed condi-
tion and I am greatly in need of the funds otherwise I would
wait until I were again on my feet.
"Very respectfully,
"J. MORGAN SMITH.
"April 6, 1901."
Estate of Kershow, 243
That letter came from J. Morgan Smith, and in response to
the request therein contained Forbes sent the firm check for
$30, which is as follows with indorsement:
"San Francisco, Cal., Apr. 6, 1901. No. 28381.
"The Bank of California,
"Pay to the order of
"J. Morgan Smith. $30t
"Thirty! Dollars.
"A. B. FORBES & SON.
"The Bank of
"Paid
"Apr. 8, 1901.
"California.
" (Endorsements) :
"J. MORGAN SMITH.
"CALEY & ROEDER."
The letter was handed to Forbes over his desk and he read
it and wrote check and sent it by the same messenger to J.
Morgan Smith.
The messenger located the office of Forbes and Son erro-
neously at California and Montgomery streets, whereas it was
in the Mutual Life Building, on the corner of California and
Sansome, one block distant.
Are Smith and Meadows to be believed? Is their storj' of
the execution of the paper here propounded for probate
probable? What is the evidence to challenge the veracity of
their narrative ?
At the date of the alleged will, decedent was about twenty-
nine years old, he having been twenty-eight in the July pre-
vious, according to the statement made by himself to the regis-
trar of voters :
No. 21563. Original. Affidavit:
Name in full : IMax Howard Kershow.
'Age: 28 years. Height: 5 feet 8I/2 inches.
Residence: IMaison Riche, 44 Geary street.
( i
"July 19, 1900.
"Subscribed and sworn to before officer by
"MAX H. KERSHOW."
244 Coffey's Probate Decisions, Vol. 2.
He had been well educated, having received his pn-paratory
instruction at Ogontz, near Philadelphia, and pursuing a full
course at Yale College, where he was graduated, and whence
he went to Harvard Law School, spending two years in that
institution. It will be seen that he had enjoyed exceptional
advantages of intellectual education. In addition he had
athletic tastes and training, and achieved the distinction of
amateur champion of the world in pole vaulting. Other
species of sport also had attractions for him, and gradually he
was weaned from the higher life of the intellect and became
addicted to habits and associations foreign to his natural and
inherited conditions and influences, yet he never lost entirely
his primal traits of character, although their growth and
development were apparently arrested by the forces and in-
fluences surrounding him in his changed course of life.
Drifting into life along the line of sensual indulgence, he
gradually lost his health and found his way to California in
the fall of 1898, in an endeavor to repair his wasting strength
and restore the vigor of his constitution. He found the
climate congenial and with the exception of a trip to Hono-
lulu for six weeks he made here his home. He lived first
in the Palace Hotel, afterward at the Maison Riche, and
finally took up his abode at Tortoni's tavern or lodging-house
and restaurant. Part of his time he spent also in the south-
ern portion of this state, which he found suited to his disposi-
tion, lauding highly the country around about Los Angeles
in his letters from that section. In this city, in the year 1899,
he made the acquaintance of proponent at a certain resort in
which she was a resident ; according to her recital their ac-
quaintance began at that house where an accident occurred to
him through his falling downstairs, cutting his eye and nose,
she attended him and the friendship thus commenced con-
tinued until his death; they went to Honolulu together, he
buying the tickets, and he introduced her on the steamer as
Mrs. Kershow ; they returned on the same steamer, the ' ' Aus-
tralia, " in about six weeks and went to live at the Maison
Riche restaurant.
The testimony of William Dresbach, ticket agent for the
Oceanic Steamship Company, in a measure confirms pro-
ponent's statement as to the Honolulu trip. Dresbach pro-
Estate of Kershow. 245
dueed a ticket which he said was sold by him on December
11, 1899, to the person signing on the side "M. II. Kershow."
Dresbach did not know him personally, did not know his
identity apart from the transaction; the writing "M. H. Ker-
show & \vf." on the ticket meant M. H. Kershow and wife;
the ticket produced was the first half of a round-trip ticket to
Honolulu, purchased by that person. The signature of the
purchaser was identified as that of Max PI. Kershow.
Proponent lived with decedent at the Riche until March,
1900, when she went back to her former residence and he
remained at the restaurant lodgings; she went east in April
and stayed there until the latter part of the summer, when
she returned and went again to the Riche, where he was still
abiding; there she remained with him until November, when
she went to Oregon and upon her return took up with him at
Tortoni's, where she sojourned until the following February
or ]\Iarch, when she went back to her old home and there
stopped until she went to China in May, 1901, where she
was when decedent died and where she was advised of his
death, leaving a will in which she was a beneficiary and
legatee. If proponent is to be believed, she knew nothing of
the alleged will until the information came to her in China
by cable about the 3d of July, and never saw the paper until
she returned here in the latter part of August, 1901, when it
was exhibited to her in an attorney's office.
Proponent separated from decedent several times, she said,
because he would go on a drinking spell and when she could
not correct him she would leave him, but they continued
friendly; she scolded him for his lapses, but never chastised
him except verbally ; never laid hands on him save in the
way of kindness ; after she quit Tortoni 's she still visited him
nearly every day until she went to China ; had dinner there
at times with him ; she was there every Saturday night and
remained over Sunday; used to go up there after dinner on
Saturday night; she saw Morgan Smith there frequently —
he dined there at times ; she visited decedent frequently at his
rooms in April, 1901, and saw different persons in his apart-
ments at various times, among others Morgan Smith, Carlton
Kershow, INIoses Getz and his two barkeepers, and other
friendly visitors; Morgan Smith was there on the occasion
246 Coffey's Probate Decisions, Vol. 2.
of the injury to his eye for about a week. In the opinion of
proponent decedent was of sound mind, her judgment being
based on his acts and conversation ; he drank a good deal ;
about half the time intoxicated ; sometimes sober two or three
days at a time; he M^ould sometimes drink Apollinaris in his
whisky, but considering that too expensive he substituted plain
water for dilution; he never drank absinthe while she was
with him.
It was this woman whom decedent made his residuary
legatee, describing her as his sincere and devoted friend, if
Morgan Smith is to be credited. When Smith on the evening
of the 5th of April, 1901, was requested by Kershow to draw
the will, the latter said, "I am, as you know, in love with
Miss Gettings. I do not see that I should leave anything to
my famil}^; they have not done the right thing by me; they
have tried to prevent me doing several things I wanted to
do, and, therefore, I want this to be a matter of the greatest
secrecy ' ' ; this was the gist of what decedent said that evening,
according to Smith. Meadows testified that at the time of
the execution of the will the deceased read it aloud, he re-
marked that his brother's name was misspelled and Smith
asked if he should write it over and he said "No," that they
had wasted enough time on the matter. He said that he
wanted to provide for his dear friend "Babe," which appears
to have been a pet name for proponent. Meadows asked de-
cedent if he was a lawyer ; he smiled and said he had studied
law; the witness made the inquiry because of the terms used
in the will ; after decedent signed he said he would dictate
the attestation clause and Smith then took down from dicta-
tion what is in that clause ; then Smith and Meadows sub-
scribed as witnesses ; Smith added the date in presence of
Meadows: "April the sixth, nineteen hundred and one."
Meadows said he stated the facts as they occurred at the time
of the transaction of signing the will ; everything took place
just as he testified. If, then, Meadows testified truthfully.
Max H. Kershow signed the paper propounded, knowing its
contents, in the presence of the two subscribing witnesses to
whom he declared it to be his last will and testament, re-
questing them to be the witnesses of his act, and they signed
rach in his presence and in the presence of each other, and
Estate of Kershow. 247
he was sane and sober when all this was done; but contestant
says that Dr. Wagner, John Roland, and Alice Kennedy, all
iinimpeached, prove that those two persons, Smith and
Meadows, were not there at Tortoni's or thereabouts at the
time indicated, and that this paper exhales the effluvia and
exhibits all the earmarks and indicia of fraud and fabrication.
So far as Dr. Wagner's testimony is concerned, the witnesses
Smith and Meadows may have been there without his knowl-
edge, as at the particular times to which they testify his at-
tendance was not necessary and his absence is probable ; but
not so with Alice and John, as they swear they were there all
the time and could not have been mistaken as to the facts.
The burden is upon contestant.
It may be that mere is a suspicious similarity and agree-
ment between the testimonies of Smith and jNIeadows, all the
more remarkable because neither was present at the trial when
the other was on the stand, suggesting a concert of purpose to
concoct a spurious document and swear it through the courts ;
it may be that the very means have been here employed in
this instrument which have become the "properties" and ad-
juncts of a dramatic play intended to impose upon judge and
jury the false emanation of a criminal brain ; it may be that
the coupling as coexecutor with proponent of the name of
a member of the bar of high repute, with whom decedent had
but a casual acquaintance, bearing an inherited appellation of
honor and distinction, was done with a design to give credit
and currency to a counterfeit; it may be that the bequests
to relatives were in the bill of properties drawn by the stage
director for the successful presentation of this drama of con-
temporaneous human interest — but the question is. Are these
surmises and suspicions proved directly or circumstantially?
Are they susceptible of proof?
If Smith and Meadows tell the truth, then decedent was a
sober man at the time of the execution, though suffering from
the effects of a debauch which ended on the 1st of April ; but
he was not in liquor on the 5th or 6th of April, when he
dictated and executed the will. If their story be fact and not
fiction throughout, he was at that time competent to make a
will, because it is evident from its terms that he possessed
that degree of testamentary capacitj' at the moment of making
248 Coffey's Probate Decisions, Vol. 2.
the will which entitles his act to consideration. Dr. Wagner's
opinion of what decedent's condition was when he saw him
is inconsistent with the theory that Kershow was enjoying
a lucid interval when Smith and ]\Ieadows were with him. It
has been held that if a testator, though insane, made a natural
and consistent distribution of his property, a lucid interval
at the moment of making the will might be justly presumed.
In the English case of Cartwright v. Cartwright, the judge
deciding said that the strongest and best proof that can arise
as to a lucid interval is that which arises from the act itself,
and if it can be established that it is a rational act rationally
done, the whole case is proved.
It is hardly to be contended that decedent was a lunatic ;
the most that is claimed is that his habits had so debilitated
his mind as to destroy his testamentary capacity'; but if by
the suspension of those habits for a period he so far regained
possession of his faculties as to admit of the presumption that
his testament was made during the time of his calm and clear
intermission, such testament should be held good; and, as an
ancient author affirms, although it might not be proved that
the testator had any clear ahd quiet intermissions at all, yet
nevertheless if the testament be wisely and orderly framed,
the same ought to be accepted for a lawful instrument. Thus
it might happen, in accordance with this principle, that a
man who was acknowledged to be incapable of managing his
owTi affairs would be deemed competent to dispose of his prop-
erty by will, if the document seemed a rational act rationally
done.
Alice and John testified that decedent sometimes had visions.
Dr. Wagner thought he M^as subject to hallucinations, but there
is no evidence that he had any delusion that operated on the
testamentary act. Unless the will be the very creature of a
morbid delusion put into act and energy, it is a valid will.
The mere fact of the possession of a delusion, as w^as said
in the charge to the jury in the case of Boardm-an v. Wood-
man, in New Hampshire, may not be sufficient to render a
person utterly incapable of making a valid will; a person of
sufficient mental capacity, though under a delusion may make
such a will ; if the testament be in no way the offspring of such
delusion, it is unaffected by it. It can scarcely be pretended
Estate of Kershow. 249
that Max Kershow was laboring under any delusion at the
time of the execution of this instrument. Whatever fault
may be found with his preference of proponent for residuary
legatee, he gave reasons which seemed to him sufficient, and
the court has neither right nor power to quarrel with the
moral quality of his acts ; the court may not say that he should
have made a different disposition ; it cannot make a will for
him.
According to Kershow 's conception of his obligations this
will* was natural and consistent ; he remembered his relatives
and gave their names, although through the error of the scribe
his brother's name was misspelled; he gave something to his
female servant and to his friend Smith, and the rast to the
proponent. To these persons he was bound, in the language
of the law, by ties of blood, affinity or friendship ; he had
an idea of the character and extent of his property, and he
was capable of considering the persons to whom and the
manner and proportions in which he Avished his property to
go ; these are the constituents of testamentary capacity.
The evidence of Smith and Meadows is not overborne by
that of the witnesses for contestant ; the attempt to impeach
the reputation of the latter was countered by testimony in his
favor, but the weight to be given to either or both is not
affected by that sort of evidence, one way or another, in view
of the facts and circumstances corroborative of their state-
ments already recited at length. Treating this case as if
the onus lay where the law does not place it, it is made out
in favor of proponent ; at all events, the contestant has not
proved by a preponderance of evidence the issues tendered by
his opposition to the probate of this instrument, and judgment
miist be and is entered against him.
"V^liile a Foreign Will may be subject to contest when application
is made to have it proved and recorded in a jurisdiction where the
testator left property, still it should be observed that a judgment in
a probate proceeding is a judgment in rem — that is, it determines the
status of the matter. Therefore, the judgment of a court admitting
a will to probate fixes the status of the instrument as a will, and
becomes at once conclusive upon the world of all the facts necessary
to the establishment of a will, among which are, that at the time
the will was executed the testator was of sound and disposing mind,
and was not acting under duress, fraud or undue influence. It fol-
250 Coffey's Probate Decisions, Vol. 2.
lows, for example, tliat a will executed in California by a testator
there residing, and subsequently admitted to probate in that state,
may not, when afterward admitted to ancillary probate in Montana,
where the testator left real and personal property, be contested on
the ground that the testator was not of sound mind, or acted under
duress, fraud or undue influence, the Montana statutes providing that
when such foreign will is admitted to probate in this state it shall
' * have the same force and effect as a will first admitted to probate
in this state": 1 Koss on Probate Law and Practice, 291.
When the Will of a Nonresident is Admitted to Probate on original
proceedings for the purpose of administering on his property within
the state, the decree therein binds that property here and every-
where that our courts are accorded full faith and credit, but it is not
binding as to the will itself in other jurisdictions where the deceased
may have left property, nor is it binding on the courts of his dom-
icile: Estate of Clark, 148 Cal. 108, 113 Am. St. Rep. 197, 82 Pac. 760,
1 L. R. A., N. S., 996.
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 reasonably thinking, acting and determining for himself:
Estate of Ingram, 1 Cof. Pro. Dec. 222; Estate of Scott, 1 Cof. Pro.
Dec. 271.
Estate of HIRAM A. PEARSONS, Deceased.
[No. 8694; decided October 29, 1891.]
Wills — Intention of Testator — How Determined. — In construing a
will the aim of the court is to arrive at the intention of the testator
by an examination of the will, and the circumstances surrounding its
execution, and the age and experience of the testator.
Wills. — The Provisions of the Will in this case show that the tes-
tator divided his property into two classes: First, the property held
jointly with his aunts; and, second, all other property.
Wills — Technical Words — When Given Popular Meaning. — When a
testator is not versed in the meaning of technical terms, it should
be presumed that he used his words according to their ordinary mean-
ing and in their popular sense. The words of a will should not be
subjected to such a strain as to force them out of the natural channel
of construction into the narrow legal groove in which the testator's
mind was clearly not accustomed to travel.
Wills — Technical Words — When Given Their Popular Meaning. — It
is the duty of the court to look for general intent of the testator, to
put itself in his place, to regard coexistent circumstances, and, if a
technical construction of words and phrases is at variance with the
Estate of Pearsons. 251
obvious general intention, to apply a rule of interpretation which will
give to language its ordinary effect.
Wills — Construction. — While It is True that a Will Takes Eifect
Only from the Date of the death, it may be construed according to
the circumstances and the facts existing in the mind of the testator
at the date of execution. Whenever a testator refers to an actual
existing state of things, or to what he considers to be such a state, his
language is referential to the date of the will and not to what may
exist at the time of his death, which is a prospective event.
J. H. Moore, for execiitor.
Wilson & WiLson and Lloyd & Wood, for Mrs. Kinsey.
Thomas F. Barry, for absent heirs.
I. N. Thorne, J. B. IMhoon, IMessrs. Kelly, Marble & Phipps,
and Hermann & Soto, for certain heirs.
A. N. Drown, J. E. Foulds, M. C. Hassett, Joseph Naphtaly,
A. H. Loughborough, and George W. Haight, for various or-
phan asylums.
COFFEY, J. This is an application on the part of the
executor of the will of Hiram A. Pearsons, deceased, for
a construction of that instrument, presenting for solution
by the court certain questions which may be stated briefly as
follows :
1. What, if any, real property described in the will was
held jointly by testator wdth Betsey F. Mathewson and Polly
Barton ?
2. Which are to be designated as the orphan asylums of
San Francisco, according to wilH
3. Who are the legatees and devisees of specific bequests
and devises, and to what are they entitled as distributees?
4. What real estate shall be sold to pay bequests ?
5. Who are the next of kin and heirs at law?
6. What portions, if any, of testator's estate were and are
by the provisions of will devised or bequeathed, and what
portions were not so devised or bequeathed ?
Hiram Arthur Pearsons died at Chicago, Illinois, July 7,
1889, leaving an olographic will, made in April, 1882, and
being at the time of his death twenty-eight years of age.
252 Coffey's Probate Decisions, Vol. 2.
Upon the hearing of the petition for the construction of
this will, it was established that his father, Iliram Pearsons,
deceased, owned in the block bounded by Clay, East, Mer-
chant and Drumm streets, a frontage of one hundred and
seventy-eight feet on Clay, running back to Merchant, and
bounded on the east by East street, and had deeded to H. A.
Pearsons the westerly sixty-eight feet (about) thereof, and
had devised the remaining one hundred and ten feet to
said H. A. Pearsons, his son, and his widow, in equal un-
divided shares; that said Hiram Pearsons died testate in
1870, leaving him surviving his said widow, Ann Charity
(sometimes called Charity Ann) Pearsons, and his son, said
H. A. Pearsons ; that said Ann Charity Pearsons died testate
in 1875, and that in her will, duly admitted to probate, it
was provided that her two sisters, Polly Barton and Betsey
Frances Mathewson, should receive the income from her said
undivided one-half of said one hundred and ten feet during
the term of their natural lives, or of the survivor of them,
with remainder over to H. A. Pearsons ; that up to the time
of the death of said sisters the income of said property was
divided equally between said H. A. Pearsons and said sisters,
and the survivor of them ; that June 30, 1889, the survivor
of said sisters died. It was also shown upon said hearing
that there are orphan asylums of various religious denomina-
tions, some in San Francisco and others in Marin and San
Mateo counties, some being in existence at the time the will
was executed, and some established since said date, but prior
to the death of said Pearsons, and there being more than one
orphan asylum controlled by certain religious denominations,
although organized independently.
It was also shown that among the claimants, as heirs, are
two half-sisters of Iliram Pearsons, father of Hiram Arthur
Pearsons, and five brothers and sisters of Ann Charity Pear-
sons, mother of deceased, and also that there are certain chil-
dren of deceased, uncles and aunts of Hiram Arthur Pearsons.
The will in question is in the words and figures following,
to wit :
"In the Name of God, Amen: I, Hiram A. Pearsons, of
the City and County of San Francisco, and State of Califor-
Estate of Pearsons. 253
nia, being of sound mind and memory, and considering the
uncertainty of life, do therefore make, ordain, publish and
declare this to be my last will and testament. That is to
say—
"First: I give, devise and bequeath unto Betsey Frances
Mathewson and Polly Barton, my aunts, the following de-
scribed lots and pieces of land situated in the City and
County of San Francisco, State of California, and laid down
and described on the official map of the said city as follows,
to wit : Commencing at a point on the south line of Wash-
ington street, which is one hundred and thirty-seven (137)
feet six (6) inches east from the intersection of the east line
of Drumm street where it intersects the south line of Wash-
ington street ; thence running easterly on the southerly line of
Washington street two hundred and ninety (290) feet to
the eastern water front of said city; thence southeasterly
along said east water front one hundred and forty-two
(142) feet to the north line of Merchant street; thence in a
western direction on what is known as the northern line of
Merchant street, v.'hich line is distant one hundred and fif-
teen (115) feet from the southern line of Washington street,
and running parallel therewith, to a point which is on said
northern line of Merchant street and distant one hundred
and thirty-seven (137) feet six (6) inches east of the eastern
line of Drumm street; thence north at right angles to Wash-
ington street one hundred and fifteen feet to the point of
commencement.
"Second: I do give, devise and bequeath unto Betsey
Frances IMathewson and Polly Barton, my aunts, all real
property which I hold jointly with them. And I direct that
in the event of the death of either Betsey Frances Mathew-
son or Polly Barton prior to that of my own, all property of
whatever nature herein bequeathed to them shall revert and
vest in the survivor, her heirs and assigns forever. And
furthermore : In the event of the death of both Betsey
Frances Mathewson and Polly Barton prior to my decease,
the aforesaid property, otherwise bequeathed to them, shall
be sold at public auction to the highest cash bidder, the pro-
ceeds of said sale to be equally distributed among the difi'er-
254 Coffey's Probate Decisions, Vol. 2.
ent orphan asylums of the City and County of San Fran-
cisco. And said asylums I request to be designated by the
Judge of the Probate Court.
"Third: I do give, devise and bequeath unto Isabella
Rogers Kinsey, wife of my former guardian, her heirs and
assigns forever, all that property which is owned by me in
the block bounded on the south by Clay street, on the west
by Drumm street, on the north by Merchant street, and on
the east by East street; excepting therefrom that portion
which I hold jointly with Betsey Frances Mathewson and
Polly Barton, and which has hereinbefore been bequeathed to
them.
' ' Fourth : I do give, devise and bequeath unto A. G. Kin-
sey, my former guardian, his heirs and assigns forever, all
my right, title and interest in blocks numbered 35, 36 and
37, at North Beach.
"Fifth: I do give, devise and bequeath unto Laura M,
Witty, of Modesto, Stanislaus Co., Cal., daughter of Mrs.
J. E. Hyslop, of the same place, all my stock in the Spring
Valley Water Company, of the City and County of San
Francisco, and I direct that in the event of my not being
possessed of any of said stock at the time of my death then
ten thousand ($10,000) dollars is to be paid to the said
Laura M. Witty; or if there should not be enough of said
stock at its market value at the time of my death to amount
to ten thousand ($10,000) dollars, then the deficiency is to
be paid to the said Laura M. Witty in cash, together with
whatever stock there may be. But if the said Laura M.
Witty should not survive me then this bequest (the 'Fifth')
is to be distributed to orphan asylums as hereinbefore re-
quested.
"Sixth: I do give, devise and bequeath unto Laura M.
Witty five thousand dollars, to be held in trust and invested
in some safe security by her mother, ]\Irs. J. E. Hyslop, who
shall receive one-half of the interest thereon, if any there be,
until the expiration of five years after my decease, when the
remaining one-half of the interest, together with the prin-
cipal, shall be given to the said Laura M. Witty. Or, in the
event of the death of Mrs. J. E. Hyslop prior to that of the
Estate of Pearsons. 255
said Laura M. Witty, the two preceding bequests ('Fifth'
and 'Sixth') are to be paid from the moneys standing to my
credit ; and, if not sufficient, then from a fund created by the
sale of notes, securities or other property.
' ' Seventh : I do give, devise and bequeath the remainder
of my property of whatever kind to Betsey Frances Mathew-
son and Polly Barton, subject to the reversion before stated.
All the above real property being situated in the City and
County of San Francisco, State of California.
"Eighth: I do give, devise and bequeath unto T. C. Hill,
of Western Springs, Illinois, all my right, interest and title
of whatever kind to all real property in Cook County, Illinois.
(To be used for charitable purposes.) Should any devisee or
devisees of this will attempt to annul or set aside any bequest
herein made, then the person so doing shall forfeit his or
her bequest to the person whose bequest is so attacked. This
I declare to be an olographic will. Betsey Frances Mathew-
son is the maiden name of Mrs. Julius T. Newell. And I
do hereby nominate and appoint Elliot J. Moore the exec-
utor of this my last will and testament, and I do release
him from the necessity of giving any bond or bonds as such
executor.
"H.A.PEARSONS. (Seal.)
' ' San Francisco, August 9, 1882.
"San Francisco, April 13, 1885.
"The Fifth bequest, commencing on the second line of
fourth page, and also the following, the Sixth, I now declare
to be annulled. And I further direct that the benefits of
these bequests (the Fifth and Sixth) shall be given to my
aunts according to the provision of the seventh clause.
" H. A. PEARSONS. ( Seal. ) ' '
While the whole of the will is hereinabove set forth, there
are only two clauses which it is necessary to construe in this
proceeding, although it may be remarked that it is estab-
lished by evidence that the testator left legal heirs him sur-
viving ; but this is not a proceeding to establish heirship, and
the evidence in that behalf may be disregarded for the pres-
ent purpose, nor need there now be any determination by
this court as to the particular orphan asylums included within
256 Coffey's Probate Decisions, Vol. 2.
the terms of the bounty of the testator, as any opinion upon
these points would be premature and not binding when the
matter shall come before the court in proper form for final
decision.
The clauses of the will which it is necessary now to con-
strue are as follows :
"Second: I do give, devise and bequeath unto Betsey
Frances Mathewson and Polly Barton, my aunts, all real
property which I hold jointly with them ; and I direct that
in the event of the death of either Betsey Frances I\Iathew-
son or Polly Barton prior to that of my own, all property
of whatever nature herein bequeathed to them shall revert
and vest in the survivor, her heirs and assigns forever; and,
furthermore, in the event of the death of both Betsey Frances
Mathewson and Poll^' Barton prior to my own decease, the
aforesaid property otherwise bequeathed to them shall be
sold at public auction to the highest cash bidder, the pro-
ceeds of said sale to be equally distributed among the differ-
ent orphan asylums of the City and County of San Francisco ;
and said asylums I request to be designated by the Judge of
the Probate Court.
"Third: I do give, devise and bequeath unto Isabella
Rogers Kinsey, wife of my former guardian, her heirs and
assigns forever, all that property which is owned by me in
the block bounded on the south by Clay street, on the west
by Drumm street, on the north by Merchant street, and on
the east by East street, excepting therefrom that portion
thereof ivhicJi I hold jointly with Betsey Frances Mathewson
and Polly Barton, and which has hereinbefore been be-
queathed to them."
"Seventh: I do give, devise and bequeath the remainder
of my pro])ei-ty, of whatever kind, to Betsey Frances Mathew-
son and Polly Barton, subject to the reversions before stated."
First — As to the construction of the devise to Isabella
Rogers Kinsey :
The three clauses above set forth, when read together —
and they are the only clauses bearing upon this subject —
show that the testator divided his property into two classes:
First, the property held jointly with said Betsey Frances
Estate of Pearsons. 257
Mathewson and Polly Barton; and, second, all other prop-
erty. The aim of this court is to arrive at the intent of
the testator, by an examination of the will and the circum-
stances surrounding its execution, and the age and experience
of the testator; and no authorities need be cited to sustain
this proposition.
As one of the devisees named in said will, and under the
facts admitted and claimed to have been proved at the time
of the hearing of the petition of the executor for the con-
struction of the will of said deceased, Mrs. Isabella Rogers
Kinsey claims the following described lot of land in the city
and county of San Francisco :
Commencing at a point on the northerly line of Clay street
distant two hundred and forty-seven feet and three inches
easterly from the corner formed by the intersection of said
northerly line of Clay street with the easterly line of Drumm
street, and running thence easterly along said northerly line
of Clay street one hundred and seventy-eight feet and nine
inches ; thence at a right angle northerly and parallel with
said easterly line of Drumm street one hundred and fifteen
feet to the southerly line of INIerchant street; thence run-
ning westerly and along said southerly line of Merchant
street one hundred and seventy-eight feet and nine inches;
thence at a right angle southerly and parallel with said
westerly line of Drumm street one hundred and fifteen feet
to said northerly line of Clay street and the point of com--
mencement.
In whom was the fee to this tract or parcel of land vested
on July 7, 1889, the date of the death of Hiram Arthur
Pearsons ?
Upon this question, among others, the executor seeks the
instruction and advice of the court.
If it shall be determined to have been in Hiram Arthur
Pearsons at the time of his death, it is contended by her
counsel that upon his death the title to all of it vested eo
instanti in Isabella Rogers Kinse^^ subject only to the usual
probate administration upon his estate in this court.
To arrive at a conclusion as to whom the fee to this parcel
of land was vested in on July 7, 1889, the date of the death
Prob. Dec, Vol. II — 17
258 Coffey's Probate Decisions, Vol. 2.
• of Hiram Arthur Pearsons, it will be necessary to look care-
fully into the history of its title as disclosed by the record
before the court.
On November 25, 1851, Hiram Pearsons, the father of
Hiram Arthur Pearsons, was the owner in fee simple of the
whole of said tract of land.
In 1854 the said Hiram Pearsons intermarried with Ann
Charity Mathewson, and thereafter, in 1860, there was born
to them a son, Hiram Arthur Pearsons, whose estate is now
being administered in this court, and in which estate this
proceeding is had.
The entire property above described was, therefore, the
separate property of Hiram Pearsons, having been acquired
by him three years prior to his marriage to Ann Charity
Mathewson.
On April 12, 1866, Hiram Pearsons made his last will and
testament, wherein he gave and bequeathed all the rest,
residue and remainder of his estate, including all the tract
of land above described, to his wdfe, Ann Charity Pearsons,
and his son, Hiram Arthur Pearsons, share and share alike.
On April 30, 1867, one year and eighteen days after mak-
ing this will, Hiram Pearsons made, executed, delivered and
caused to be recorded a deed in writing under his hand and
seal, in due form of law, conveying to his said son, Hiram
Arthur Pearsons, a portion of the tract of laud above de-
scribed, and which portion so conveyed to his son was, and
is, particularly described as follows, to wit:
Commencing at a point on the northerly line of Clay
street distant two hundred and forty-seven feet and three
inches easterly from the corner formed by the intersection
of the northerly line of Clay street with the easterly line
of Drumm street, and running thence easterly along the
northerly line of Clay street sixty-eight feet and nine inches ;
thence at a right angle northerly and parallel with said east-
erly line of Drumm street one hundred and fifteen feet to
the southerly line of Merchant street ; thence running west-
erly along said southerly line of Merchant street sixty-eight
feet and nine inches; and thence at a right angle southerly
and parallel with said easterly line of Drumm street one
Estate of Pearsons.
259
hundred and fifteen feet to said northerly line of Clay street
and point of commencement.
By virtue of this deed of conveyance from Hiram Pear-
sons to Hiram Arthur Pearsons the tract of land was segre-
gated, and as to the legal title it thereafter stood as per this
diagram
DRUMM STREET.
OX
fa
Eh
O
4-N
115
Deeded by Hiram Pearsons to his son
Hiram Arthur Pearsons, on April 30,
1867.
2 Separate property of Hiram Pearsons
--I upon which his will was thereafter
operative.
o
>
73
?d
EAST STREET.
On August 11, 1868, one year, three months and eleven
days after making this deed to his son, Hiram Arthur Pear-
sons, Hiram Pearsons, the father, died, leaving the above-
mentioned will, dated April 12, 1866, as his last will and
testament, and leaving surviving him, as his only heirs at
law, his widow, Ann Charity Pearsons, and his said son,
Hiram Arthur Pearsons, his and their only issue.
By decree of final distribution of the estate of Hiram Pear-
sons, all the rest, residue and remainder of his estate was
distributed, in the language of the decree of distribution, to
Ann Charity Pearsons and Hiram Arthur Pearsons, "share
and share alike, each of them being entitled to one equal
260
Coffey's Probate Decisions, Vol. 2.
undivided one-half part thereof," and thereupon the tract
of land originally hereinabove described as being 178.9x115,
stood as to title as per this diagram :
DilUMM STREET.
^-N
115
QO
Hiram Arthur Pearsons, by deed from
his father, Hiram Pearsons, April
30, 1867.
Undivided one-half each in Ann Char-
ity Pearsons and Hiram Arthur
Pearsons, under decree of distribu-
tion of estate of Hiram Pearsons.
Pi
a
>
s
EAST STREET.
Notwithstanding the fact that Hiram Pearsons owned only
at the time of his death the lot fronting one hundred and
ten feet on Clay street, with a uniform depth of one hun-
dred and fifteen feet back to Merchant street, yet through
error the whole lot, 178.9x115, was included in the inventory
of his estate, and this error was perpetuated throughout the
entire administration of his estate down to and including
the decree of distribution of his estate.
In the decree of distribution of the estate of Hiram Pear-
sons, dated May 8, 1871, we find the following:
"Third: All the rest and residue of said estate of said
decedent, both real and personal, remaining in the hands
of said executrix and executors and particularly described
as follows, viz. :
Estate of Pearsons. 261
"All that certain lot, piece or parcel of land situated in
said City and County of San Francisco, commencing on the
northerly line of Clay street at a point distant two hundred
and forty-seven and a quarter (2471/4) feet easterly from
Drumm street, running thence easterly along said line of
Clay street to East street, thence northerly along East street
to Merchant street, thence westerly along Merchant street to
a point opposite the place of beginning, thence southerly
parallel with Drumm street to the place of beginning, except-
ing, however, the half of a fifty-vara lot, conveyed by said
Hiram Pearsons in his lifetime to the Clay Street Wharf
Company, by deed dated February 6, 1855, and recorded in
the Recorder's office of said city and county, in Liber 50 of
Deeds, page 413.
"Also: [Then follows a description of a large quantity
of other real and personal property, and the decree then
continues and concludes as follows:]
"Is hereby assigned, set over, transferred and distributed
to said Ann C. Pearsons, the widow, and said Hiram Arthur
Pearsons, the minor son, of said Hiram Pearsons, deceased,
share and share alike — that is to say, the one equal undivided
half part thereof to said Ann C. Pearsons, and the other equal
undivided half part thereof to said Hiram Arthur Pearsons.
"And it is further ordered: That said executrix and exec-
utors, upon paj^ment and delivery of said residue as herein-
before ordered and decreed, and upon filing due and proper
vouchers and receipts therefor in this Court, be all and each
of them fully and finally discharged from their trust as such
executrix and executors."
It is claimed that this decree was operative only as to the
lot of land fronting one hundred and ten feet on Clay
street, with a uniform depth of one hundred and fifteen feet
back to Merchant street, and that the decree could in no
way affect the legal title to the lot 68.9x115, deed by Hiram
Pearsons in his lifetime, on April 30, 1867, to his son, Hiram
Arthur Pearsons. At the time of this distribution of Hiram
Pearsons' estate, his son, Hiram Arthur Pearsons, was but
eleven years old.
262 Coffey's Probate Decisions, Vol. 2.
Notwithstanding the terms of the decree of distribution
of Hiram Pearsons' estate, it is claimed that the minor son,
Hiram Arthur Pearsons, continued to be the sole owner of
the lot fronting on Clay street, 68.9x115, previously deeded
to him by his father on April 30, 1867, and by virtue of
the decree of distribution in his father's estate he further
became the owner, in the language of the decree, of "an
equal, undivided one-half part" of the lot fronting on Clay
street, 110x115, immediately adjoining on the east his sepa-
rate property 68.9x115, above referred to.
Of the original lot of land fronting on Clay street, 178.9x
115, it seems, therefore, that after the decree of distribution
of the estate of Hiram Pearsons, his son, Hiram Arthur
Pearsons, was the sole owner of the most westerly 68.9x115,
and was also the owner of an equal undivided one-half in
common with his mother, Ann Charity Pearsons, of the ad-
joining 110x115, and equal in size to a lot 55x115.
The title to the remaining undivided lot, equal in size to
55x115, was then vested in Ann Charity Pearsons.
With this understanding of the then condition of the legal
title to the land in question, we pass on to the next chronolog-
ical event.
On May 16, 1874, Ann Charity Pearsons made her last
will and testament, wherein, among other things, she pro-
vided as follows :
"I do give, devise and bequeath unto my beloved son, Hiram
Arthur Pearsons, all real and personal property which I own
joi^itly with him, together with the family portraits and silver-
ware and my small diamond ring."
The testatrix also made the following provision :
"I give, devise and bequeath to my beloved sisters, Polly
Barton and Betsey Frances Mathewson, for their use during
the term of their natural lives, and to the survivor of them,
share and share alike, all my interest in (describing other
property), .... and also all the income from all the prop-
erty which I own jointly with my son, Hiram Arthur Pear-
sons. And I empower the said Polly Barton and Betsey
Frances Mathewson, at their option, to sell and convert into
cash any and all of said stocks, notes, securities and prop-
erty, and to invest the proceeds arising therefrom as they shall
Estate of Pearsons. 263
deem best, and to enjoy the income thereof during their lives,
and to the survivor of them. And I direct that in the event of
the death of either of the said Polly Barton or Betsey Frances
Mathewson, the survivor shall have full power to sell said
property and invest the proceeds as she shall deem proper,
the income arising therefrom to he for her sole use and benefit,
and after the death of such survivor the whole of said prop-
erty or proceeds thereof shall revert to my son, Hiram Arthur
Pearsons."
Ann Charity Pearsons died in the same year, after having
made this will, leaving surviving as her sole heir at law her
said son, Hiram Arthur Pearsons. Her will was in due time
admitted to probate, and her estate was finally distributed on
December 22, 1875.
The only interest that Ann Charity Pearsons had at the
time of her death in the lot of land fronting one hundred
and ten feet on the north side of Clay street, and running
through with a uniform depth of one hundred and fifteen
feet to Merchant street, was an "equal undivided one-half
part thereof, ' ' and yet the decree of distribution in her estate
provided, among other things, as follows :
"And also to Polly Barton and Betsey Frances Mathewson
to their use during the term of their natural lives, share and
share alike, and to the survivor of them, all the income from,
the undivided half of all the following described property
situated in the City and County of San Francisco, and State
of California, to wit:
"That lot commencing on the north line of Clay street at
a point two hundred and forty-seven feet three inches from
the northeast corner of Drumm and Clay streets ; running
thence easterly along the north line of Clay street 176 96/100
feet ; thence at right angles northerly one hundred and four-
teen feet to Merchant street 176 96/100 feet ; thence at right
angles southerly one hundred and fourteen feet to the point
of beginning; also .... and in the event of the death of
Hiram Arthur Pearsons before the deaths of Polly Barton
and Betsey Frances Mathewson, or either of them, the above
mentioned property, and the w^hole thereof, shall go to the
said Polly Barton and Betsey Frances Mathewson, or the
survivor of them, absolutely, share and share alike, their or
264 Coffey's Probate Decisions, Vol. 2.
her heirs or assigns forever. And to Hiram Arthur Pear-
sons, the silverware, family pictures, and the small diamond
ring, and all the property hereinbefore described, subject only
to the rights, interests and uses hereinbefore reserved to Polly
Barton and Betsey Frances Mathewsmi, or to the survivor
of them, and also all the property, real, personal and mixed,
hereinbefore described, or the proceeds thereof remaining
after the death of Polly Barton and Betsey Frances Mathew-
son, and the survivor of them, or to the survivor of them., and
also all the property, real, personal and mixed, hereinbefore
described, or the proceeds thereof remaining after the death
of Polly Barton and Betsey Frances ]\Iathewson, and the sur-
vivor of them, and also any other property not now knoAvn or
discovered which may belong to said estate, or in which the
said estate may have any interest."
It is claimed by counsel for Mrs. Kinsey that Ann Charity
Pearsons, at the time of her death in 1874, had no interest
in the lot of land 68.9x115, which had been conveyed on April
30, 1867, by Hiram Pearsons to his minor son, Hiram Arthur
Pearsons, and as to the adjoining lot of land, 110x115, she
only owned an equal undivided one-half with her son, Hiram
Arthur Pearsons. At this time, December, 1875, the son Avas
fifteen years of age.
It appears that the executor and his attorney in this
present proceeding, at the time of filing the petition for the
construction of the will of Hiram Arthur Pearsons, were still
laboring under an erroneous impression as to the extent of
the interest of Polly Barton and Betsey Frances Mathewson
in this property during their lives. The petition, as originally
filed, informed the court that they had a life interest in the
income of one-half of the entire lot of land fronting on Clay
street, 176 96/100x114, but if this were error it was corrected
by an amendment to the original petition, and now, for the
first time since the death of Hiram Pearsons, on August 11,
1868, more than twenty-two years ago, it is claimed that the
probate record of the condition of the title to this lot of land
178.9x115 is correct, and as it always should have been.
During the lifetime of Polly Barton and Betsey Frances
Mathewson they had the right only to claim the income from
one-half of this lot 110x115, equal to a lot in size 55x115, and,
Estate of Pearsons. 265
upon the death of the survivor of these two, Hiram Arthur
Pearsons had the right to keep all the income for himself
and in his own right.
This is the contention of counsel for Mrs. Kinsey, who
claim, also, that the fee to the lot 110x115 was not disturbed
or affected in any way by the death of the aunts, because the
legal title to the entire piece had always been vested in Hiram
Arthur Pearsons from the time of the death of his mother
in 1874. The aunts practically had an annuity out of the
land during their lives, and nothing more.
Polly Barton died May 25, 1888, and Betsey Frances
Mathewson on June 30, 1889, neither of them leaving any
surviving spouse, issue or lineal descendants, and on July 7,
1889, just one week after the death of the survivor of these
two aunts, Hiram Arthur Pearsons passed away.
It is contended by counsel for Mrs. Kinsey that it was the
intention of the testator to confirm to the aunts the income
for their lives, and to perpetuate and secure it to them dur-
ing their natural lives, so that they could rely upon it in
the same manner as if he had survived.
It is contended, also, by counsel for ]\Irs. Kinse.y that the
testator, Hiram Arthur Pearsons, never did "hold jointly"
any real property with Betsey Frances Mathewson and Polly
Barton, or with either of them, and it is claimed that to ' ' hold
jointly" necessarily means ownership and right of possession,
and upon this interpretation, as supported by the evidence
as to the facts, depends the claim of Mrs. Kinsey to the whole
of the parcel of land described in the third clause or para-
graph of the will.
It seems to me that the adoption by the court of this view
would not effectuate the intention of the testator. He evi-
dently drew a distinction between "owning" and "holding,"
and although the second clause of the will may be inoperative,
it is properly invoked to aid in the interpretation of the
language of the third clause.
While it is true that a will takes effect only from the date
of the death, it may be construed according to the circum-
stances and the facts existing in the mind of the testator at
the date of execution. Whenever a testator refers to an ac-
tually existing state of things, or to what he considers to
266 Coffey's Probate Decisions, Vol. 2.
be such a state, his language is referential to the date of
the will, and not to what may exist at the time of his death,
which is a prospective event.
In the construction of the description of the property de-
vised to Mrs. Kinsey, "the court must assume, as nearly as
possible, the position of the contracting parties, and con-
sider the circumstances of the transaction between them, and
then read the words used in the light of these circumstances. ' '
There must be, in the first instance, a specific thing,
specifically described, and a particular person or class clearly
indicated. Here we have, as the first, "all that property
which is owned by me" in the Clay street block, and that is
given to the particular person described as "Isabella Rogers
Kinsey, wife of my former guardian."
It is claimed by counsel for Mrs. Kinsey, in construing
this specific devise, that this clause of the will spealvs from
the death of the testator as if it had been written immediately
before his death. But I have attempted to show that in this
ease such a rule cannot apply, and that we should consider
the circumstances as they existed at the time of the execution,
or as the testator understood them to exist, and so consider-
ing this devise to Mrs. Kinsey, independent of the exception,
we have, first, that which he held jointly with them devised
to his aunts; secondly, that which was owned absolutely de-
vised to Mrs. Kinsey.
In this case, it seems to me, the testator did not design to
devise this whole lot to Mrs. Kinsey, as he first gave it to
his aunts and then excepted it out of the specific devise to
Mrs. Kinsey.
It is not difficult to determine what property was referred
to by testator in the second clause of the will.
As to his other property, a portion is located in the block
bounded by East, Merchant, Drumm and Clay streets, in San
Francisco. He owned sixty-eight and nine-tenths feet front-
age off Clay street, absolutely free from interference by any-
one, but immediately adjacent to it was another tract of
nearly one hundred and ten feet frontage on Clay street, of
which he owned an undivided one-half, with remainder over
of the other half upon terminations of the life estates of
Betsey Frances Mathewson and Polly Barton. This tract he
Estate of Pearsons. 267
had already given to his aunts, and, in case of their not sur-
viving him, to charitable institutions.
He desired to give a specific tract to INIrs. Kinsey, and he
selected the sixty-eight and nine-tenths feet above described.
In clause 3 he gives all the property which is owned by him
in said block to Isabella Rogers Kinsey, except the portion
held jointly with his aunts and before bequeathed to them.
What is his intent, and does he express it? He does not
specifically, by metes and bounds, locate the tract devised to
Mrs. Kinsey, but he definitely cuts it out by segregating it
from the portion held "jointly," as he calls it, with his aunts.
If they had lived, I do not think that Mrs. Kinsey could
claim the whole tract as against them, or that she would be
entitled to more than sixty-eight and nine-tenths feet. Then,
if this be so, where is the intent, in the event of their death
before him, that ]Mrs. Kinsey was to succeed to their devise?
He had already provided that in such case the orphan asylums
should be the objects of his bounty, and not Mrs. Kinsey.
This is one of the cases where a will speaks from its date,
because it is manifest that the testator refers to an actually
existing state of things.
In fact, the exceptions are not intended to provide for an
extension of the devise to IMrs. Kinsey, but simply to define
and limit the property devised. They do not refer to any-
thing except the property, and therefore, as such words of
description and definition, they must have the same meaning,
whether these two aunts of testator lived or died. They were
designed to make clear a devise of sixty-eight and nine-tenths
feet, and did so at the time the will was made, and
merely descriptive of it. While testator has not used the best
method of expressing his intent, he has done so clearly, and
no technical construction should be resorted to to defeat it.
In clause 7 he disposes of his whole residuum to his aunts,
subject only to the reservations included in clause 2. So that,
as far as the Kinsey devise is concerned, it seems clear that
it was his intent to specifically cut out from all his property
the portion owned in severalty by him, and in fee, in the block
bounded by Drumm, Merchant, East and Clay, at the time of
making the ^all, and devise it to the vnie of his guardian;
and, further, that in no circumstances was this devise to be
268 Coffey's Probate Decisions, Vol. 2.
extended, and thus devised sixty-eight feet only to Mrs.
Kinsey.
While it is doubtless true, as is so strongly set forth by
counsel for Mrs. Kinsey, that this testator had before him,
when drawing his own will, the models left by his father and
mother, and closely patterned after them, it is also true that
he was a layman and not a lawyer, a very young man, and,
albeit a man of intelligence and considerable cultivation, he
w^as not versed in the meaning of technical terms, and it
should be presumed used words according to their ordinary
meaning and in their popular sense. It seems to me that the
words of this will, upon which such an elaborate argument
is based, should not be subjected to such a strain as to force
them out of the natural channel of construction into the
narrow legal groove in which the testator's mind was clearly
not accustomed to travel. It is the duty of the court to look
for his general intent, to put itself in his place, to regard co-
existent circumstances, and, if a technical construction of
words and phrases is at variance with the obvious general in-
tention, to apply a rule of interpretation which will give to
language its ordinary effect.
It follows from the foregoing, if the views of the court be
correct, that it should be judicially determined and declared,
and it is so determined and declared, in answer to the prayer
of the petitioner executor, that the testator, at the time he
drew the will before this court for construction, owned the
sixty-eight and nine-tenths foot lot in severalty, and he held
the one hundred and ten foot lot jointly with his aunts, in
the same manner that he had formerly held it with his mother ;
that by his will testator devised this last mentioned lot to his
aunts in ease they survived him, otherwise to the orphan
asylums ; that by the will this lot was expressly excepted from
the devise to Mrs. Isabella Rogers Kinsey; that the devise to
Mrs. Kinsey is a specific devise intending to operate only on
the sixty-eight and nine-tenths foot lot, and that testator in-
tended to and did except from the devise the one hundred and
ten foot lot which he had already devised to his aunts.
The Principal Case was before the supreme court of California in
113 Cal. 577, 45 Pac. 849; 119 Cal. 27, 50 Pac. 929.
Estate of Ackerman. 269
Estate of FRANCISCA ACKERMAN, Deceased.
[No. 4630; decided December 27, 1888.]
Homestead — Right of Surviving Husband. — Where a wife declares
a homestead upon the community property, and after her death the
surviving husband sells such property, he has no riglit to have a pro-
bate homestead set apart to him from her separate estate.
Francisca Ackerman died on September 17, 1885, and on
December 9, 1885, Charles Ackerman, her surviving husband,
was appointed administrator of her estate, which consisted
entirely of her separate property. On July 21, 1888, he filed
a petition for a homestead out of the estate. The -wife had
declared a homestead upon a portion of the communit}^ prop-
erty, and this homestead existed at the time of her death, but
was thereafter, and before the filing of this petition, sold by
the surviving husband.
Nagle & Nagle, for surviving husband.
W. H. Payson, for certain heirs.
COFFEY, J. This controversy seems to turn upon the
question whether applicant, the surviving husband of the de-
cedent, is entitled to a "probate" homestead out of the
separate estate of his deceased spouse — a statutory homestead
having been selected out of the community property, during
her lifetime, which survived to the husband. There may be
other points, but, in view of the determination of the court,
it is not necessary to consider them. The point of doubt and
difficulty which has justified unusual investigation and de-
liberation is the one noted hereinabove ; and it has been very
ably presented and contested in the arguments, oral and
written, of the respective counsel. The question is for the
first time presented to the court in this form. It is, there-
fore, novel, as it is important ; and it should be, as it has
been, carefully examined. If resolved in favor of the oppo-
nents, it is conclusive and the other objections are not material.
The view so very fully and forcibly presented by the counsel
for opponents is correct, in my opinion, to this extent at
least: It is enough that here a homestead was selected out of
270 Coffey's Probate Decisions, Vol. 2.
the common property during the marriage and existed at
the time of the death of the decedent, and that in such a
case as this the surviving husband or wife can only have that
homestead, so selected and declared of record, set apart to
him or her. The practice of the court accords with this view
of the law. It is immaterial, so far as this court in probate
is concerned, that the title to the common property, which is
claimed to comprehend the homestead, was succeeded to abso-
lutely by the surviving husband. This court in probate does
not deal with the question of title to property ; it has been
held that in the very case of setting apart a probate home-
stead (so called) the court cannot adjudge in whom the title
vests. But aside from the question of title, certain princi-
ples have been often reiterated and acted upon with respect
to homesteads to be set apart by this court, and the rights of
claimants thereto, which may be summed up in one statement :
The source and measure of this court's jurisdiction is section
1465, Code of Civil Procedure, which provides that, where a
homestead has been selected out of community property, such
homestead so selected must be set apart to the surviving hus-
band or wife. It does not affect the question that, as in this
case, the husband subsequent to the decease of his spouse
sold the community property; the decisive fact is that the
homestead existed in the community property at the time of
the wife's death.
Application denied.
The Principal Case was Affirmed by the Supreme Court in 80 Cal.
208, 13 Am. St. Rep. 116, 22 Pac. 141, where it is held that upon the
death of either spouse, a homestead declared upon community prop-
erty vests absolutely in the survivor, still retaining its homestead
characteristics; and if the survivor afterward sells the same, he is
not entitled to have another homestead set apart to him out of the
separate estate of the deceased. ^
Estate of Herold. 271
Estate op MARY PIEROLD, Deceased.
[No. 11,096; decided August 14, 1891.]
Administration — Right of Minor to Letters of Administration. —
Minors are entitled to letters of administration on an equality with
persons of full age, except that the letters cannot issue to them di-
rectly but to their guardians for them.
Administration — Right of Minor to Letters. — The right of minor
children (their father being dead) to letters of administration on the
estate of their mother comes into being at the moment of her death,
and not at the time their guardian is appointed.
Administration — Right of Minor to Letters as Against Public Ad-
ministrator. — Where minors are the sole heirs to their mother's estate,
they are entitled to letters of administration thereon as against the
public administrator.
Administration — Priority as Between Petitions Filed at Different
Times. — The fact that the public administrator files the first petition
for letters of administration does not give him a better right than
the guardians of the minor children of the deceased, whose petition
is filed a few days later. The statute nowhere provides for or recog-
nizes any superior right for any such reason.
Administration — What Law Governs. — Where Applicants Claim Un-
der Different Classes, the law at the time of the hearing governs;
a person may be entitled to letters at the time of filing his petition
under the first class, and yet, at the time of hearing, the statute may
be so changed that he will be in the second class, and a person who
was in the fifth class might, by such change, then be in the first
class.
Mary Herold died intestate on June 20, 1891, leaving a
number of minor children who were her sole heirs. Her
husband had died before her. On June 23, 1891, John D.
Feldmann and Conrad Viereckt filed their petition for letters
of guardianship of the persons and estates of the minor
children. They were appointed such guardians, and letters
of guardianship issued to them on July 1, 1891, and on July
3, 1891, they filed a petition for letters of administration on
the estate of the deceased mother. On June 29, 1891, A. C.
Freese, the public administrator, filed a petition for letters
of administration on the estate of the decedent.
The petitions of the guardians and of the public adminis-
trator were heard together on August 3, 1891.
272 Coffey's Probate Decisions, Yol. 2.
George W. Ilupers, for the gnardians.
J. D. Sullivan, for the public administrator.
COFFEY, J. The guardians claim the right to letters
of administration under the express provisions of sections
1365 and 1368, Code of Civil Procedure.
The public administrator claims the right to letters of
administration by reason of having filed his petition therefor
before a guardian for the minor children of deceased could be
appointed, and bases his claim exclusively upon the decision
of this court in the Matter of the Estate of Charles J. Vane,
Deceased, No. 10,415.
Decedent left three minor children as her next of kin and
heirs at law.
Section 1365. Code of Civil Procedure, provides that "Ad-
ministration of the estate of a person dying intestate must
be granted to some one or more of the persons hereinafter
mentioned, and they are respectively entitled thereto in the
following order: ....
"2. The children
"8. The public administrator."
The law provides (Code Civ. Proc, sec. 1368), that, if the
persons entitled to letters of administration are minors, let-
ters must be granted to their guardian, thus securing the
rights of minors through their guardian, and placing them
in all other respects on the same footing as majors. If the
children in this case had been of age the public administrator
would undoubtedly concede that they were entitled to letters.
As the statute (section 1368) places minors on an e(iuality
with persons of full age, except that the letters must not be
issued to them directly, but to their guardian for them, I fail
to see by what authority they can be deprived of this right.
Their right to letters came into being at the moment of their
mother's death, and not at the time their guardian was ap-
pointed, the latter merely acting in their place and stead, and
the same has not been waived or lost by them.
Section 42 of the Civil Code provides that a minor may
enforce his rights by civil action or other legal proceedings
in the same manner as a person of full age, except that a
guardian must conduct the same ; and section 1769, Code of
Estate of Herold, 273
Civil Procedure, requires the guardian to appear for and
represent his ward in all legal proceedings.
Estate of Vane, cited by counsel for public administrator,
is not applicable to this case for the reason that the facts are
entirely different. In that case both petitioners claimed let-
ters under subdivision 8 of section 1365, while in this case
one claims under subdivision 2 and the other under subdivi-
sion 8. At the moment that Vane died the public administra-
tor, w^hich office was then filled by Mr. Pennie, became entitled
to letters of administration. The hearing of Pennie 's peti-
tion was set for December 29, 1890, and notice thereof given
during his term of office. The petition of Mr. Freese was not
filed until January 19, 1891, and the hearing thereon set for
January 30th — more than one month after the day set for
the hearing of Pennie 's petition. In that case there was no
question but what Mr. Pennie was at one time entitled to
letters, but the contention was that he had lost that right by
reason of the expiration of his term of office. The court held
that Pennie 's right was not lost by reason of the expiration
of his term of office.
Mr. Freese does not claim in this case to have succeeded
to the rights of the children, but claims in opposition thereto;
while in the Vane case he claimed to have succeeded Pennie
in his right to letters. Whatever right to letters the children
or their guardians and Freese may have in this case arose at
the same time, and not, as in the Vane case, those of Pennie
at the moment of Vane's death, and those of Freese, if any
he had, at the time he assumed the office of public adminis-
trator; and upon this latter ground the case was doubtless
decided, and not upon the ground that one petition was filed
before the other.
The mere fact that in the present ease the public admin-
istrator filed the first petition does not give him a better
right than the guardians of the minor children of the de-
ceased, whose petition was filed a few days later. The stat-
ute nowhere provides for or recognizes any superior right
for any such reason (see Estate of McKinnon, 64 Cal. 227,
30 Pac. 437, where letters were granted on the last petition
filed), but, on the contrary, provides that ''the court must
Prob. Dec, Vol. II — 18
274 Coffey's Probate Decisions, Vol. 2.
hear the two petitions together" (section 1374), and on the
hearing "order the issuing of letters of administration to the
party best entitled thereto" (section 1375).
What occasion would there be for hearing both petitions
together and issuing letters to the party best entitled thereto
if the first petitioner is entitled to letters from the mere fact
of having filed such first petition? Where the applicants
claim under different classes, as in this case, the law at the
time of hearing is to govern, so that a person may be entitled
to letters at the time of filing his petition under the first
class, yet at the time of hearing the statute may be so
changed that he will be in the second class, and letters ac-
cordingly awarded to some other person who might happen
to be changed from the fifth to the first class by such change
in the statute. This was decided in the Estate of Cotter,
Myr. 179, where the nominee of the widow claimed that the
right to administer was vested at the date of the application,
and could not be affected by any change in the law in that
respect.
This is the contention of the public administrator in this
case. The court there held that the law at the time of hear-
ing was the rule to be followed.
Suppose in this case that the guardians had filed their
petition for letters of administration at the same time that
they filed their petition for letters of guardianship (June
23d), as they might have done, as any one has the right to
apply for letters, their rights being considered by the court
at the hearing, at which time they would show that they had
been appointed guardians. According to the claim of coun-
sel they would then be entitled to letters, as the public admin-
istrator's petition was not filed until June 29th. The course
of procedure adopted ])y petitioners (guardians), whether
applying before or after their appointment, surely cannot
give or deprive a person of the right to letters.
If the claim of the public administrator that the right of
guardians to letters comes into being at the time of their
appointment as such, and that the rights of their wards for
whom they apply cannot be considered, be sound and carried
out, it will lead to this strange inconsistency in the law.
Estate of Herold. 275
Subdivision 1 of section 1365 provides for and directs the
appointment as administrator of some person whom the sur-
viving husband or wife may request to have appointed ; sec-
tion 1379 authorizes the appointment of a competent person
at the request of the person entitled to letters, and section
1368 that letters must be granted to the guardian of the per-
son entitled where such person is a minor; yet in none of
these cases could these express and mandatory provisions of
the statute be enforced, because the right of such persons
would only commence at the date of their nomination or
appointment, at which time the public administrator's right
to letters will have already "vested" as against such nominee
or appointee. That this was not the intention of the law
is too clear for argument. The guardians in this case oc-
cupy the same position and have the same right as the
nominee of a surviving husband or wife or other party en-
titled, the only difference being that their nominee is selected
and appointed by the court instead of by themselves.
That the public administrator should not have priority
over the children or their guardian is evident from sections
1365 and 1368, already cited, as also by section 1726, Code
of Civil Procedure, which specifies what estates are to be
administered by public administrators, namely :
1. Estates for which no administrators are appointed, and
which in consequence thereof are being wasted, uncared for,
or lost;
2. Estates of decedents having no known heirs ;
3. Estates ordered into his hands by the court ;
4. Estates upon which letters of administration have been
issued to him by the court.
In this case there is a special administrator, and the estate
is being cared for, and not being wasted or lost, nor has the
estate been ordered into his hands or letters of administra-
tion issued to him by the court, and there are known heirs
of the decedent.
Should letters be granted to the public administrator in
this case, the children will have the right to have the same
revoked under section 1383, Code of Civil Procedure, through
their guardian (Civ. Code, sec. 42), so that it would be a
276 Coffey's Probate Decisions, Vol. 2.
useless and unnecessarily expensive proceeding to have an
administrator appointed who could immediately be removed.
Feldmann and Viereckt, the guardians of the minor chil-
dren of deceased, and the sole heirs of her estate, are clearly
entitled to letters of administration, and their petition should
be granted, and that of the public administrator be denied;
and it is so ordered.
Right of Minors to Letters of Administration. — While the codes
declare that no person is competent to serve as an administrator who
is under the age of majority, they further declare that "if any per-
son entitled to administer is a minor or an incompetent person, letters
must be granted to his or her guardian, or any other person entitled
to letters of administration, within the discretion of the court."
The purpose of this section is to place the guardian of a minor, and
the adult members of the class to which the minor belongs, upon the
same footing as to the right to letters. Hence a court has power to
grant letters to the guardian of a minor brother to the exclusion of
an adult brother. The statute does not apply to a surviving husband
or wife who, though under the age of majority, is old enough to con-
tract a marriage. And it does not authorize a guardian to confer
upon another, by written request, a right to administer, for he is not
named in the code section enumerating the persons entitled to admin-
ister, and his only right to letters is as representative of the minor.
The Nevada statute has been construed as not referring to a guardian
appointed in some other state: 1 Eoss on Probate Law and Practice,
320.
Estate of EMMA CARLSON, Deceased.
[No. 8800; decided October 8, 1891.]
Executor. — No Executor of an Executor is, as such, entitled to
administer on the estate of the first testator.
Executor. — Upon the Death of the Sole Executor of a will, letters
of administration with the will annexed of the estate of the testator
left unadministered must be granted as designated and provided for
in Code of Civil Procedure, section 1365.
Executor. — Where an Executor Died Pending Administration, and
his executor waited until seven months after his death before apply-
ing for letters of administration with the will annexed on the estate
of the first testator, and the public administrator filed a counter-
petition four days later, and where it does not appear that the public
administrator was ever notified of the death of the executor of the
first testator, the contention that the public administrator had waived
his right to letters by his laches is untenable.
Estate of Carlson. 277
Julian Pinto and L. Englander, for petitioner Otto Carlson.
J. D. Sullivan, for A. C. Freese, public administrator.
COFFEY, J. The record in this matter shows that Emma
Carlson died testate in this city and county on the twentieth
day of July, 1889, devising all her estate to John Carlson, her
surviving husband, who was in the will nominated and ap-
pointed the executor thereof; that on the second day of Sep-
tember, 1889, the will of Emma Carlson, deceased, was ad-
mitted to probate by the above-named court, and letters
testamentary were duly issued to said John Carlson ; that on
the sixth day of December, A. D. 1890, said John Carlson died
testate at said city and county, and by the provisions of his
will his brother Otto, the first petitioner herein, is the devisee
of his estate, and that said John Carlson died before com-
pleting the administration of said estate of Emma Carlson,
deceased; that on the seventh day of July, 1891, and after
said estate of Emma Carlson, deceased, had lain dormant
for the period of seven months by reason of there having
been no administrator appointed to complete the admin-
istration thereof, the petitioner. Otto Carlson, applied for
letters of administration therein, with the will annexed, on
the estate left unadministered ; that on the eleventh day of
July, 1891, A. C. Freese, the public administrator of said
city and county, filed his petition praying for letters of ad-
ministration wdth the will annexed of the property left un-
administered in said estate of Emma Carlson, deceased, and
contests the issuance of letters in said estate to the petitioner.
Otto Carlson, upon the ground that said Otto Carlson is not
a relative of said Emma Carlson, deceased, and, therefore,
he, the said administrator, has the prior right to letters under
the order prescribed by section 1365 of the Code of Civil
Procedure, relating to persons entitled to administer on the
estates of deceased persons.
It is contended on behalf of petitioner. Otto Carlson, that
section 1365, above referred to, can have no application as
to his right to letters of administration, with the will an-
nexed issued to him, because that section only applied and
278 Coffey's Probate Decisions, Vol. 2.
governs the court in the granting of letters on the estates of
persons dying intestate.
In this ease it is admitted that Emma Carlson, deceased,
did not die intestate, but, on the contrary, that she did die
testate, and that her will M^as admitted to probate.
The supreme court of this state, in the Estate of Barton,
Deceased, 52 Cal. 540, say: "A decedent whose will is en-
titled to be admitted to probate did not die intestate, and
therefore section 1365 is not applicable to this case, and the
probate court, in granting letters of administration with the
will annexed, is not limited to the order therein prescribed."
In this case, if the public administrator by any construc-
tion of the statute could be deemed to have had a prior right
to letters, it is maintained by counsel for Carlson that he
waived such right by his laches.
"Letters of administration must be granted to any appli-
cant, 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":
Code Civ. Proc, sec. 1377.
"If one entitled to administer waives his right to or re-
fuses to apply for letters, the court may appoint another,
and thereafter refuse to revoke these letters ' ' : Estate of
Keane, 56 Cal. 407. See, also, Kirtlan's Estate, 16 Cal. 161.
Counsel for the petitioner. Otto Carlson, insists that he
has a right to the benefit of his own diligence and of the
public administrator's laches. "Lex vigilantibus, non dor-
mientibus, subvenit": 16 How. Pr. 144.
"The law helps the vigilant before those who sleep on their
rights": Civ. Code, sec. 3527.
' ' Between rights otherwise equal, the earliest is preferred ' ' :
Civ. Code, sec. 3525.
Counsel for public administrator, on the contrary, con-
tends that the Code of Civil Procedure, section 1365, pre-
scribes the order in which letters must be granted, and coun-
sel for said Otto Carlson virtually admits that, if section 1365
applies, the public administrator is entitled to the letters, said
Otto not being next of kin to the said Emma Carlson, de-
ceased.
Estate of Whitcomb. 279
Section 1365, Code of Civil Procedure, does apply to this
case: See Code Civ. Proc, sees. 1350, 1353; Estate of Gar-
ber, 74 Cal. 338, 16 Pac. 233 ; Estate of Barton, 52 Cal. 538,
was decided November 17, 1876 (by lower court).
Section 1350, above referred to, was amended April 1,
1878, so as to apply to a case of this kind.
The contention as to laches on the part of the public ad-
ministrator is not tenable, in view of the fact that the peti-
tion of Carlson and of the public administrator herein were
filed within four days of each other, and there is no claim
that the public administrator was ever notified of the death.
Otto Carlson's petition must be denied and that of the public
administrator granted.
Estate of A. C. WHITCOMB, Deceased.
[No. 7871; decided May 20, 1890.]
Wills. — Precatory Words are Given only tlieir natural force.
Wills — Precatory Words. — Where a testator (who is a lawyer) de-
vises property to a nephew and to the nephew's son, and recommends
to the nephew to leave his portion thereof, after his own death and
the death of his wife, in trust for such son and to his children or
descendants, if any are living at the time of the death of the son,
and if there are none so living then to Harvard College, the word
"recommend" is not equivalent to a direction or command, but is
only a suggestion, which the beneficiary is free to follow or ignore.
E. J. Pringle and Jerome B. Lincoln, for A. D. Tuttle,
Sidney V. Smith, for Harvard College.
COFFEY, J. A. C. Whitcomb, senior member of the early
day San Francisco law firm of Whitcomb, Pringle & Felton,
having acquired a considerable fortune by land speculation
and transactions in stocks, withdrew from that firm in 1867.
He continued at the bar nominally, but became president
of the Citizens' Gas Company, and was generally engrossed
with his own private affairs. In 1870 he made a visit to
Paris, France, and soon concluded to make that gay capital
his permanent home. He was a bachelor of about forty-five
years, but now married a French woman, by whom he had
280 Coffey's Probate Decisions, Vol, 2.
two sons. He died in Paris in 1888, leaving an estate worth
$4,500,000, principally in California lands and eastern rail-
road bonds, the greater part of which he left by will to his
two sons and their mother. Jerome Lincoln, of San Fran-
cisco, was named executor of the will to administer that part
of the estate lying in California.
Article 6 of the will is in the following words: "I give to
my nephew, the said Adolphus Darwin Tuttle, and to his
son, Charles Whitcomb Tuttle, both of said Hancock, all my
interest, either real, personal or mixed, in the Jimeno Rancho,
so-called, wholly or partly in the counties of Colusa and Sut-
ter, in said California, in all mortgages, contracts, debts or
due arising therefrom, and I recommend to my said nephew
to leave his portion thereof, after his own death and the
death of his wife, in trust for the said Charles Whitcomb
Tuttle and to his children or descendants, if any be alive,
at the time of the death of his said son ; and, if there be
none so alive, to Harvard College, Cambridge, IMassachusetts,
one-half of the income thereof to be used by said College for
the assistance of students of said College to complete their
regular course therein, and the other half of the income there-
of for the general uses of the College, apart, however, from
any participation therein by the Divinity School."
The elder Tuttle — his residence, "said Hancock," being
in New Hampshire — came to San Francisco after the pro-
bate of the will, and filed a petition requesting the court
to construe this article of the will, exactly define his inter-
est under the devise, and make a decree immediately distribut-
ing to him in his own absolute right the undivided one-half
of the Jimeno Rancho.
Harvard College opposed this petition on the ground that
the petitioner was given a life estate only, to be followed by
a life interest in his wife, with remainder over to their son
for life, with remainder over in fee to the son's issue, or, in
default of such issue, to Harvard College.
The question presented was the construction to be put upon
the single word "recommend." Was it tantamount to a di-
rection or command, or was it only suggestion which the bene-
ficiary first named was free to follow or ignore?
Estate of Whitcomb. 281
The matter was very elaborately argued, orally and in
printed brief. The judge found and held that A. D. Tuttle
was the foster brother of the deceased, who was seeking to
pay to him the debt of nurture owing to the devisee 's mother ;
that it was clear from the terms of the devise that, whether
the language used was the expression of a trust or not, the
testator intended the Tuttles, father and son, to be the chief
objects of his bounty, for the enjoyment by them is given
in no equivocal terms, and the remainder, by recommenda-
tion or trust, in Harvard College, is to vest only at a distant
period and upon failure of issue.
To impose upon the beneficiary a trust which, by destroy-
ing the power of alienation, sacrifices the enjoyment to per-
petuate the title, impoverishing the kindred to enrich the
stranger, would be to reverse the testator's bounty. To as-
cribe this intention to the testator is at the best unnatural;
but to suppose that he intended to create in the interest of
the stranger a trust whose operation in favor of its beneficiary
is to commence, in all probability, not till the lapse of forty
years, whilst its intermediate effect is to be an absolute blight
upon the dearer beneficiaries, is to convict him of a scheme as
foolish as unnatural.
The character of the property excludes the idea that a life
enjo\Tnent in it was all that was intended for the Tuttles.
While it embraces several thousands of acres and is worth
many thousands of dollars, it consists of town lots wholly
unimproved and unproductive, of swamp and overflowed lands
comprising part of a reclamation district, which lands were
assessed last year for $8,000, are now covered by water and
wholly unproductive; and of uplands whose only yield is a
minimum return in wheat.
Such is the property which Harvard College would have
the kindred of the deceased condemned to preserve intact for,
it may be, half a century, and then surrender!
It was shown by the testimony of witnesses that in the
mind of the deceased the time had come to realize the value
of these lands by making sales in proper parcels. For this
express purpose the legal title had been vested in the coten-
ant George Hagar. To declare now that A. D. Tuttle holds
282 Coffey's Probate Decisions, Vol. 2.
the lands in trust would be to defeat the testator's known
policy.
Precatory words are to be given only their natural force:
Note to Harrison v. Harrison's Admx., 44 Am. Dec. 378, and
cases cited: 2 Pomeroy's Equity, sees. 1016, 1017.
The Colton Case (Colton v. Colton, 127 U. S. 300, 8 Sup. Ct.
1164, 32 L. Ed. 138), so confidently relied on by Harvard
College, does not sustain its position. While the strong pres-
sure of surrounding circumstances would seem to have been
controlling in that case, the United States supreme court yet
found that "recommendation," standing alone, would have
been too weak to create a trust, and relied upon its being fol-
lowed up by other precatory words, to wit: A special request
that the executrix would provide for relatives of the deceased.
It is perfectly clear that the testator knew the distinc-
tion between a trust and a mere recommendation. In article
3 of his will he gives $100,000 in railroad bonds to this same
A. D. Tuttle, in trust, to pay over the income to a lady cousin ;
and in article 7 he gives property to Jerome Lincoln, in trust,
to pay over the income to his wife and children. In article
4 he gives to his wife $200,000 in railroad bonds, and recom-
mends her not to dispose of them without the advice of a cer-
tain friend.
If the testator intended in article 6 simply to create a life
estate in A. D. Tuttle, with remainder over, he would have
adopted the forms familiar to every lam'er for creating such
estates.
The conclusion of the court is that no trust is imposed by
article 6 of the will, but that by its terms A. D. Tuttle takes
one-half of the Jimeno Rancho as absolutely as his son takes
the other half, and is entitled to a decree distributing the
same to him immediately.
PRECATORY WORDS AND TRUSTS.
The Term "Precatory Trust" Defined and Explained. — Precatory
words, as defined by Bouvier in his Law Dictionary, are expressions in
a will praying or requesting that a thing be done, while, as defined
by Burrill in his Law Dictionary, they are said to be words of en-
treaty, request, desire, wish or recommendation employed in wills as
distinguished from direct and imperative words. Such words when
addressed to a devisee or legatee will make him a trustee for the
Estate op Whitcomb. 283
person in whose favor they are used, provided that the testator has
pointed out with sufficient certainty both the object and subject mat-
ter of the intended trust: See monographic note to Harrison v. Harri-
son's Admx., 44 Am. Dec. 365.
In Bohon v. Barrett, 79 Ky. 378, the court, in discussing the nature
and meaning of precatory trusts, said: "The doctrine of precatory
trusts is well established. They grow out of words of entreaty,
wish, expectation, request or recommendation frequently employed
in wills. The meaning of the word 'precatory,' according to its
ordinary use, does not embrace a command; it means beseeching;
suppliant; prayerful. In its primal sense, as descriptive of an act
relative to a right, it conveys the idea that the right is equivocal
or uncertain, because it impliedly depends on the will of another,
who is brought to exercise his power over it. If such power were
natural or independent of the testator, then no command of his to
exercise it could be enforced; but where the power or discretion is
created by will, it is subject to such limitations as the testator sees
proper to impose, and whatever may be the character of the words
which he uses to indicate his will or wish, whether perceptive or
recommendatory, they are imperative — 'the wish of a testator, like
the request of a sovereign, being equivalent to a command.'
"His wishes and desires as to the disposition of his property after
his death constitute his will: Bart v. Herron, 66 Pa. 402. And, al-
though such desire is not expressed in mandatory language, yet if
from the language used it can be inferred, with reasonable cer-
tainty, what the desire of the testator is, it will be treated by the
courts as his command and executed accordingly. ' '
Likewise, in the well-considered case of Colton v. Colton, 127 U. S.
300, 8 Sup. Ct. 1164, 32 L. Ed. 138, the court observed: "As to the
doctrine of precatory trusts, it is quite unnecessary to trace its or-
igin, or review the numerous judicial decisions in England and in
this country which record its various applications. If there be a
trust sufficiently expressed and capable of enforcement by a court
of equity, it does not disparage, much less defeat it, to call it
'precatory.' The question of its existence, after all, depends upon
the intention of the testator as expressed by the words he has used,
according to their natural meaning, modified only by the context
and the situation and circumstances of the testator when he used
them. On the one hand, the words may be merely those of sug-
gestion, counsel or advice, intended only to influence and not to take
away the discretion of the legatee growing out of his right to use
and dispose of the property as his own. On the other hand, the
language employed may be imperative in fact, though not in form,
conveying the intention of the testator in terms equivalent to a com-
mand, and leaving to the legatee no discretion to defeat his wishes,
although there may be a discretion to accomplish them by a choice
of methods, or even to define and limit the extent of the interest
tonf erred upon his beneficiary."
284 Coffey's Probate Decisions, Vol. 2.
In considering the application of the doctrine of precatory trusts,
it is well to bear in mind that it is generally not necessary that
technical language be employed to create a trust, and that it is
enough if the intention to create a trust is apparent from the will.
Hence, it follows that precatory words — that is, words of recom-
mendation, entreaty, request, wish or expectation — may be sufficient
to create a trust in favor of the person or persons in whose favor
they are used. The question with respect to the precatory words
used being whether the precatory words are used with an intention
to govern the conduct of the party to whom they are addressed or
merely to indicate or suggest what he thinks would be a reasonable
exercise of the discretion of the legatee or devisee in the use of the
gift, but leaving it to the legatee or devisee to exercise his own dis-
cretion in the matter: Knox v. Knox, 59 Wis. 172, 48 Am. Eep. 487,
18 N. E. 155.
The doctrine of precatory trusts seems to be founded upon the
rule of construction respecting wills, that the testator's intent, when
ascertained, is to be carried out by whatever words conveyed. Con-
sequently, as we have seen before, precatory words are treated as
imperative and creating a trust where both the object and subject
matter of the precatory words is certain unless a clear discretion or
choice to act or not to act is given, or the prior disposition of the
property imports an absolute or uncontrollable beneficial ownership:
Harrison v. Harrison's Admx., 2 Gratt. 1, 44 Am. Dec. 365.
Present Tendency of Courts Respecting Creation of Precatory
Trusts. — There is considerable difference between the extent to which
the earlier English and American cases went in sustaining the doc-
trine of precatory trusts and that which generally obtains at the
present time with respect to such trusts.
Perhaps much of the confusion which exists among the authorities
has been caused by the desire of the courts to follow strictly the
intention of the testator in construing his will, and yet, on the other
hand, not to declare the existence of a trust unless the intention to
create a trust is clearly set forth.
The earlier English authorities were quite liberal in construing
precatory words as creating a trust on the theory that the precatory
words were a strong indication of the testator's intent as to the dis-
position which he willed, as a matter of fact, regardless of the
courteous terms with which he expressed his will. In other words,
the earlier decisions were rendered often on the tacit theory that
precatory words, when addressed to near relatives or lifelong friends,
were merely polite forms of couching a command.
This idea was shown to some extent in the oft-cited case of Warner
v. Bates, 98 Mass. 274. The court in that case, in discussing the sub-
ject, said: "We see no sufficient ground for calling in question the
wisdom or policy of the rule of construction uniformly applied to
wills in the courts of England and in most of the United States, that
words of entreaty, recommendation or wish addressed by a testator
Estate of Whitcomb. 285
to a devisee or legatee will make him a trustee for the person or
persons in whose favor such expressions are used, provided the tes-
tator has pointed out with clearness and certainty the objects of the
trust, and the subject matter on which it is to attach or from which
it is to arise and be administered. The criticisms which have been
sometimes applied to this rule by text-writers and in judicial opin-
ions will be found to rest mainly on its applications in particular
cases; and not to involve a doubt of the correctness of the rule itself
as a sound principle of construction. Indeed, we cannot understand
the force or validity of the objections urged against it, if care is
taken to keep it in subordination to the primary and cardinal rule
that the intent of the testator is to govern, and to apply it only
where the creation of a trust will clearly subserve that intent. It
may sometimes be difficult to gather that intent, and there is always
a tendency to construct words as obligatory in furtherance of a
result which accords with a plain moral duty on the part of a dev-
isee or legatee, and with what it may be supposed that the testator
would do if he could control his action. But difficulties of this na-
ture which are inherent in the subject matter can always be readily
overcome by bearing in mind and rigidly applying in such cases the
test that to create a trust it must clearly appear that the testator
intended to govern and control the conduct of the party to whom
the language of the will is annexed, and did not design it as an
expression or indication of that which the testator thought would
be a reasonable exercise of a discretion which he intended to repose
in the legatee or devisee. If the objects of the supposed trust are
certain and definite; if the property to which it is to attach is clearly
pointed; if the relations and situation of the testator and the sup-
posed cestuis que trust are such as to indicate a strong interest and
motive on the part of the testator in making them partakers of his
bounty; and above all, if the recommendatory or precatory clause is
so expressed as to warrant the inference that it was designed to
be peremptory in the donee — -the just and reasonable interpretation
is, that a trust is created, which is obligatory, and can be enforced
in equity as against the trustee by those in whose behalf the beneficial
use of the gift was intended."
And in a recent case in California, that of Kauflfman v. Gries,
141 Cal. 29-5, 74 Pac. 846, the court, in adverting to the evolution of
the doctrine of precatory trusts, said: "It appears from the early
decisions in England that any and every precatory word was laid
hold of to create a trust, but the modern cases in that country and
the better considered cases in America have gone the other way,
and the rule in California has been laid down that the ordinary and
natural import of the words used will be followed, 'unless a clear
intention to use them in another sense can be collected and that other
can be ascertained': Estate of Marti, 132 Cal. 666, 61 Pac. 964, 64
Pac. 1071; Civ. Code, sec. 1324; Shaw v. Lawless, 5 Clark & F. 129;
Williams v. Williams, L. E. 2 Ch. D. 12; Pennock's Estate, 20 Pa.
286 Coffey's Probate Decisions, Vol. 2.
268, 59 Am. Dec. 718; Hess v. Singler, 114 Mass. 56. In Story's
Equity Jurisprudence (vol. 2, sec. 1069), Judge Story says: 'The
doctrine of thus construing expressions of recommendation, confi-
dence, hope, wish and desire into positive peremptory commands is
not a little difficult to be maintained upon sound principles of in-
terpretation of the actual intention of a testator. It can scarcely
be presumed that every testator should not clearly understand the
difference between such expressions and words of positive direction
and command; and that in using the one and omitting the other he
should not have a determinate end in view. It will be agreed on
all sides that where the intention of the testator is to leave the
whole subject as a pure matter of discretion to the goodwill and
pleasure of the party enjoying his confidence and favor, and where
his expressions of desire are intended as mere moral suggestions to
excite and aid that discretion, but not absolutely to control or
govern it, there the language cannot and ought not to be held to
create a trust. Now, words of recommendation and other words
precatory in their nature imply that very discretion as contradis-
tinguished from peremptory orders, and therefore ought to be so
construed, unless a different sense is irresistibly forced upon them
by the context. Accordingly, in more modern times, a strong dis-
position has been indicated not to extend this doctrine of recom-
mendatory trusts; but, as far as the authorities will allow, to give to
the words of wills their natural and ordinary sense, unless it is clear
that they are designed to be used in a peremptory sense.' "
The early English and American authorities, together with the
later authorities restricting the more liberal early English doctrine
on this subject, were exhaustively discussed in the monographic note
to Harrison v, Harrison's Admx., 44 Am. Dec. 377.
In Ellis V. Ellis' Admr., 15 Ala. 296, 50 Am. Dec. 132, the court,
in an exhaustive opinion in which many of the more restrictive Eng-
lish cases were discussed, observed: "These authorities, with many
others which might be cited, show the tendency of modern decisions
in England not to extend this doctrine of implied trust from preca-
tory words, but to go back as far as may be consistent with the
current of their previous adjudications, to what I humbly conceive
to be the true rule of interpretation — that is, to give such recommend-
atory expressions their natural, ordinary and familiar sense, and
having arrived at the true intention of the testator, to let that in-
tention, if lawful, be the rule of decision in the particular case.
Thus, the court will execute the will of the testator, and not by a
forced technical construction of his words, make a will for him."
Hence, it may be said that the modern tendency is to restrict rather
than to extend the doctrine of precatory trusts, although where the
subject and object of the trust are clearly defined in the precatory
words or clauses, the courts will construe the will as creating what
is commonly called a precatory trust: Mitchell v. Mitchell, 143 lud.
113, 42 N. E. 465; Major v. Herndon, 78 Ky. 123.
Estate op Whitcomb. 287
"Precatory words in testamentary instruments, that is words of
request, desire, or recommendation, as distinguished from direct or
imperative words, have been the subject of a vast amount of dis-
cussion. In former times the courts seem to have been disposed to
lay hold of almost any precatory word to create a trust. In recent
years, however, courts have, practically with unanimity, maintained
that when property is given absolutely, a trust is not lightly to be
imposed, upon mere words of request, recommendation, and confidence;
and accordingly they have affirmed that such words will be given
their ordinary and natural import, and not to be regarded as im-
perative, unless it is clear that the testator so intended them": 1
Koss on Probate Law and Practice, 76 citing Kaufman v. Gries, 141
Cal. 295, 74 Pac. 846; Estate of Marti, 132 Cal. 665, 61 Pac. 964, 64
Pac. 1071; Estate of Buhrmeistcr, 1 Cal. App. 80, 81 Pac. 752.
General Requisites of Precatory Terms. — A trust has been de-
lared to be a relation between two persons, by virtue of which one of
them (the trustee) holds property for the benefit of the other (the
cestui que trust): Corby v. Corby, 85 Mo. 371. But it is not neces-
sary to use the word ' ' trust " or to direct property to be held in trust,
since if from the language used, in view of the whole disposition of
the estate, an intent and purpose may be reached which implies a
trust, a trust will be implied: Cockrill v. Armstrong, 31 Ark. 580;
Hughes v. Fitzgerald (Conn.), 60 Atl. 694. Hence, the rule is stated
that no particular form of expression is required to create a precatory
trust. Words of recommendation, request, entreaty, wish or expecta-
tion will impose a binding duty on a devisee or legatee by way of
trust provided the testator has pointed out with sufficient clearness
and certainty the subject matter and the object of the trust, nor will
the fact that the testator 's whole estate is disposed of in absolute
terms before the precatory words occur in the instrument prevent
the trust from attaching: Murphy v. Carlin, 113 Mo. 112, 35 Am. St.
Eep. 699, 20 S. W. 786. See, also, Quinn v. Shields, 62 Iowa, 129,
49 Am. Rep. 141, 17 N. W. 437. In other words, the words may be
precatory in form but mandatory in effect: Dexter v. Evans, 63
Conn. 58, 38 Am. St. Rep. 336, 27 Atl. 308.
In the leading English case of Knight v. Knight, 3 Beav. 172, the
general rule was announced in the following language: "As a general
rule, it has been laid down that when property is given clearly to
any person, and the same person is by the giver, who has power to
command, recommended or entreated or wished to dispose of that
property in favor of another, the recommendation or entreaty or
wish shall be held to create a trust: First, if the words are so used
that, upon the whole, they ought to be construed as imperative; sec-
ondly, if the subject of the recommendation or wish be certain; and
thirdly, if the objects or persons intended to have the benefit of the
recommendation or wish be also certain. ' '
In a comparatively recent case in New Hampshire it was held
that precatory words in a will equally with direct fiduciary expres-
288 Coffey's Probate Decisions, Vol. 2.
sions constitute a trust for the person in whose favor they are used,
if from the whole transaction and the words used such a trust may
be fairly implied: Foster v. Willson, 68 N. H. 241, 73 Am. St. Rep.
581, 38 Atl. 1003. Likewise it has also been declared that a preca-
tory trust is created where it is clear that on the whole it was
the intent of the testator to create a trust by the use of such words,
and the words used show with reasonable certainty that the testator
intended to control the legatee or devisee in the use and control of
the property bequeathed or devised: Knox v. Knox, 59 Wis. 172, 48
Am. Rep. 487, 18 N. W. 155. And in an early case in Pennsylvania
(Pennock's Estate, 20 Pa. 268, 59 Am. Dec. 718), it was held that
words in a will expressive of desire, recommendation and confidence
are not words of technical but of common parlance, and that they are
not prima facie suf3Scient to convert a devise or bequest into a trust,
but that such words may amount to a declaration of trust, when it
appears from other parts of the will that the testator intended not
to commit the estate to the devisee or legatee or the ultimate disposi-
tion to his kindness, justice or discretion.
Necessity that Words have Imperative Meaning. — In order to create
a precatory trust, the words used must be such that it will appear
from them that they were intended in an imperative sense, and that
both the subject and object of the recommendation or wish is cer-
tain: McDuffie v. Montgomery, 128 Fed. 105, citing Cruwys v. Col-
man, 9 Ves. 323; Bland v. Bland, 2 Cox Ch. 349; Knight v. Knight,
3 Beav. 179; Flint v. Hughes, 6 Beav. 342; Fox v. Fox, 27 Beav.
301; Mills v. Newbury, 112 111. 123, 54 Am. Rep. 213; Warner v.
Bates, 98 Mass. 274. And to the effect that precatory words must be
essentially imperative in their character or use in order to create a
trust, see, also, Bristol v. Austin, 40 Conn. 438; Hughes v. Fitzgerald
(Conn.), 60 Atl. 694; Bohon v. Barrett's Exr., 79 Ky. 378; Young v.
Egan, 10 La. Ann. 415; Knox v. Knox, 59 Wis. 172, 48 Am. Rep. 487, 18
N. W. 155.
In the very recent case of Burnes v. Burnes, 137 Fed. 781, the
court, in discussing the necessity for the precatory words to be used
in an imperative sense, said : ' ' There is a simple, sure and famil-
iar form of bequest to raise a trust, which consists of a devise to
the legatee in trust for the beneficiary, and a failure to use it indi-
cates an intention to avoid the creation of a trust. Words of desire,
request, recommendation or confidence in a will, addressed by a testa-
tor to a legatee whom he has the power to command, create no trust in
favor of the parties recommended, unless (1) the intention of the
testator to make the desire, request, recommendation or confidence
imperative upon the legatee, so that he shall have no option to com-
ply or to refuse to comply with it, clearly appears from the whole
will and the relation and circumstances of the testator when it was
made; (2) unless the subject matter of the wish or recommendation is
certain; and (3) unless the beneficiaries are clearly designated.
When these three conditions exist, a precatory trust may be raised.
Estate op Whitcomb. 289
The test of the creation of the trust is the clear intention of the testa-
tor to imperatively control the conduct of the party to whom the lan-
guage of the will is addressed by the expression of the wish or de-
sire, and not to commit to his discretion the exercise of the option to
comply or to refuse to comply with the wish or suggestion expressed."
But, as was said by the court in Russell v. United States Trust
Jo., 127 Fed. 445, "An expression may be imperative in its real
meaning, although couched in language which is not imperative in
form; and when it appears to have been used in this sense by the
testator, the courts will give it due effect. If it is used by way
of suggestion, counsel or advice, with a view to influence, but not
to direct the discretion of the party, it will not raise a trust. Al-
though a devise or bequest to one person, accompanied by words
expressing a wish, entreaty or recommendation that he will apply
it in whole or in part to the benefit of others, may create a trust, if
the subject and object are sufficiently certain, they will not do so un-
less the words appear to have been intended by the testator to have
been imperative; and when property is given absolutely and without
reservation, a trust is not to be lightly imposed upon mere words of
recommendation and confidence. These propositions are familiar in
the law of recommendatory trusts, but in applying them the courts
have sometimes implied and sometimes negatived the existence of a
trust from the use of the same or equivalent terms, according to the
light thrown on the intention of the testator by the various provisions
of the will, and by such extraneous facts as have been considered
material in interpreting them. ' '
Necessity that Words be Certain as to Both the Subject and Object
of Trust. — As has been seen from the foregoing section, besides the
necessity for the precatory language to be imperative in effect, it is
also essential in order to create a precatory trust that the precatory
words point out with clearness and certainty both the object of the
intended trust and the subject matter upon which it is to operate:
Harper v. Phelps, 21 Conn. 257; Lines v. Darden, 5 Fla. 51; Hand-
ley V. Wrightson, 60 Md. 198; Hess v. Sinler, 114 Mass. 56; Lucas v.
Loekhart, 10 Smedes & M. 466, 48 Am. Dec. 766; Noe v. Kern, 93
Mo. 367, 3 Am. St. Eep. 544, 6 S. W. 239; Trustees of Mclntire Poor
School V. Zanesville Canal etc. Co., 9 Ohio, 203, 34 Am. Dec. 436;
Harrison v. Harrison's Admx., 2 Gratt. 1, 44 Am. Dec. 365.
The rule has, of course, been exemplified in many cases. Thus
where an olographic will, after a devise of all the estate to the
wife, provided: "If she find it always convenient .... to give
my brother E. W., during his life, the interest on $10,000 (or $700
per annum), I wish it to be done," it was held that the provision
did not refer to the choice or preference of the devisee, but to her
pecuniary condition each year, and hence that the intent of the
testator was to charge the annuity upon the devise to the wife, pro-
vided that the payment in any year would occasion her no incon-
Prob. Dec, Vol. II — 19
290 Coffey's Probate Decisions, Vol. 2.
venience: Phillips v. Phillips, 112 N. Y. 197, 8 Am. St. Rep. 737, 19
N. E. 411. And that a precatory trust is created by a clause in a
will stating: "It is my wish and desire that my wife continue to
provide for the care, comfort and education of T. J. M., now aged
nearly five years, who has been raised as a member of my family
since his infancy, and to make suitable provision for him in case
of her death, providing that he continue to be a dutiful child to her
and shows himself worthy of consideration": Murphy v. Carlin,
113 Mo. 112, 35 Am. St. Rep. 699, 20 S. W. 786. And where, by a
will, the wife was requested to pay a niece of the testator out of
the residuary estate bequeathed to the wife, so much as she shall
from time to time think best for the support and benefit of the
niece, it was held that the court could ascertain the amount and
decree the payment of a reasonable sum for such purpose where the
wife fails to honestly and fairly exercise her discretion in the mat-
ter: Collister v. Fassitt, 163 N. Y. 281, 79 Am. St. Rep. 586, 57
K E. 490. But it was held in Howard v. Carusi, 109 U. S. 725, 3
Sup. Ct. 575, 27 L. Ed. 1089, that a devise of real estate and a be-
quest of personal property "to my brother S. C, to be held, used
and enjoyed by him, his heirs, executors, administrators and assigns
forever, with the hope and trust, however, that he will not diminish
the same to a greater extent than may be necessary for his comfort-
able support and maintenance, and that at his death the same, or so
much thereof as he shall not have disposed of by devise or sale, shall
descend to my three beloved nieces," naming them, creates no trust,
executory or otherwise.
Distinction Between Precatory and Discretionary Trust. — From what
has been said in the preceding part of this note, it will be observed
that a precatory trust is merely a trust created by the use of preca-
tory terms. Whether the precatory terms are sufficient to create a
trust is simply a matter of construction of the precatory terms em-
ployed, in connection with the whole context of the will. The mode
of carrying out the trust created by the employment of such preca-
tory terms may be either mandatory or discretionary in the same
manner as a trust created by terms other than precatory might be
either mandatory or discretionary. It is of course, true that it may
sometimes be difficult to determine whether the mode of carrjnng
out a trust created by precatory terms is mandatory or discretionary,
but that circumstance arises merely as a result of the employment of
the recommendatory terms creating the trust, and not from any in-
herent quality of precatory trusts. A precatory trust, when its ex-
istence is once ascertained by the court, is enforceable in the same
manner as any other trust is enforceable. It is the creation of the
precatory trust itself, which must not be left to the discretion of the
legatee or devisee, who is claimed to hold as a trustee and not the
mode of enforcing the trust.
Post V. Moore, 181 N. Y. 15, 106 Am. St. Rep. 495, 73 N. E. 482,
Collister v. Fassitt, 163 N. Y. 281, 79 Am. St. Rep. 586, 57 N. E. 490,
Estate of Whitcomb. 291
ami McCurdy's Appeal, 124 Pa. 99, 10 Am. St. Rep. 575, 16 Atl. 626,
illustrate to some extent the distinction above stated.
Necessity for All Parts of the Will to be Considered. — The ob-
ject of a judicial interpretation of a will is to ascertain the inten-
tion of the testator according to the meaning of the words he has
used, deduced %om a consideration of the whole instrument and a
comparison of its various parts in the light of the situation and
circumstances which surround the testator when the instrument was
framed: Colton v. Colton, 127 U. S. 300, 8 Sup. Ct. 1164, 32 L. Ed.
138; Kauffman v. Gries, 141 Cal. 295, 74 Pac. 846; Murphy, v. Car-
lin, 113 Mo. 112, 35 Am. St. Rep. 699, 20 S. W. 786. Hence it fol-
lows that in the construction of precatory terms, as in the construc-
tion of any part of a will, all the provisions and parts of the will
must be considered in order to ascertain whether the precatory words
are used with an intent of creating a trust: Dexter v. Evans, 63
Conn. 58, 38 Am. St. Rep. 336, 27 Atl. 308; Backer v. Burnham, 146
111. 9, 37 Am. St, Rep. 135, 34 N. E. 558; Negro Chase v. Plummer,
17 Md. 165; Carter v. Gray, 58 N. J. Eq. 411, 43 Atl. 711; Wood v.
Seward, 4 Redf. Sur. 271; Cook v. Ellington, 6 Jones Eq. 371; Pen-
nock's Estate, 20 Pa. 268, 59 Am. Dec. 718; In re Boiss' Estate,
177 Pa. 190, 35 Atl. 724; Hill v. Page (Tenn.), 36 S. W. 735. And
it was held in Pennsylvania that mere precatory words or words
of command or of explanation in a will are not enough to create a
trust or to establish an intention not to be gathered from a considera-
tion of the operative words upon the face of the instrument, or, in
other words, that the intent of the testator to create a trust must
be apparent from the face of the will: Boyle v. Boyle, 152 Pa. 108,
34 Am. St. Rep. 629, 25 Atl. 494. Consequently, in ascertaining
whether the testator intended to create a trust, the codicil may also
be considered: Wood v. Camden Safe Deposit etc. Co., 44 N, J. Eq. 460,
14 Atl. 885; In re Keleman, 126 N. Y. 73, 26 N. E. 968; Cook v. El-
lington, 6 Jones Eq. 371. And likewise it has been held that for
the purpose of ascertaining the testator's intent the whole will must
be considered, including provisions admitted to be void: Tilden v.
Green, 130 N. Y. 29, 27 Am. St. Rep. 487, 28 N. E. 880. But it is
said that in the construction of wills, the law in doubtful eases leans
in favor of an absolute rather than a defeasible estate, of a vested
rather than a contingent one, and of a distribution as nearly in ac-
cord with the general rules of inheritance as is possible: Patton v.
Ludington, 103 Wis. 629, 74 Am. St. Rep. 910, 79 N. W. 1073.
Meaning to be Given to the Precatory Words. — In determining
whether words used in a will are used simply as a suggestion or recom-
mendation which may be obeyed or not obeyed, or as imposing a
duty upon the legatee or devisee, the precatory words are to be un-
derstood in their natural and familiar sense: Ellis v. Ellis' Admr.,
15 Ala. 296, 50 Am. Dec. 132; McRee's Admr. v. Means, 34 Ala. 349.
But, of course, the words must be construed in connection with the
whole will. Thus in Good v. Fichthorn, 144 Pa. 287, 27 Am. St.
292 Coffey's Probate Decisions, Vol. 2.
Rep. 630, 22 Atl. 1032, the court said: "The true test of the effect of
language at variance with other parts of the devise is, whether the
intent is to give a smaller estate than the meaning of the words of
the gift standing alone would import, or to impose restraints upon
the estate given. The former is always lawful and effective; the
latter rarely, if ever; the first, because the testator 's^uteution is the
governing consideration in the construction and carrying out of a
will; the second, because even a clear intention of the testator can-
not be permitted to contravene tlie settled rules of law by depriving
any estate of its essential legal attributes.
"Applying this principle to the present case, it is clear, as already
said, that the testator gave a fee simple absolute to his widow,
repeated and reiterated, as if he wished to put it beyond all ques-
tion. But it is also clear that he still thought it necessary, or at
least permissible, for him to prescribe how it should be used. There-
fore, he gives her all the rights and powers over it that he had
while living, and in addition specifies the right to sell and convey,
to make title, to use the proceeds, and lastly, as an adjunct to the
will whose making he enjoins, 'the power and authority' to appoint
one or two executors, as she may deem proper. It is true that the
words he uses in regard to the making of her will, 'enjoin and
direct,' are in their natural meaning mandatory and imperative; but
coming as they do at the end, and in connection with the express
enumeration of useless and superfluous powers, they indicate an in-
tent to grant or withhold incidents of the estate already given."
Construction Given Various Precatory Terms in Common Use. —
The various apparently inconsistent decisions construing precatory
words spring from the difference in the order of expression and the
Burroundings, which are seldom the same in any two cases; hence it is
often said that every case must depend upon the construction of the
particular word under consideration: Bohon v. Barrett's Admr., 79
Ky. 378. Or, in other words, the difficulty with respect to precatory
trusts is not as to what the rule is, but as to its application in the
particular case on considering the whole will in that connection: Noe
v. Kern, 93 Mo. 373, 3 Am. St. Rep. 544, 6 S. W. 239.
Hence no general rule can be laid down as to the construction of
such precatory words as "wish," "desire," "recommend," "re-
quest" and the like, since the meaning to be given to such words
<Iepends entirely upon the manner in which they are used in con-
nection with the other phraseology of the will.
In Bacom v. Ransom, 139 Mass. 117, 29 N. E. 473, the court ob-
served that a request made by one who has the right to direct is
often, perhaps generally, interpreted as a command. So, also, it is
said that express words are not necessary to create a trust by will,
since, if from the language used, in view of the whole disposition
of the estate, such an intention is manifest, a trust will be implied.
The terms "wish and desire" may be sufficient: Cockrill v. Arm-
strong, 31 Ark. 580.
Estate of Whitcomb. 293
The use of the words "wish and will," and especially the word
"will," were discussed quite elaborately by the court in McRee's
Admr. v. Means, 34 Ala. 349. The court in that case said: " 'Will'
is sometimes used as the synonym of choice, wish, pleasure; but it is
also used frequently in the sense of command, direction, determina-
tion and resolution. It has, when found in testamentary papers, a
universally received mandatory signification. Swinburne's definition
of a testament is 'a just sentence of our will, touching that we
would have done after our death': 1 Swinburne on Wills, 4. Again,
the same author says (page 19), 'the will or meaning of the testator
is the queen or empress of the testament.' The same definition is
also given by other authors: 10 Bacon's Abridgment, 479; Bouvier's
Law Dictionary.
"In Gilbert v. Chapin, 19 Conn. 351, the word 'will' is used in
contradistinction to precatory language, as will be seen by the fol-
lowing quotations: 'It is said that precatory language, or words of
recommendation, are expressive of a testator's will and intention.
It is true that such forms of expression declare a wish, a preference,
but not a will in its appropriate sense. They express an intention,
or rather a desire, not absolutely but with a qualification or condi-
tion that such desire shall nevertheless be subject to the future
discretion and action of the devisee. And the distinction between
this and an imperative direction, which, in legal parlance, is a will,
is very intelligible and clear.' This extract indicates an opinion
of the Connecticut court that 'will' is the antithesis of words of
recommendation and request, not creating a trust, and carries with
its use an imperative direction.
"The same meaning has also been attributed to the word in
South Carolina where it is spoken of and distinguished from 'wish':
Brunson v. King, 2 Hill Eq. (S. C), 490. Chief Justice Marshall
had the same view of the import of the word, for he said: 'The
first and great rule in the exposition of wills, to which all other
rules must bend, is that the intention of the testator, expressed in
his will, shall prevail, provided it be consistent with the rules of
law. This principle is generally asserted in the construction of every
testamentary disposition. It is emphatically the will of the person
who makes it, and is defined to be the declaration of a man's in-
tentions, which he wills to be performed after its [his] death': 6
Bacon's Abridgment, 16; also, 2 Blackstone's Commentaries, 499;
Eels V. England, 2 Vern. 466; Forbes v. Ball, 3 Mer. 436.
"The common acceptation of the word 'will' corresponds with
the meaning adopted by law-writers. There is no other word of
more common and familiar use to describe the mental operation in-
volved in the act of making a bequest of property. While the books
abound in cases where words less imperative than will have been
held to create trusts, we have not found, and the industry of coun-
sel has not produced, a single case in which 'will' has not been
treated as mandatory. The word 'will,' we decide, therefore, ex
294 Coffey's Probate Decisions, Vol. 2.
vi termini imports an obligatory direction by the testatrix." The
court then held that the words "wish and will" had an imperative
effect.
But in Lines v. Darden, 5 Fla. 51, the court, in discussing the
effect of the words "will and desire" said: "The words 'will and
desire' when addressed to an executor, are, as contended, impera-
tive, and it is his duty to carry out the wishes of his testator, if
possible, and when consistent with the will. The words are not
necessarily adrcssed to the executor. The object to be performed will
usually afford a safe guide in determining to whom they are ad-
dressed. ' '
There are, however, numerous decisions in which the precatory
words in common use have been construed, but such decisions can
only, as a general rule, be of aid where the context is quite similar.
Thus, in Ee Whitcomb, 86 Cal. 265, 24 Pac. 1028, the word "recom-
mend" was construed as having been used in a strictly precatory
character, with no imperative effect, while in Eberhardt v. Perolin,
48 N. J. Eq. 592, 23 Atl. 501, the same word was given an impera-
tive effect.
In McCurdy v. McCallum, 186 Mass. 464, 72 N. E. 75, it was said
that under the law of England the word "request," when used in
a will, may be construed to be either mandatory or directory, de-
pending upon the intent as gathered from the whole will, and it was
construed in that case as creating a trust.
And in Colton v. Colton, 127 U. S. 300, 8 Sup. Ct. 1164, 32 L.
Ed. 138, the court observed: "It is an err.or to suppose that the
word ' request ' necessarily imports an option to refuse, and excludes
the idea of obedience as corresponding duty. If a testator requests
his executor to pay a given sum to a particular person the legacy
would be complete and recoverable. According to its context and
manifest use, an expression of desire or wish will often be equiva-
lent to a positive direction, where that is the evident purpose and
meaning of the testator; as where a testator desired that all his
just debts, and those of a firm for which he was not liable, should
be paid as soon as convenient after his decease, it was construed
to operate as a legacy in favor of the creditors of the latter: Burt
v. Herron, 66 Pa. (16 P. F. Smith) 400. And in such a case as
the present, it would be but natural for the testator to suppose that
a request, which, in its terms, implied no alternative, addressed to
his widow and principal legatee, would be understood and obeyed as
strictly as though it were couched in the language of direction and
command. In such a ease, according to the phrase of Lord Lough-
borough in Malim v. Keighley, 2 Ves. Jr. 333, 529, 'the mode is only
civility.' " The clause of the will under consideration in the above
case was, "I give and bequeath to my wife, E. W. C, all of the es-
tate, real and personal, of which I shall die seised, possessed or en-
titled to. I recommend to her the care and protection of my mother
Estate of Whitcomb. 295
and sister, and request her to make such gift and provision for them
as in her judgment will be best."
The word "request" was construed in Barry v. Sturdivant, 53
Miss. 491 j Schmucker v. Reel, 61 Mo. 592; Eddy's Exr. v. Harts
home, 34 N. J. Eq. 419; Foose v. Whitmore, 82 N. Y. 405, 37 Am
Rep. 572; Wyman v. Woodbury, 86 Hun, 277, 33 N. Y. Supp. 217:
Batchelor v. Macon, 69 N. C. 545. And the precatory words "re
quest and desire" in Williams v. Worthington, 49 Md. 572, 33 Am
Rep. 286; the words "requested and intrusted" in Spurgeon v
Scheible, 43 Ind. 216; the words "will and desire" in Lines v
Darden, 5 Fla. 51; Gate v. Cranor, 30 Ind. 292; Reid v. Porter, 54
Mo. 265; Collins v. Hope, 20 Ohio, 492; McMurry v. Stanley, 69
Tex. 227, 6 S. W. 412; the words "wish and will" in McRee v.
Means, 34 Ala. 349; the words "wish and desire" in Phebe v. Quil-
lin, 21 Ark. 490; Cockrill v. Armstrong, 31 Ark. 580; Cobb v. Battle,
34 Ga. 458; Barrett v. Marsh, 126 Mass. 213; Brasher v. Marsh, 15
Ohio St. 103; the words "desire and request" in Kauffman v. Griess,
141 Cal. 295, 74 Pac. 846; the words "enjoin and direct" in Good
V. Fichthorn, 144 Pa. 287, 27 Am. St. Rep. 630, 22 Atl. 1032; the
words "on the trust and confidence" in People v. Powers, 147 N. Y.
104, 41 N. E. 432, 35 L. R. A. 502.
Although the word "wish" is a distinctly precatory term, still
it very often is used in an imperative sense. The court, in Russell
V. United States Trust Co., 127 Fed. 445, in construing the word
"wish" said: "The present case differs primarily from either of
these cases, because the testator did not 'request' or 'direct' his
wife, in referring to the future disposition of the property left to
her. But this consideration is of little importance. Undoubtedly
the word 'wish' may be equivalent to 'will' or 'request' or 'direct,'
if the context justifies that meaning: Bliven v. Seymour, 88 N. Y.
469. In Phillips v. Phillips, 112 N. Y. 197, 8 Am. St. Rep. 739, 19
N. E. 411, it was given that meaning. But in both of these cases
the context authorized the implication that it was used imperatively.
So, also, the word 'wish' may be equivalent to 'request'; but the
meaning of the word 'request,' standing alone, is indeterminate and
depends altogether upon the context: Foose v. Whitmore, 82 N. Y.
405, 37 Am. Rep. 572. Except that in this case, as in all of these
cited, the testator used a word which may be regarded as impera-
tive or as not imperative, these authorities do not assist the present
decision. The testator's expression of a 'wish and expectation' that
his wife should 'generously remember' his brother's children and
'such others as she may choose' when she should make her will is
one of hope and confidence rather than of command. That he did
not intend to use it in an imperative sense appears from the con-
text, and the provision for the mother denotes the distinction which
existed in his mind between words of command and words of recom-
mendation. When he proposes to provide for his mother he 're-
quests his wife to pay to her or her caretaker an ascertainable
296 Coffey's Probate Decisions, Vol. 2.
sum — such sum or sums as may be requisite for her every comfort.'
This part of the clause may very properly be read as imperative.
But when he refers to the persons mentioned in the latter part of
the clause, he substitutes for the word 'request' the words 'my
wish and expectation' — words which are calculated to appeal to her
judgment rather than to coerce it. More significant, as indicating
that he did not intend by these words to dictate the action of his
wife, is the circumstance that he applies them alike to the children
of the deceased brother and to ' such others as she may choose. '
If the will had read, 'I request [or direct] my wife by her will to
generously remember my deceased brother's children and such others
as she may choose,' the wide latitude of discretion given to her
would be quite inconsistent with an intention to dictate or command.
As it does read, the language is more clearly indicative merely of
suggestion and preference. It falls short of denoting any definite
disposing intention in favor of the persons mentioned."
For instances where the word "wish" was construed as having
been used in a mandatory sense, see Phebe v. Quillin, 21 Ark. 490;
Bohon V. Barrett's Exr., 79 Ky. 378; Curd v. Field, 103 Ky. 293, 45
S. W. 92; Pratt v. Trustees etc., 88 Md. 610, 42 Atl. 51; Bliven v.
Seymour, 88 N. Y. 469; Phillips v. Phillips, 112 N. Y. 197, 8 Am.
St. Kep. 737, 19 N. E. 411; Meehan v. Brennan, 16 App. Div. 395, 45
N. Y. Supp. 57; Cook v. Ellington, 6 Jones Eq. 371; Brasher v.
Marsh, 15 Ohio St. 103; Appeal of Fox, 99 Pa. 282; In re Gaston's
Estate, 188 Pa. 374, 68 Am. St. Rep. 874, 41 Atl. 529.
And for instances where the word "wish" was construed as hav-
ing been used in a precatory sense, see Nunn v. O'Brien, 83 Md. 198,
34 Atl. 244; Manners v. Philadelphia Library Co., 93 Pa. 165, 39 Am.
Eep. 741; Brunson v. King, 2 Hill Eq. (S. C.) 483.
The words "wish," "desire," "command" or "direct" are said
to be apt words in a will to show the intent of the testator to make
a will: Barney v. Hayes, 11 Mont. 571, 28 Am. St. Rep. 495, 29 Pac.
282. But of course the expression of a "desire" that the one to
whom a bequest is made shall make a certain testamentary disjDOsi-
tion of part of the bequest may fall short of a "command or direc-
tion," and have merely a precatory effect: Estate of Marti, 132 Cal.
666, 61 Pac. 964, 64 Pac. 1071. But the word "desire" is frequently
used in a will with the intent of indicating a positive direction:
See Weber v. Bryant, 161 Mass. 400, 37 N. E. 203; Wood v. Camden
etc. Co., 44 N. J. Eq. 460, 14 Atl. 885; Stewart v. Stewart, 61 N. J.
Eq. 25, 47 Atl. 633; Meehan v. Brennan, 16 App. Div. 395, 45 N. Y.
Supp. 57; Appeal of Philadelphia, 112 Pa. 470, 4 Atl. 4; Oyster
v. Knull, 137 Pa. 448, 21 Am. St. Rep. 890, 20 Atl. 624. And like-
wise the word "desire" has been used in many instances for the
purpose of creating a trust: See Cockrill v. Armstrong, 31 Ark. 580;
Major V. Herndon, 78 Ky. 123; Maught v. Getzendanner, 65 Md.
527, 57 Am. Rep. 331, 5 Atl. 471; Van Dyck v. Van Beuren, 1 Caines,
84; Riker v. Leo, 115 N. Y. 93, 21 N. E. 719.
Estate op "Whitcomb. 297
The term "requiring" was construed as creating a trust in Curd
V. Field, 103 Ky. 293, 45 S. W. 92.
Effect of Words Indicating Merely Motive of Testator in Making
Gift. — No trust can be implied merely from words indicating the
motive which induced the testator in making the gift: Randall v.
Randall, 135 111. 398, 25 Am. St. Rep. 373, 25 N. E. 780; Small v.
Field, 102 Mo. 105, 14 S. W. 815. The application of the rule just
stated arises in those cases where a devise is made to one standing
in the relation of a parent, and makes some recommendation or re-
quest touching the maintenance of children, since such a recommenda-
tion or request relates, as a general rule, to the motive of the testa-
tor: Elliott V. Elliott, 117 Ind. 380, 10 Am. St. Rep. 54, 20 N. E.
264; Seamonds v. Hodge, 36 W. Va. 304, 32 Am. St. Rep. 854, 15 S.
E. 156.
Effect of Words as Courteous Command When Addressed to Near
Relatives or Intimate Friends. — Very often a testator, in formulating
an imperative direction in a will, employs courteous precatory terms
from a sense of delicacy when addressing such directions toward his
wife or some near relative, but in such cases the context will gen-
erally show that an imperative direction was intended. It is quite
likely that the doctrine of precatory trusts originally arose through
an extensive use of such courteous forms of commands.
The Kentucky court, in Bohon v. Barrett's Exr., 79 Ky. 378, in
construing certain courteous language of a precatory character to
amount to a trust, adverted to the reasons for the use of such lan-
guage. That chivalrous court observed: "The language employed
in defining the discretion of his brother is somewhat obscure and
indirect, resulting from an attempt by the testator to maintain
through his language a refined respect for his feelings, amounting
almost to sentimentalism. A peculiar and sacred confidence must be
presumed to have existed between them."
And in referring to the absence of specific directions the court
said: "It requires no romantic stretch of the imagination to account
for the use of general terms and the nonexpression of the particulars
of the delicate confidence of brothers, born of the same mother,
reared around the same fireside, and in manhood associated under
the same roof until one is taken and the other left.
"And in view of their relations and the peculiar language of the
will, which exalt this trust high above the usually guarded trusts,
the slightest wish of the testator should be binding upon the con-
science of his brother."
And in Murphy v. Carlin, 113 Mo. 112, 35 Am. St. Rep. 699, 20
S. W. 786, the court, in construing the effect of the words "wish
and desire," said: "In considering this question it is to be remem-
bered that the devisee is the wife of the testator, between whom it
is not expected that commands would be expressed in such forcible
language as between strangers: Warner v. Bates, 98 Mass. 274;
Knox V. Knox, 59 Wis. 172, 48 Am. Rep. 487, 18 N. W. 155."
298 Coffey's Probate Decisions, Vol. 2.
Likewise in Re Whitcomb, 86 Cal. 265, 24 Pac. 1028, the court ad-
verted to the fact that the word "recommend," when used toward a
wife, might have a more binding force than when used toward an ex-
ecutor.
But in Mitchell v. Mitchell, 143 Ind. 113, 42 N. E. 465, the court,
in adverting to the use of precatory language toward a wife tending
to limit the estate devised, said: "Nor is it doubted that it was
within the power of the testator to place such a limitation upon
the apparent devise in fee simple as to charge it with a trust in
favor of another than the immediate devisee. Neither is it ques-
tioned that such a limitation might have been made in words not so
full of harsh command, when addressed to his wife, as would seem
neither rude nor inconsiderate if addressed to an executor or another
not sustaining a relationship so near and sacred as that of wife.
But we do not understand that language addressed to the wife, in
form and substance advisory, will be construed as a command, sim-
ply because the relationship not only admits of, but would seem to
suggest, words of tenderness and civility, when such construction
would radically qualify other and clearly expressed purposes of the
testator, and set at naught any of the other well-recognized canons
of construction.
"In addition to the admitted rules of construction above stated,
there is one fully settled in this state, that a devise in fee, clearly
and distinctly made, cannot be taken away, cut down or modified
by subsequent words not clearly and distinctly manifesting the tes-
tator's intention to limit such devise: Orth v. Orth, 145 Ind. 184,
57 Am. St. Eep. 185, 32 L. R. A. 298, 42 N. E. 277, 44 N. E. 17; Ross
v. Ross, 135 Ind. 367, 35 N. E. 9; O 'Boyle v. Thomas, 116 Ind. 243,
19 N. E. 112; Bailey v. Sanger, 108 Ind. 264, 9 N. E. 159."
Effect of Words Addressed to an Executor, — In an early case in
New Hampsliire, that of Erickson v. Willard, 1 N. H. 217, the court
observed: "The words 'desire,' 'request,' 'recommend,' 'hope,' 'not
doubting' that the executor will conduct in a specified manner, when
they come from a testator who has the power to command, are to be
construed as commands clothed merely in the language of civility,
and they impose on the executor a duty which courts have in re-
peated instances enforced." And see, also. Van Duyne v. Van
Duyne, 14 N. J. Eq. 397, where the distinction as to the use of preca-
tory terms addressed to a devisee and when addressed toward an
executor is also recognized. And in Estate of Marti, 132 Cal. 666,
61 Pac. 964, 64 Pac. 1071, the court, in discussing the effect of the
word "desire" addressed toward the wife, who was named as his
devisee, observed that "while the desire of a testator for the dis-
position of his estate will be construed as a command wlion addressed
to his executor, it will not, when addressed to his legatee, be con-
strued as a limitation upon the estate or interest which he has given
to him in absolute terms."
Estate of Whitcomb. 299
Effect of Words as Mere Suggestion to Influence Discretion. — As
we have seen before, words indicating merely a wish or recommenda-
tion, and appealing to the discretion of a legatee, impose no legal
obligation on him in favor of the person in whose behalf the words
are used: Wilde v. Smith, 2 Dem. Sur. 93. Likewise a clause in a
will stating that the testator would like his estate kept in a certain
place, and as it was at his death, is held not to impose any duty:
Angus V. Noble, 73 Conn. 56, 46 Atl. 278.
Effect of Words as Dependent upon Status or Education of Testator.
It would seem that it would be a circumstance to aid in the con-
struction of a will that the will was an olographic one drawn by a
testator unfamiliar with the meaning of the language employed by
him, or, on the other hand, that the will was drawn by a lawyer who
was familiar with the meaning of the language employed in the fram-
ing of the will.
This idea was considered of some weight in Eberhardt v. Perolin,
48 N. ,J. Eq. 592, 23 Atl. 501. In that case the court observed: "In
the first place, the additional circumstances are to be noted that
the will is an olograph, by a Frenchman who is plainly deficient in
orthography and ability to properly punctuate his sentences and
use capital letters, although his production, in many respects, exhib-
its intelligence and considerable thought, and also that, in the por-
tion of the will which is offered for construction, he has plainly in-
terlined immediately after the word 'instrument' at the end of the
provision for the increase of the legacy to the Presbyterian church,
these words, ' and her Plaisure if she My Wife feel dispose to do so
but it is not obligatory,' following which, without intervening
punctuation, are the words, 'Also to increase the donation,' etc., the
word 'also' commencing with a capital 'A.' Upon a close inspec-
tion of the original will with the aid of a magnifying glass, I am
satisfied that a long downward stroke, by way of punctuation, orig-
inally followed the word 'instrument,' but that when the inter-
lineation was made it was written over in such a way as to make
it run into, or constitute part of, the letter 'b' in the word 'obliga-
tory.' " And in referring to certain words used by the testator in
the precatory clauses of the will, the court further observed: "It
is to be remembered that Vinot was born and reared in France, and
that the English language was consequently not his native tongue.
Many indications of his proneness to adopt his native language, a
fact significant of his lack of familiarity with English, appear in
his will. Under the circumstances we must not too readily assume
that he meant to use the Saxon word 'gift' in its exact sense."
And in Re Whitcomb, 86 Cal. 265, 24 Pac. 1028, the will was an
olographic one. The court, in construing the precatory clauses of
the will, seemed to place some weight upon the fact that the testa-
tor was a lawyer and understood fully what language was necessary
to vest a trust estate.
300 Coffey 's Probate Decisions, Vol. 2.
And iu Sale v. Thornborry, 86 Ky. 26G, 5 S. W. 468, the court ad-
verted to the fact that the testator was a lawyer, but it does not ap-
pear whether the will was olographic.
Effect of Varied Use of Words in Different Parts of Will. — As haa
been stated before, the whole context of the will is to bo considered
in construing the effect of the various precatory terms employed in
the will.
The general rule as to the construction of precatory words was
stated by the court in Stewart v. Stewart, 61 N. J. Eq. 25, 47 Atl.
633, in construing the word "desire." The court said: "The rule
that words occurring more than once in a will shall be presumed
to be used always in the same sense unless a contrary intention ap-
pear by the context, or unless the words be applied to a different
subject, laid down by Mr. Jarraan (3 Jarman on Wills (E. & T.),
707), is founded on reason, and is in accord with the fundamental
rule which requires us to seek from the language of a will the in-
tent of the testator. There is nothing in the context to indicate
that 'desire' was used in paragraph 3 in a different sense from that
clearly indicated by its use in paragraph 4 and paragraph 7. In
every case the word is applied to the same subject matter, that is,
the disposition of parts of testator's estate. It follows, in my judg-
ment, that 'desire' in paragraph 3 bears the sense of 'I direct,' as
it evidently does in paragraphs 4 and 7."
Likewise in Russell v. United States Trust Co., 136 Fed. 758, the
court placed considerable weight upon the fact that different phrase-
ology was used in different parts of the will. It said: "Where the
whole instrument is considered, it is apparent that the testator has
chosen different forms of expression for different objects, and it is
fair to assume that his choice was intelligent. To his wife and
daughter he wills and bequeaths two-thirds and one-third, respec-
tively, of his real and personal property. When he is providing
for the support of his mother and sister — an obligation to be im-
mediately assumed — he, with full confidence, requests. When he
refers to generous remembrance of the children of his brothers
and others, such remembrance to find expression at some time in
the future, which may be remote, he says, 'it is my wish and
expectation.' Why did he change the form of expression? Why
did he not with full confidence request that such remembrance be
made? 'Wish and expectation' import hope, and 'hope' presupposes
the possibility of disappointment. If the change of language was
made with an intelligent purpose, it would seem that such purpose
contemplated that over the wished-for remembrance of the nephews
the sound discretion of the wife was to be more fully exercised than
over the provision for the support of mother and sister. It may be
that a disclosure of all the surrounding circumstances might induce
a court to construe the words 'wish and expectation' as complainant
contends they should be, but with nothing but the will before us,
they cannot be given such meaning."
Estate of Whitcomb. 301
Effect Where Meaning of Precatory Words is Doubtful.— If there
is doubt whether a testator intended by words of advise or recom-
mendation to narrow an otherwise free and unfettered devise or be-
quest, the courts incline in favor of the absolute title of the devisee
or legatee: Orth v. Orth, 145 Ind. 184, 57 Am. St. Rep. 185, 42 N. E.
277, 44 N. E. 17, 32 L. R. A. 298. See, also, Barrett v. Marsh, 126
Mass. 213, to the same effect.
Effect Where Precatory Words Follow an Absolute Bequest or De-
vise. — It is stated that a devise in fee, clearly and distinctly made,
cannot be taken away, cut down or modified by subsequent words not
clearly and distinctly manifesting the testator's intention to limit
such devise: Mitchell v. Mitchell, 143 Ind. 133, 42 N. E. 465; Second
Reformed etc. Church v. Disbrow, 52 Pa. 219. '
And with respect to the use of precatory words or clauses imme-
diately following an absolute disposition, the rule seems to be that
the precatory words, under such circumstances, do not create a trust:
Williams v. Worthington, 49 Md. 572, 33 Am. Rep. 286; Durant v.
Smith, 159 Mass. 229, 34 N. E. 190; First Presbyterian Church v.
McKallor, 35 App. Div. 98, 54 N. Y. Supp. 740.
This rule was followed in Post v. Moore, 181 N. Y. 15, 106 Am. St.
Rep. 495, 73 N. E. 482, where it was held if a will purports to devise all
the testator's property to his widow, to have and to hold to her and her
heirs and assigns forever, but states that it is testator's will and desire
that she shall pay the sum of .$300 a year to his sister in law, no trust
or power in trust is created in favor of the sister in law thereby.
So, also, it is said that where full discretion is clearly given to
the legatee, the use of precatory words will not create a trust : Corby
V. Corby, 85 Mo. 371. Hence the rule has also been stated that al-
though expressions of a desire or a wish of the testator as to a spe-
cific disposition of his property, standing alone by themselves, may
create a valid devise or bequest, still the rule is different where such
expressions are employed after an absolute disposition of the prop-
erty has been made: Hopkins v. Glunt, 111 Pa. 287, 2 Atl. 183.
The case of Kauffman v. Gries, 141 Cal. 295, 74 Pae. 846, was an
instance where a wife devised land to her husband in fee simple with
an expression of ' ' desire ' ' and ' ' request ' ' that he should convey it
to a Masonic lodge ''in such manner and at such times as he may
deem best," was held not to import a trust on behalf of the lodge.
And where a will, which after disposing of the residuary estate to
the husband "absolutely" expresses a wish that he shall arrange
his affairs so at his death "whatever may remain" of his property
will go to the son of the testatrix, it was held not to create a preca-
tory trust: Nunn v. O'Brien, 83 Md. 198, 34 Atl. 244.
And where a will bequeathed a certain sum to two women as their
absolute property, followed by a provision, "I request said Susan
and Lucy to use said fund thus given to further what is called to
Woman's Rights Cause. But neither of them is under any legal re-
302 Coffey's Probate Decisions, Vol. 2.
sponsibility to anyone or any court to do so," it was held that no
trust was created: Bacon v. Kansom, 139 Mass. 117, 29 N. E. 473.
And likewise it was held that no trust was created where the
estate was given to two youngest sons in fee simple, with a clause
stating that "In making this disposition of my property I assume
that my oldest son will understand and appreciate my reason for
giving whatever property I may have had at my disposal to his
younger brothers; and that they, on their part, will not fail to do
for him and his family, all that, under the circumstances, the truest
fraternal regard may require them to do": Rose v. Porter, 141 Mass.
309, 5 N. E. 641.
So, also, where it is apparent from the language of a will that it
was the testator's intention to vest a fee in his daughters as to cer-
tain real estate, this intention is not to be controlled by the expres-
sion of a wish that the husbands of his daughters should not control
the inheritance: Ringe v. Kellner, 99 Pa. 460. And where a father,
by a clause in his will, gives his daughter $10,000 and by another
clause states that it is his "wish and desire" that she shall not consume
the principal, but that at her death it shall go to certain devisees,
it was held that the precatory clause did not limit the absolute 'gift
to one for life only: In re Heck's Estate, 170 Pa. 232, 32 Atl. 413.
And where a will gave the residuary estate to the wife "absolutely,"
with a request that she give to their son a certain sum or any sum
she might think best, and also accompanied by a clause providing
"I further request that she, my said wife, shall assist any of my
brothers and sisters if they should be in need, and at her decease
she should divide her property among them as she may think best,"
the court held that the precatory clauses created no trust in favor
of the brothers and sisters: McDuffie v. Montgomery, 128 Fed. 105.
But it was held in a Missouri case that a precatory trust may be
attached to property devised to another absolutely, provided that the
intention to so change it appears from the will: Noe v. Kern, 93
Mo. 367, 3 Am. St. Rep. 544, 6 S. W. 239. And in an early case in
Mississippi it was stated that though the language of a will may
make an absolute gift, yet if other appropriate expressions be used
which show with sufficient certainty that but a qualified gift was
intended, a court of equity will look to the clear intent of the testa-
tor and raise a constructive trust where none had been expressly de-
clared, but it also laid great stress upon the point that to raise a
precatory trust the words of recommendation or of hope used by the
testator must be certain both with respect to the object and subject
of the intended trust: Lucas v. Lockhart, 10 Smedes & M. 466, 48
Am. Dec. 766. And in this connection see, also, Pennock's Estate,
20 Pa. 268, 59 Am. Dec. 718.
And in Knox v. Knox, 59 Wis. 172, 48 Am. Rep. 487, 18 N. W. 155,
the will contained a clause stating, "I give, devise and bequeath
unto my wife M., her heirs and assigns, forever, all my real and
personal estate, .... having full confidence in my said wife, and
Estate of Whitcomb. 303
hereby request that at her death, she will divide equally, share and
share alike, in equal portions, as tenants in common between my sons
and daughters [naming them] all the proceeds of my said property,
real and personal, goods and chattels hereby bequeathed." The
court, after an elaborate discussion of the subject, held that the
widow obtained under the will a life estate coupled with a trust as
to the remainder in favor of the children.
Effect Where Testator Declares that No Trust is Created by the
Terms Used.— The rule seems to be that however strange the precatory
language may be, that the courts will not construe it to create a
precatory trust where the testator expressly declares that his precatory
language is not intended to create a trust: Ender's Exr. v. Tar Co.,
89 Ky. 17, 11 S. W. 818; Wood v. Seward, 4 Eedf. Sur. 271; In re
Havens, 6 Dem. Sur. 456; Fairchild v. Edson, 1.54 N. Y. 199, 61 Am.
St. Rep. 609, 48 N. E. 541; Toms v. Owen, 52 Fed. 417; Burnes v.
Burnes, 137 Fed. 781.
Precatory Clauses Relative to Persons Occupying Various Relations
Toward the Testator. — Inasmuch as the decisions construing particu-
lar precatory terms and clauses are of controlling weight only when
there is a striking similarity of the terms or clauses construed, and
inasmuch as there may be a certain amount of similarity in all cases
wherein the precatory terms or clauses were employed in behalf of
persons occupying a similar state of relationship toward the testator,
we have grouped the cases with respect to their reference to the
persons upon whose behalf the terms or clauses were used.
Parents. — A clause in a will stating that "my mother is to
have $150 out of my estate annually as long as she lives and that
she remain with my wife during the remainder of her life," imposes
no charge upon testator's estate for the board of his mother: Martin
V. Goode, 111 N. C. 288, 32 Am. St. Rep. 799, 16 S. E. 232. But if
there is expressed a "wish and desire" in the will of a deceased
wife that her aged, infirm and dependent father should, in case of
need, be provided with a home and maintenance by her husband, the
intention of the testatrix to provide for the maintenance of her
father is apparent, and it must be held that the devise to the hus-
band was made on the trust that he would furnish to the father
during the latter 's life should he need or require it: Foster v. Will-
son, 68 N. H. 241, 73 Am. St. Rep. 581, 38 Atl. 1003.
Children in General. — Where a will bequeaths an estate to three
sons, but a clause states that having full confidence in such sons
and their disposition to deal fairly, justly and liberally, testator leaves
it to them to make proper and suitable provision for their sisters,
it shows an intention on the part of testator to charge the estate
on behalf of the sisters: Cockrill v. Armstrong, 31 Ark. 580. A de-
vise to the wife "that she may dispose of the same as she may
think best for herself and my children," and "to have and use as
she may think best and proper for herself and my children," creates
30-4 Coffey's Probate Decisions, Vol. 2.
in the devisee for the benefit of herself and the children: Elliott v.
Elliott, 117 Md. 380, 10 Am. St. Rep. 54, 20 N. E. 2G4; Kidder's
Exr. V. Kidder (N, J, Ch.), 56 Atl. 154. Likewise under a devise to
a wife of all real and personal estate to do as she thinks best for the
children, and in case she remarries, then she is to have a child's
portion, it was held that the widow was a trustee for herself and
the children: Walker v. Quigg, 6 Watts, 87, 31 Am. Dec. 452. And
under a devise to a wife of all the estate "to be managed by her,
and that she may be enabled the better to control and manage our
children, to be disposed of by .her to them in that manner she may
think best for their good and for her happiness," the wife holds
the property in trust, not for herself or the children alone, but for
both to be managed at her discretion for the benefit of herself and
the children: Young v. Young, 68 N. C. 309. A residuary clause in
a will stating "all the remainder of my estate I leave to my wife
Elizabeth to be divided among my children as she thinks proper,"
vests no beneficial interest in the wife, but only a trust for the
benefit of the children: Green v. Collins, 28 N. C. 139.
The decisions above set forth providing for the maintenance of
children are not strictly precatory clauses, and are more properly
questions as to whether they constituted an express trust, but they
will serve as comparisons with those decisions in which the language
is more precatory in its nature.
A trust is created where a testator devises certain land to his
wife in trust for the use of his two sons, the portion to one son
being defined by specified boundary lines, and the other son to have
the residue, but declaring that in the division of the land it was
his wish to equalize them as near as possible, and "I trust to the
sense of justice to my said sons that if I have given more to the one
than the other that they will do right": Hadley v. Hadley, 100 Tenn.
446, 45 S. W. 342. And a bequest to a wife, her heirs and assigns
forever, "having full confidence in my said wife and hereby request
that at her death she will divide equally between my sons and
daughters all the proceeds of my said property, real and personal,
hereby bequeathed," gives the widow a life estate with remainder
in trust for the children: Knox v. Knox, 59 Wis. 172, 48 Am. Rep.
487, 18 N. W. 155.
Some of the bequests and devises in which the welfare of the
children is provided for are not strictly precatory clauses, but inas-
much as they are sometimes discussed from that standpoint, we will
advert to them. Thus a bequest to a wife "during her lifetime for
the support of herself and my children ' ' was held not to create a
precatory trust: Billar v. Loundes, 2 Dem. Sur. 590. So, also, a
bequest to a wife "in full confidence that she, in her wisdom, will
make every needful provision for my children," creates no trust:
Buflfum V. Town of Tiverton, 16 R. I. 643, 19 Atl. 112, 7 L. R. A. 386.
Neither will a clause stating, "I devise all my estate to my beloved
wife feeling entire confidence that she will use it judiciously for
Estate of Whitcomb. 305
the benefit of herself and our children," create any trust: Lesesne
V. Witte, 5 S. C. 450. And likewise a clause stating, "I desire that
the land and other property remaining shall continue in the pos-
session of my wife L. during her life, believing she will make use
of it for the benefit of our children as well as her own comfort. At
her death I wish the property sold and an equal division made,"
was held not to create a trust: McCreary v. Burns, 17 S. C. 45. And
a will giving property to the wife, "having the fullest confidence
in her capacity, judgment, discretion and affection to properly bring
up, educate and provide for our children and to manage and dispose
of my said property in the best manner for their interests and her
own," creates no trust: Hunt v. Hunt, 11 Nev. 442. So, also, a
bequest to the wife of real and personal estate "in her own right
in fee simple" with a clause stating, "I only make this request of
her and only as a request, for I feel that her own kind heart and
good judgment will prompt her to do so without, viz., that in the
event she should marry again, she will see that the interests of our
children in said property are protected," was held not to create a
trust in favor of the children: Sale v. Thornberry, 86 Ky. 266, 5
S. W. 468. And where a will gave to the children of the testatrix
an absolute estate in lands, share and share alike, and then expressed
a desire that the children should live together and use the income
of the property only for ten years, it was held that no trust was
created by the precatory clause: Clark v. Clark, 99 Md. 356, 58 Atl.
24.
A bequest to a wife "to her own use and benefit as she shall deem
best for herself and our beloved daughter" creates no trust in favor
of the daughter: Bulfer v. Willigrod, 71 Iowa, 620, 33 N. W. 136.
And a clause stating, "I lend to my wife, during her life, all my
negroes, for the purpose of raising and educating my two sons,"
then giving in appropriate terms the remainder of his estate to his
wife as guardian of his sons, was held not to create a trust in behalf
of the sons with respect to the negroes: Mason v. Sadler, 59 N. C.
148. A clause in a will stating, "All the balance of my estate ....
I direct be and remain in the possession of my wife and children for
their support and the education of my children, and as my children
shall arrive at age or marry, I desire that my wife shall advance to
such child or children such an amount .... as she deems prudent,
but not exceeding a distributive share of my estate, as it is my in-
tention for my said wife to keep as much of my estate as will make
her comfortable during her widowhood; but should she marry again,
then she is to have no part of my estate," was held to create no
trust: Eowland v. Eowland, 29 S. G. 54, 6 S. E. 902. And no trust
was created where a testator devised his residuary estate to his wife
and stated it was given to her to the end that she might provide a
home where she could receive the children, and that he was confident
that it would be equally divided among all of them when she no
Prob. Dec, Vol. II — 20
306 Coffey's Probate Decisions, Vol. 2.
longer needed it: Aldrich v. Aldrich, 172 Mass. 101, 51 N. E. 449. So,
also, an absolute devise in fee of certain land to testator's wife fol-
lowed by a clause stating, "It is my request and wish that she will
.... make such provisions by will or otherwise .... that my son
W. may share equally of the estate .... willed to her, with my other
children," was held to create no trust in favor of the son: Mitchell
V. Mitchell, 143 Ind. 113, 42 N. E. 465. And where testator devised
certain land to his son declaring that it was his earnest request that
such son, if he should die without issue, should give the land or its
value to testator's daughter, W., if living, and, if not, to her children,
it was held insufficient to raise a trust: White v. Irvine, 24 Ky. Law
Eep. 2458, 74 S. W. 247. And so, also, where testator devised land
to his son absolutely, a subsequent clause requiring all of his children,
if any should die without issue, at their death, to will the property
received from his estate to testator's surviving children, or the issue
of those dead, it was held not to raise a precatory trust: Igo v.
Irvine, 24 Ky. Law Eep. 1165, 70 S. W. 836.
A bequest of unimproved land, which was of little benefit without
the power of disposition, to the wife "in her own name and for her
own purposes, with only the condition that" at her death she "make
an equal division of her estate to such children as shall survive
her, or their representatives," was held not to create a trust: Sears
V. Cunningham, 122 Mass. 538. And no trust was created where the
residuary estate, real and personal, was devised to the wife "to have
and to hold the same to her, her heirs and assigns forever, ' ' with a
request that she should devise the property to his children: Street v.
Gordon, 41 App. Div. 439, 58 N. Y. Supp. 860. And a devise of "all
the rest and residue of my property .... to my dear wife ....
believing that she will manage it judiciously, and perfectly satisfied
that she will make a fair distribution of it among our children at
her death," creates no trust: Cheston v. Cheston, 89 Md. 465, 43 Atl.
768. And where a will provided, "After the payment of my just
debts, I give, devise and bequeath all my estate, real and personal, to
my wife A., to her and her heirs, forever, recommending to her to give
the same to my children at such time and in such manner as she should
think best," it was held that the widow took an absolute estate in fee
simple: Gilbert v. Chapin, 19 Conn. 342. So, also, where the testator
willed to his wife his real estate "during her natural life," and iiis
"personal estate of every description .... absolutely, having full
confidence that she will leave the surplus to be divided, at her de-
cease, justly, among my children," it was held that the absolute own-
ership of the personal property of the testator was given to the widow
with an expression of mere expectation that she will use and dispose
of it discreetly as a mother: Pennock's PUstate, 20 Pa. 268, 59 Am.
Dec. 718. And a will which, after disposing of the residuary estate to
the husband "absolutely," expresses a wish that he shall arrange his
affairs, that at his death "whatever may remain" of his property will
go to the son of the testatrix, does not create a trust: Nunn v.
Estate of Whitcomb. 307
O'Brien, 83 Md. 198, 34 Atl. 244. And a bequest to two sons "assum-
ing" that they will do for another son and his family "all that the
truest fraternal regard may require," creates no trust: Rose v. Porter,
141 Mass. 309, 5 N. E. 641. So, also, where a bequest to an eldest
daughter "to dispose of as she may deem best for my daughters,"
naming certain younger daughters, it was held that the eldest
daughter took an absolute estate in fee simple: Hughes v. Fitzgerald
(Conn.), 60 Atl. 694. And a bequest to each of four adult children
with the residue to the widow, "requesting her that she will so dis-
pose of the property at her death as to make my youngest son S. an
equal legatee with the balance of my children, was also held to create
no precatory trust: Speairs v. Ligon, 59 Fed. 233. A devise of all
testator's property to his son who had taken care of him for several
years, and reciting that it was made principally in consideration of
such services, but expressing a wish that the son would do what was
right by his brothers and sisters with respect to the residue, if any
remained after a just compensation for such services, was held to
create no trust in the absence of fraud: Whitesel v. Whitesel, 23
Grratt. 904.
A devise to grandchildren in fee, but "admonished" and "charged"
that the gift was made "in the hope and upon the trust that they
will provide for their parents during their lives," was held to create
no trust: Arnold v. Arnold, 41 S. C. 291, 19 S. E. 670.
Step and Adopted Children. — A will directing the income of an
estate to be paid to the husband during life, "in the full confidence
that he will, as he has heretofore done, continue to give and afford
my children (by a former marriage) such protection, comfort and
support as they or either of them may stand in need of" creates no
trust: Warner v. Bates, 98 Mass. 274.
But a precatory trust is created by a clause in a will stating, "It
is my wish and desire that my wife continue to provide for the
care, comfort and education of T. J. M., now aged nearly five years,
who has been raised as a member of my family since his infancy,
and to make suitable provision for him in case of her death, providing
that he continue to be a dutiful child to her, and shows himself
worthy of such consideration": Murphy v. Carlin, 113 Mo. 112, 35
Am. St. Rep. 699, 20 S. W. 786.
Grandchildren. — Where a testator by one clause gave the residue of
his estate to his daughter and "to her heirs and assigns forever,"
and in a subsequent clause stated "I commit my granddaughter
.... to the charge and guardianship of my daughter S. L. C, in
whose honesty, goodwill and integrity I repose the utmost confi-
dence. I enjoin upon her to make such provision for said grand-
child out of my residuary estate now in her hands, in such manner,
at such times, and in such amounts as she may judge to be expedient
and conducive to the welfare of said grandchild, and her own sense
of justice and Christian duty shall dictate," it was held that the
daughter took an absolute title to the residuary estate, and that the
308 Coffey's Probate Decisions, Vol. 2.
provision for the granddaughter was left wholly to the discretion of
the daughter: Lawrence v. Cooke, 104 N. Y. 632, 11 N. E. 144. But
it was held where a testatrix devises all her estate to her son with
a provision that out of his inheritance he "is desired by his mother"
to pay, as soon as possible, $500 to his grandniece because of the
kindness bestowed upon testatrix by the grandfather of said grand-
niece, that grandniece was entitled to the gift: In re Copeland, 38
Misc. Rep. 402, 77 N. Y. Supp. 931.
But where a will provided, "I . . . . give and bequeath all my
property, real and personal, to my beloved wife, only requesting her,
at the close of her life, to make such disposition of the same among
my children and grandchildren as shall seem to her good," it was held
to create no trust: Foose v. Whitman, 82 N. Y. 405, 37 Am. Rep. 572.
And where a bequest was made to three daughters of certain personal
property to be equally divided, with a request for them to bequeath
such articles to his grandchildren, the request creates no trust: In
re Wlielen's Estate, 175 Pa. 23, 34 Atl. 329. So, also, where a clause
gave an estate to a daughter during her natural life, and at her
death directed the same to be equally divided among her children,
and by another clause expressed his "will and desire" to be that
should either of the grandsons arrive at twenty-one, or granddaughters
marry previous to the death of the daughter, that they should receive
a portion of the estate as a loan, to have the management and re-
ceive the benefit of the same until the final distribution, and then
return the same for division, it was held that it created no trust in
favor of the grandchildren: Lines v. Darden, 5 Fla. 51. And likewise
a devise of a farm to a son and daughter equally, ' ' to them, their
heirs and assigns forever, hoping and believing they will do justice
hereafter to my grandson D., to the amount of one-half of the said
homestead farm" was held to create no trust in favor of the grand-
son: Van Duyne v. Van Duyne, 14 N. J. Eq. 397.
Brothers and Sisters. — A trust is created by a devise of "all
the rest and residue of my estate, both real and personal, .... to
my two brothers, A and B, whom I appoint my executors, with full
confidence that they will settle my estate according to my will,
and that they will dispose of such residue among our brothers and
sisters and their children as they shall judge shall be most in need of
the same": Bull v. Bull, 8 Conn. 47, 20 Am. Dec. 86. Likewise a
trust is created in favor of a brother by a clause in the will stating
that, "having and reposing implicit confidence in the goodness and
kindness of my dear wife, I rely on her to make all needful pro-
visions for the future wants of my brother": Blanchard v. Chapman,
22 111. App. 341,
But a provision in a will requesting the sole legatee to give to the
sisters of the testatrix "any presents she may need and that my
estate can afford" is too indefinite and uncertain to create a trust in
favor of the sister: Webster v. Wathen, 97 Ky. 318, 30 S. W. 663.
And a residuary devise to the son, * ' his heirs, and assigns forever, to
Estate of Whitcomb. 309
his and their own use," subject to a charge for the support of wife
and the sister of testator, with a clause signifying a "desire and
hope" that he would "so provide by will or otherwise that in case he
shall die leaving no lawful heirs living" such residue "shall go in
equal shares" to certain named relations of the testator, including
brothers, sisters and cousins, was held to create no trust in favor of
the relations: Hess v. Singler, 114 Mass. 56. And a clause stating,
"I hereby will and bequeath unto my beloved wife A my whole estate,
real and personal, after the payment of my just debts, recommending
'to her at the same time to make some small allowance at her con-
venience to each of my brothers and sisters, say to each $1,000," does
not create a trust in favor of such brothers and sisters: Ellis v.
Ellis' Admr., 15 Ala. 296, 50 Am. Dec. 132.
A clause stating "it is my wish that such property as my wife may
have remaining undisposed of at her death that she should previously
will the same to her sister, and to my brothers and sisters in equal
proportions, leaving it entirely with her to make such disposition of
her property by will as her judgment shall dictate, merely expressing
my desire in the premises; and should she prefer to retain or dis-
pose of the property so conveyed and devised to her, in a manner
different from my wishes as herein expressed, she is at full liberty to
do so, without having her right or motives for so doing called in
question," does not create a trust: Toms v. Owen, 52 Fed. 417. So,
also, where a will gave the residuary estate to the wife "absolutely,"
followed by a clause stating, "I further request that she, my said
wife, shall assist any of my brothers or sisters if they should be in
need, and at her decease she should divide her property among them
as she may think best," it was held that no trust was created in
favor of the brothers and sisters: McDufiie v. Montgomery, 128 Fed.
105.
Nephews and Nieces, — A trust is created by a clause stating, "I
give, devise and bequeath unto my husband .... all my real and
personal estate absolutely I make this bequest in the full
faith that my husband will properly provide for the two children of
my deceased brother, Simeon, whom we have undertaken to raise and
educate": Noe v. Kern, 93 Mo. 367, 3 Am. St. Eep. 544, 6 S. W.
239. And a clause stating, "I desire that the said J. W. should, at
his discretion, appropriate a part of the income of my estate afore-
said, not exceeding $50 a year, to the support of the widow of M. E.,"
my sister's daughter, coupled with other expressions, was held to
create a trust: Erickson v. Willard, 1 N. H. 217. The case of Cresap
v. Cresap, 34 W. Va. 310, 12 S. E. 527, was also an instance of a
trust for the maintenance of a sister and niece.
But where the testator devised his whole estate to his wife, and
requested that if she should not require the whole of the estate as
a support, she should will the remainder at her death to the children
of testator's brother, it was held that no precatory trust was created:
Bryan v. Milby (Del.), 24 Atl. 333.
310 Coffey's Probate Decisions, Vol. 2.
And no trust is created by a clause stating, "And it is ray wish
and expectation that when my wife J. shall raake her will disposing
of the property left her by me that she will generously remember
the children of my deceased brother W. and such others as she may
choose: Kussell v. United States Trust Co., 127 Fed. 445. The case
of In re Whiteomb's Estate, 86 Cal. 265, 24 Pac. 1024, referred, in ad-
dition to a request for a disposition to a college, to a disposition in
favor of a grandnephew.
"Relations," "Near Relatives," "Blood Relations," and "Kins-
folk." — No trust was held to be created by a will which, after giving
the estate to the wife for life, recited that after providing for her
own wants and comforts she should, in her discretion, "give to such
of my relations such aid or assistance as my wife may, of her own
will, think proper and just": Corby v. Corby, 85 Mo. 371.
But a trust was held to be created where the testator gave the
residue of his estate to the wife "in good faith, believing that she
will make a will and thereby distribute so much of the last-named
legacy among my near relatives as she may not use for comfortable
maintenance; and it is my will that my said wife shall make such
distribution": Cox v. Wills, 49 N. J. Eq. 130, 22 Atl. 794. Though a
trust is not created by a clause stating, "I expect and desire that
my said wife will not dispose of any of said estate by will in such a
way that the whole that might remain at her death shall go out of
my family and blood relation": Matter of Gardner, 140 N. Y. 122,
35 N. E. 439.
A provision in an olographic will stating, "I have spoken of all
my property to be divided in this will .... without making any
outside bequests. I want to give to my wife an executrix's power to
give out of my estate, before division, as much as $15,000 of bequests
to my kinsfolk: Say to W. $5,000 or $10,000, in her discretion, and
the balance to some one else who may be in need," was held to
create a trust to the extent of $5,000; Ensley v. Ensley, 105 Tenn.
107, 58 S. W. 288.
Brothers and Sisters in Law. — A bequest to a wife of $10,000,
"which I desire her to use for the benefit of her brothers and sister,
according to her best judgment and discretion, which is to be paid
after the discharge of the debts," was held to create no trust:
Jacob v. Macon, 20 La. Ann. 162. See, also. Post v. Moore, 181 N. Y.
15, 106 Am. St. Rep. 495, 73 N. E. 482.
In Tom V. Owen, 52 Fed. 417, the husband had conveyed all his
property to his wife, merely reserving a life estate. Subsequently
he made a will stating that he wished to avoid all questions that
might arise about the previous deed. He devised all the estate to
her, and provided that his wife * ' should make free use of all the
property so conveyed and devised to her for her own use, or for
charitable purposes, knowing, that in case any of my immediate rela-
tions, or her sister, should, by any misfortune, or otherwise, need
any assistance, she would generously share with them, and therefore
Estate of Whitcomb. 311
I feel no hesitation in leaving with my wife the power to carry out
the wishes as expressed herein," the court held that no trust was
created.
Poor or Needy Relations. — In some of the clauses which we have
adverted to, it will be observed that the bequest was made with a
request that provision be made for such of the testator's relatives,
sometimes naming the particular degree of relationship, as should be
in need, or require assistance and similar phrases. For instance of
such phrases, see Bull v. Bull, 8 Conn. 47, 20 Am. Dec. 86; Blanchard
v. Chapman, 22 111. App. 341; Webster v. Wathen, 97 Ky. 318, 30
S. W. 663; Durant v. Smith, 159 Mass. 229, 34 N. E. 190; Willets
V. Willets, 35 Hun, 401; Tom v. Owen, 52 Fed. 417; McDuffie v.
Montgomery, 128 Fed. 105.
Servants and Strangers. — Where a will, after giving the estate
to the wife, provided: "It is my desire that it may suit her pleasure,
and if so, I request, but without intending to create a trust therefor,
that she allow and pay Ann Tarco, a mulatto, who has been for some
time in our service, $15 per month for life, for her support." The
will also provided that in case the wife did not survive him, he gave
the estate to an adopted daughter, charged with the payment of $15
to said mulatto. The wife survived him, and it was held that no
precatory trust was created: Ender's Exr. v. Tarco, 89 Ky. 17, 11
S. W. 818.
But in Chambers v. Davis, Phil. Eq. (62 N. C.) 152, 93 Am. Dec.
605, a trust was held to have been created where the testator recom-
mended in his will a certain person to the humanity of his executors,
and also in the will specified a sum to be set apart, the interest of
which was to be for the support of the person so recommended, who
was a slave, during his life.
Precatory Terms Relative to Charitable, Educational, or Other
Public Uses. — A bequest to executors "in their own right, trusting,
nevertheless, and believing that, under a proper sense of their obliga-
tion to their own consciences, and their accountability to God, they
will pay over and contribute the same to charitable objects," creates
no trust: Frierson v. General Assembly of Presbyterian Churches, 7
Heisk. 683. So, also, a statement that testator relies upon the
legatee to dispose of money for the benefit of such charitable and
benevolent and educational purposes as legatee shall judge will most
promote the comfort and improve the condition of the poor, or of
testator's descendants, if they become poor and needy, creates no
trust: Willets v. Willets, 35 Hun, 401.
The case of In re Ingersoll, 59 Hun, 571, 14 N. Y. Supp. 22, was an
instance of a bequest to an executor for church purposes, the testator
stating what he desired, but the court held that no trust was created.
And in Eberhardt v. Perolin, 49 N. J. Eq. 570, 25 Atl. 510, the prec-
atorv clause construed also had a recommendation respecting an
312 Coffey's Probate Decisions, Vol. 2.
increase of a fund toward a church, though the case seems to have
been fought on other lines.
And where a will provided, ' ' I give to my nephew .... and to
his son all my interest, either real, personal or mixed, in the Jimeno
Eanch And I recommend to my said nephew to leave his por-
tion thereof after his own death, and the death of his wife" to his
son and his children, or descendants, and, in default of such, to
Harvard College, the court held that no trust was created in favor
of the college: In re Whitcomb 's Estate, 86 Cal. 265, 24 Pac. 1028.
In the case of Succession of Hutchinson, 112 La. 656, 36 South. 639,
the bequest was to a university for the sole benefit of its medical
department. The will contained numerous recommendations, but they
were held not to amount to conditions. A somewhat similar bequest
was made in Pratt v. Trustees, 88 Md. 610, 42 Atl. 51, where the
residuary estate was given to an insane asylum. One clause of the
will stated that, while testator did not wish to alter the management
of the asylum, it was his "wish and will" that the estate given be
used to complete the present buildings, etc. The court held that no
trust was created.
A bequest to a city "with the request that the same be expended,
if such is sanctioned by law, in the erection of a drinking fountain in
the city," does not create a precatory trust: In re Crane's Will, 159
N. Y. 557, 54 N. E. 1089. So, also, where, in making a bequest for
the erection of a soldiers' and sailors' monument, the testator stated
that his "desire" was that it should be erected on a particular
triangular piece of ground in the town, it was held that the desire
was not imperative: In re Ogden, 25 E. I. 373, 55 Atl. 933,
A bequest of a certain sum to two legatees "as their absolute
property," followed by clause "I request said [legatees] to use said
fund thus given to further what is called the 'Woman's Eights
Cause'; but neither of them is under any legal responsibility to any-
one, or any court, to do so," creates no trust: Bacon v. Eansom, 139
Mass. 117, 29 N. E. 473.
And a bequest to a publication society of a church organization,
charging the society with the duty of using the gift in counteracting
"the unscriptural, unreasonable and pernicious doctrine of the im-
mortality of the soul" was held not to create a trust: Pierce v.
Phelps, 75 Conn. 83, 52 Atl. 612,
Estate op McGinn. 313
Estate of JAMES McGINN, Deceased.
[No. 7054; decided May 21, 1889.]
Costs and Counsel Fees. — Code of Civil Procedure, Section 1021,
discriminates between counsel fees and costs.
Words and Phrases. — In Defining Words and Phrases, Code of Civil
Procedure, section 16, means words are construed according to the
text (here of the statute) and the approved usage of the language.
Costs — Whether Include Counsel Fees. — The probate statutes in
speaking of costs mean simply the costs of the court, the expenses in-
cidental to the proceedings in the case, apart from counsel fees.
Will Contest — Costs and Counsel Fees.^ — Counsel fees in a will con-
test have no proper place in a bill of costs, and may be stricken out
on motion.
As will appear from the opinion, the question before the
court was whether an attorney fee could be taxed as costs
by the successful contestants to a will after original probate.
It was contended that section 1332, Code of Civil Procedure,
sanctioned such an expense as costs because the first sentence
of the section providing for the ease of an unsuccessful con-
test used the words ''fees and expenses" simply, although
the second sentence, as to a successful contest, used the single
word "costs." But the court granted the motion to strike
from the cost bill the item of counsel fee.
P. Reddy, for motion.
J. L. Crittenden, contra.
COFFEY, J. In section 1021, Code of Civil Procedure,
the distinction is drawn between counsel fees and costs. ' * The
measure and mode of compensation of attorneys and coun-
selors at law is left to the agreement, expressed or implied,
of the parties; the parties to actions or proceedings are en-
titled to costs and disbursements, as hereinafter provided."
That clearly discriminates between what is meant by costs
and what is meant by counsel fees.
Section 16, which defines words and phrases, reads: "Words
and phrases are construed according to the context and the
approved usage of the language; but technical words and
phrases, and such others as have acquired a peculiar and ap-
314 Coffey's Probate Decisions, Vol. 2.
propriate meaninf; in law, or are defined in the sueceedinc^
sections, are to be construed according to such peculiar ajid
appropriate meaning or definition." It means that words
and phrases are construed according to the text and the ap-
proved usage of the language.
Section 1332 reads: "Costs and expenses, by whom paid."
"The fees and expenses must be paid by the party contest-
ing the validity or probate of the will, if the will in probate,
is confirmed." That is the first sentence; the second sen-
tence reads: "If the probate is revoked, the costs must be
paid by the party who resisted the revocation, or out of the
property of the decedent, as the Court directs."
The word "costs" has a well defined meaning.
Mr. Crittenden. — We claim it means fees and expenses.
The Court. — Yes, sir, I understand. That is just what
I am coming to. Words and phrases are construed accord-
ing to the text. What is the text? "The fees and expenses
must be paid by the party contesting the validity or the pro-
bate of the will, if the will in probate is confirmed." Why
does the very next sentence use a different and a single word ?
"If the probate is revoked, the costs — " Why not repeat
the w^ords, "fees and expenses"? Why put in there another,
a different word? I really do not think that the legislature
meant anything more by "fees and expenses" than costs —
that there should be some intention to restrict the charge
upon the estate in case the will should be revoked after hav-
ing been once probated ; that it should be restricted to costs.
The preceding section and all the sections of the statute, so
far as I have examined them, which speak of costs mean
simply the costs of the court, the expenses incidental to the
proceedings in the case, apart from the counsel fees; and
the section which remits the costs of contests in will cases
to the category of civil actions shows that the principle main-
tained in such cases should govern this; and, therefore, as
no counsel fees are allowed in any civil action, none should
be allowed to be paid in the case of a contest ; and if there
be any distinction or discrimination in favor of the executors,
it is dependent upon the precise letter of the statute which
gives to the court expressly the right to award to the executor
Estate of McGinn. 315 V
or administrator reasonable counsel fees. Section 1718 gives
to the court the discretion to award a counsel fee for an ap-
pointed attorney, to be paid out of the estate primarily, and
ultimately to be charged against the interest represented by
the appointee.
Therefore, I do not think the counsel fee has any proper
place in a bill of costs, and the motion to strike it out is
granted.
Estate of JAMES McGINN, Deceased.
[No. 7054; decided December 30, 1889.]
Will Contest — Costs. — Fees of Jury, Clerk, Sheriff and Shorthand
Reporter taxed as costs of contestants upon revocation of probate of
will.
Will Contest — Costs — Mileage of Witness. — Mileage from San Luis
Obispo to San Francisco and return disallowed as costs; it appearing
that the residence of witness more than thirty miles distant from
place of trial, and that he, although demanding and being refused his
fees, nevertheless voluntarily attended.
Win Contest — Costs — Witness Fees. — A witness coming from San
Luis Obispo to San Francisco (not obliged to attend) only allowed two
days' fees; reduced from claim of six days.
Will Contest — Costs — Witness Fees. — Parties contestant to a pro-
ceeding to revoke the probate of a will are not entitled to witness
fees for testimony in their own behalf, nor to mileage.
Will Contest — Costs. — Fees of "Expert" Witnesses cannot be taxed
differently from those of other witnesses, as the court has no power
under the statute to allow other than ordinary witness fees.
Win Contest — Costs — Service of Subpoenas. — Item in cost bill, ser-
vice of twenty-seven subpoenas at $1.50 each, disallowed; no return
of service having been made, and it not appearing by whom served,
and charge being in excess of fee bill.
Will Contest. — Items In Cost Bill for Alleged Taking of Depositions
disallowed, upon objections that alleged witnesses appeared at trial,
that alleged depositions never returned or filed, and that items were
excessive.
Will Contest. — Item in Cost Bill of Attorney Fee of Contestant upon
revocation of probate of will disallowed as improper; construing Code
of Civil Procedure, section 1332 with sections 1716 and 1021.
The opinion of the court was delivered upon a motion to
tax costs. The motion was made upon behalf of the pro-
ponents of the will, as to the memorandum of costs and dis-
316 Coffey's Probate Decisions, Vol. 2.
bursements filed by the contestants upon the revocation of
the original probate. The motion separately submitted by
P. Reddy and W. H. Metson (dated May 1, 1889), as repre-
senting the proponents other than the executors, is taken for
reference to the objections considered by the court because
of its great particularity and formal specification, consisting
of forty-eight distinct objections to the various items claimed,
and covering twenty-four pages of typewritten matter, with
five additional pages of an affidavit in support thereof.
The objections in the motion involving propositions of
law, and specially passed upon in the opinion, are particu-
larly referred to as calculated to more fully elucidate the
court's opinion, when read in connection therewith, viz.:
Third objection, that mileage and expenses of witness from
San Luis Obispo and return, unreasonable, illegal and un-
just ; witness appeared voluntarily, and his deposition might
have been taken in county of residence. (See syllabus No.
2, also No. 3.)
Objections Nos. 9, 11, 12, 18, 28, 31, 39 : That witness one
of the parties contestant, and so not entitled to any fees at
all; also, never served with subpoena, but appeared and tes-
tified voluntarily. Same as to mileage and expenses of one
of parties from county of residence. (See syllabus No. 4.)
Twenty-ninth, fortieth and forty-first objections: That wit-
ness not paid by contestants the sum claimed, and not en-
titled to any sum other than $2 per day for witness fees,
whether an expert or otherwise. (See syllabus No. 5.)
Forty-second objection : That no subpoenas returned; charge
of $1.50 for each alleged service unreasonable, illegal, exces-
sive and unjust, and should not be in excess of twenty-five
cents for each service, and no fees allowable for any service,
except where returns actually made and filed in court. (See
syllabus No. 6.)
Objections Nos. 43, 44, 45 and 46, as to items for taking
depositions: That depositions never returned or filed; wit-
ness appeared at trial and testified; and charge excessive,
illegal, etc., and improper in excess of twenty cents for each
folio transcribed. (See syllabus No. 7.)
Forty-seventh objection, as to contestants' attorney ex-
pense: That (inter alia) said item improper in a bill of costs,
Estate of McGinn. 317
and no part of an attorney's fee taxable as costs. (See syl-
labus No. 8.)
Service of subpoenas (see syllabus 6) : By Statutes 1871-72,
page 776, sheriff's fees twenty-five cents, and for each mile
in going (only) twenty-five cents, includes certificate of ser-
vice.
Taxation of the costs (see syllabus 9) : Should be against
the estate. The resistance to the contest made in good faith :
Code Civ. Proc, sees. 1332, 1720.
The provisions giving the rule as to party liable for costs
taxed up in contestant's favor upon a revocation of the orig-
inal probate of a will (syllabus 9) : The only provisions of
the probate statute appear to be the two sections cited by
counsel, supra ; as to which it may be noted that section 1332,
by its terms, provides for this very case and for no other
(see Tiffany's Estate, May 21, 1888, Coffey, J., above) ; and
that section 1720, which is a general section forming part
of the omnibus chapter at the end of the general probate
statute, can only be considered as applying to the subject
matter of section 1332, semble, upon the ground that it is a
case "not otherwise prescribed in this title." The two sec-
tions are quoted, viz. :
"Section 1332. The fees and expenses must be paid by
the party contesting the validity or probate of the will, if
the will in probate is confirmed. If the probate is revoked,
the costs must be paid by the party who resisted the revoca-
tion, or out of the property of the decedent, as the court
directs. ' '
"Section 1720. When it is not otherwise prescribed in
this title, the superior court, or the supreme court on ap-
peal, may, in its discretion, order costs to be paid by any
party to the proceedings, or out of the assets of the estate,
as justice may require. Execution for the costs may issue
out of the superior court."
P. Reddy and W. H. "INletson, for respondents, Johanna
McGinn, and others.
James F. Smith, for executors.
James L. Crittenden, for contestants.
\
318 Coffey's Probate Decisions, Vol. 2.
COFFEY, J. 1. The cost bill is retaxed as follows:
Reporter's fees as charged, subject to such abatement as
may be authorized by payments already made by executors.
Jury fees and clerk's and sheriff's fees allowed.
2. Marcus Harloe, witness, mileage disallowed.
3. Witness fees are allowed as follows: (Here follows a
long list of witnesses with number of days allowed each,
all at $2 per day, not necessary to be copied. )
4. The following items are disallowed in toto :
IMrs. Mary A. Clements, who is a party to the action and
wntness in her own behalf as contestant.
Mrs. Emma Burns, on the same grounds.
Joseph McGinn, on the same grounds.
James E. McGinn, on the same grounds.
Thomas McGinn, on the same grounds.
Mrs. Johanna McGinn, on the same grounds.
Patrick H. McGinn, on the same grounds.
5. The charges in the bill of costs for the services of ex-
perts B. M. Gunn and Doctors Stallard, Mays and H. C.
Bowie are disallowed for reasons heretofore stated, that the
court has no power under the statute to allow other than or-
dinary witness fees.
6. The charge for serving subpoenas is disallowed.
7. The charges for taking depositions before Notary Har-
ris are disallowed for the reasons recited in respondent's ob-
jections.
8. The charge for services rendered as attorney and coun-
sel for contestants in the contest of the alleged will of de-
cedent is disallowed for reasons already stated by the court.
9. The costs as retaxed are a proper charge against the
parties respondent, and the estate is not liable therefor, and
the court orders the bill of costs heretofore filed to be retaxed
as hereinabove determined.
Exceptions to each and every of the foregoing rulings re-
served and noted for the respective parties to the action and
proceeding and motion.
Estate of Berton. 319
Estate of BERTHA BERTON, Deceased.
[No. 7245; decided March 19, 1892.]
Wills. — Every Portion of a Will must be Made to have Its Just
Operation, unless there arises some invincible repugnance, or else some
portion is absolutely unintelligible.
Wills — Transposition of Paragraphs. — Words or clauses of sentences,
or even whole paragraphs, of a will may be transposed to any extent,
with a view to show the intention of the testator.
Wills. — If an Immediate Distribution of the Estate after due ad-
ministration had in this case been contemplated, the testatrix would
not have made the expense of educating the children a charge upon
the estate.
Wills. — The Intent of the Testatrix in this Case was, that the estate
be kept whole until the children attain their majority, and the be-
quest to the husband is dependent upon his living until that time,
and was in a measure intended as compensation for the services ex-
pected of him by the testatrix in the promotion of the welfare and
the education of the children.
Distribution — Premature Application for. — The application of the
husband in this case for distribution, having been filed before the
children attained their majority, is premature and must be denied.
Bertha Berton died on April 3, 1888. The will set forth
in the opinion was admitted to probate and the survivingi
husband appointed executor thereof on May 10, 1888. He
filed a petition for distribution on October 17, 1891, and
objections thereto were thereafter filed by the guardian of
the children.
Sidney V. Smith, for petitioner.
Naphtaly, Freidenrich & Ackerman, for guardian of the
children.
COFFEY, J. Flavien Berton was the surviving husband
of decedent testatrix (her second spouse) and the executor
of her will and a legatee and devisee therein. The will is
in the following form, it being premised that the instru-
ment is olographic, and that from the evidence it appears
that it was written by a French woman, as may appear from
the idiomatic expression:
320 Coffey's Probate Decisions, Vol. 2.
"In the Name or God, Amen.
''I, Bertha Berton, of the City and County of San Fran-
cisco, State of California, being of sound mind and memory,
callinp: to mind the frealty of human life, desire to settle my
worldly affairs and direct how the estate of which it has
pleased God to bless me shall be disposed, at the time of my
decease.
"I do make and publish this my last will and testament,
hereby revoking all other wills and testaments by me made
heretofore.
"I comeud my body to the earth, to be buried with little
expense by my executors hereafter named.
"My will is, that all my debts and funeral expenses be
paid out of my estate by my executors.
"I desire to give to my only two beloved children, Michael
Albert Tschurr, born in San Francisco, and now residing
with my beloved father, Michael Corai, in Zug-Graubenden,
Switzerland, and my daughter, Anna Paulina Catharina
Tschurr, born and now residing in San Francisco, the summe
.of ten thousand dollars each, share and share alike; this
to be theyr separate part of my estate, which I give to them.
"I further give and bequeath the balance of my estate,
of which I may die seised or posessed, or to which I shall
be entitled at the tim.e of my decease, to my beloved hus-
band, Flavien Berton, of the City and County of San Fran-
cisco, my beloved son, Michael Albert Tschurr, and my be-
loved daughter, Anna Paulina Catharina Tschurr, share and
share alike. Each to receive one-third of my estate after
my two named children will have received theyr ten thou-
sand dollars each.
"My beloved son shall receive his share of my estate at
the time he attains the age of twenty-five years. It is my
wish that my only daughter should not mary before she at-
tains the age of twenty years. At that time, if she maries,
she to receive all her part of my estate, this to be forever
her own separate property outside of five thousand dollars,
which shall be her mother's wedding gift. Her husband
never to have any right to the ballance of her estate, but
the interests, her estate to be and remain her oivn separate
Estate of Berton. 321
property, at the time of her decase to go to her children, or
if there are no children, one-half to be given to her hus-
band, the other half to her brother or his hevers.
"Should it please God to call one of my children from
this earth before they should be maried, or have family, tlieyr
share to go share and share alike to theyr step-father, or
brother or sister.
"It is my will, that my children above named, being the
children of my dearly beloved husband. Christian Tschurr,
deceased, be well educated, theiji' education be paid out of
the interests of my estate. My son to choos the proifession
he wishes, or has talent for.
"I do nominate, constitute and apoint my beloved husband,
Flavien Berton, of the City and County of San Francisco,
to be the executor of this my last will and testament. I
have full confidence that he will do alt in his power to pro-
mote the wellfare of my two named children, and in this con-
fidence he shall not be obliged to give any bonds whatever.
He shall ,Tiave full power to sell at public or private sale, at
such time as he may deem best, all the property, real or per-
sonally of which I may die seised or posessed, and to which
I may be entitled at the time of my decase.
"Should my dear husband, Flavien Berton, be called from
this earth before my children attain theyr majority, his
share of my estate to go back to my said two children. Should
he remary, he to have only fife thousand dollars of my estate,
the ballance to go back to my two children, share and share
alilie. My beloved husband's father, Jean Berton, residing
at St. Sorlin Drom, France, I wish in case of our decase
to get one hundred dollars jearly for the time of his life, this
contribution to be paid out of the interests of my estate and
to cease at the time of his decase.
"I, the said Bertha Berton, has to this my last will and
testament set my hand and seal this the eightenth day of
April, in the year of our Lord One thousand eight hundred
and eighty-seven,
' ' ( Seal ) BERTHA BERTON. ' '
Testatrix was the mother of two children, the issue of her
marriage with her first husband, from whom she inherited
Prob. Dec, Vol. II — 21
322 Coffey's Probate Decisions, Vol. 2.
the estate that she disposed of by will. She married the ap-
plicant, Mr. Berton, about a year before her death. In the
will above quoted it appears that after giving to each of her
children $10,000 she undertakes to distribute the residue as
follows : " I give the balance of my estate to my beloved hus-
band, Flavien, and my beloved children — share and share
alike; each to receive one-third"; the estate to be distributed
at the time which she then undertakes to fix, the son to re-
ceive his share when he attains his twenty-fifth year, the
daughter her share upon her marriage, or, if she die without
issue, this share to go to her brother ; and, having stated the
conditions upon which these two residuary legatees shall ob-
tain their one-third of the estate, she limits the legacy given
to Berton, by providing that should he die before her two
children attain their majority, the share bequeathed to him
shall go back to her children.
It is agreed by all the counsel that the postponement of
the son's interest, there being no intermediate estate and no
trust created to support it, is inimical to the absolute nature
of the devise, and must be disregarded as void. So, likewise,
the limitation over of the daughter's share after her decease
to her children may be overlooked, the estate being all per-
sonalty.
It is claimed by counsel opposing the application that, as
the evidence before the court shows that these children are>
not of age, Berton 's application is premature, and he must
wait until these children reach their majority before he can
claim distribution of the estate.
The court should ascertain and execute the intention of the
testatrix.
Redfield in his work on Wills says (volume 1, pages 430-
432) : "There is, perhaps, no rule of construction of more
universal application to wills, or which oftener requires to
be acted upon, than that every portion of the instrument must
be made to have its just operation, unless there arises some
invincible repugnance, or else some portion is absolutely un-
intelligible." (Page 435, rule 14.)
The next rule of construction laid down by him is rule 15 :
"There is no more clearly established rule of construction, as
Estate of Berton. 323
applicable to wills, than that words or clauses of sentences, or
even whole paragraphs, may be transposed to any extent, with
a view to show the intention of the testator." Where a con-
struction of a will "gives effect to all the provisions of the
will, and renders them all harmonious and consistent, both
with each other and with the general purpose and intent of
the will, it affords very satisfactory ground of presumption
that it reaches the source of the difficulty, and explains the
mode in which it arose."
In the light of these rules of construction, what was the
intention of Mrs. Berton as expressed in her will with refer-
ence to the bequest made to her husband? With much par-
ticularity, and with the love of a mother for her children, she
fixes the time when they are to enjoy the estate bequeathed
to them at a period when they are presumed to know the value
of money. Her son is to have his share when he is twenty-
five years of age — her daughter when she marries; and, feel-
ing that her children are entitled to this estate, made for
them by her labor, and not that of their stepfather, who,
though kindly spoken of by Mrs. Berton in her will, is never-
theless a stranger to them, she declares that he is entitled to
his share after they have become of age or married. In giv-
ing her husband one-third of her estate, but making the gift
dependent upon his living after said children attain their
majority and marry, she was influenced thereto by the belief
that her second husband deserved and should be compensated
for his labor expended and interest taken in the welfare and
education of said children. By the terms of her will she re-
fers to the services expected of him in behalf of these chil-
dren in these words: "I have full confidence that he (Berton)
will do all in his power to promote the welfare of my two
named children" — and beyond all that, and as indicative of
the full and matured intent of the testatrix to keep her es-
tate intact and undisturbed during the minority of said chil-
dren, she charges said estate with the expense of educating
them, in these words : " It is my will that my children above
named, being the children of my dearly beloved husband.
Christian Tschurr, deceased, be well educated, their educa-
tion be paid out of the interest of my estate. " If an imme-
324 Coffey's Probate Decisions, Vol. 2.
diate distribution of the estate (after due administration)
had been contemplated by the testatrix, she would surely have
imposed no such charge upon the estate. Can it not fairly
be maintained that the import of this language is that the
money of the estate should be so invested as to yield an in-
come, and such income or interest be applied, so far as nec-
essary, toward the education of said children, who were, at
the time of the execution of said will, and still are, being
educated abroad?
The court adopts the argument, to the extent hereinabove
indicated, against the application,, and believes that the intent
of the testatrix is carried out in the keeping of the estate
whole until the minor children attain their majority.
The petition for distribution is denied.
In Construing a Will, Effect Should be Given, if possible, to every
object and every expression therein contained. It is a fundamental
rule that the words of a will are to receive an interpretation which
will give to every expression some effect, rather than one which will
render any of the expressions inoperative: Webster v. Thorndyke, 11
Wash. 390, 39 Pac. 677; Rhoton v, Blevin, 99 Cal. 645, 34 Pac. 513;
Estate of Mayhew, 4 Cal. App. 165, 87 Pac. 417; Estate of Stratton,
112 Cal. 513, 44 Pac. 1028; Estate of Tompkins, 132 Cal. 173, 64 Pac.
268.
A Court cannot Keform a Will after the death of the testator; nor
can it transpose words or provisions therein, so as to change the import
and meaning, when the intention of the testator can be discovered
from an examination of the instrument as it is written. However,
courts, in reading a will, do not hesitate to transpose words, supply
omitted ones, and reject those that are repugnant, when necessary to
do so in order to give effect to the evident meaning and purpose of
the testator: 1 Ross on Probate Law and Practice, 73.
Estate of Levinson. 325
Estate of JOHN LEVINSON, Deceased.
[No. 9438; decided May 2, 1891.]
Inventory — What must be Included in. — An executor must return
in the inventory everything of value belonging to the estate of his
testator, whether it is property owned by or a debt due the estate.
Inventory. — The Goodwill of a Business is Property, so is a Trade-
mark; and where the decedent was a member of a partnership, the
goodwill of the business and a trademark owned by it should be em-
braced in the schedule of assets in the inventory, unless there is a
clear provision in the articles of partnership excluding the estate of
a deceased partner from a share in the value thereof.
Contracts. — Particular Clauses of a Contract are Subordinate to Its
Greneral Intent, and the whole of a contract should be taken together
so as to give effect to every part if reasonably practicable, each clause
aiding in the interpretation of the other.
Inventory. — Assets of a Firm Include the Goodwill of the business
and trademarks owned by the firm.
Inventory — Doubtful Assets. — Even if the Question is in Doubt and
equally balanced, whether an estate is or is not to be deprived of a
share of the goodwill of a business trademark, it must be included
in the inventory.
Horace W. Philbrook, for heirs of decedent.
Jarboe & Harrison, for S. W. Raveley, executor.
Reinstein & Eisner, for surviving partners.
COFFEY, J. Mrs. Fanny Levinson, the mother, and Miss
Julia Levinson and ]\Iiss Ida Levinson, sisters of the above-
named decedent, all being legatees in the will of said dece-
dent, have presented a petition asking that the executor of
said will be required to make and return to the court a true
inventory and appraisement, and also that he require an ac-
count from Wm. J. Newman and Benjamin Newman, sur-
viving partners of the firm of Newman & Levinson, of which
firm said decedent was one of the founders and a member up
to the time of his death.
The executor has demurred to said petition, contending
that it does not state facts sufficient to entitle the petitioners
to relief. The said surviving partners have also filed a de-
murrer to said petition upon the same ground.
326 Coffey's Probate Decisions, Vol. 2.
The matter before the court is the issue of law arising upon
these demurrers.
The question to be determined is whether the estate of said
decedent has any interest in the goodwill of and in the trade-
mark belonging to the partnership of Newman & Levinson
up to the time of the death of the decedent, John Levinson ;
whether the said goodwill and trademark respectively must be
valued in determining what is due to said estate from said
partnership, or from the said surviving partners. This ques-
tion is to be determined by a consideration of the provisions
of the articles of partnership of said firm, set forth as Exhibit
"C" in the petition, and particularly of that clause of said
articles designated as "XII," pages 22-24 of said petition, in
connection with the averments of said petition.
In the inventory and appraisement returned by the execu-
tor to the court the interest of the estate is thus set forth:
"The interest of the deceased in the partnership of Newman
& Levinson, of which the deceased was a member at the time
of his death, the business of said partnership being carried
on at Nos. 129-131 Kearney street, San Francisco, appraised
at $20,790.80."
It is set forth in the petition that before returning this
inventory the executor was by the petitioners requested to
cause the inventory and appraisement to show in detail what
was meant by "the interest of the deceased in the partner-
ship of Newman & Levinson," therein mentioned, and that
the executor refused to comply with said request. It is also
set forth in said petition that no share of the value of the
goodwill of the business of said partnership or of the trade-
mark mentioned in the petition is included in said inventory.
I should have decided this matter from the bench at the
conclusion of the oral argument, December 10, 1890, but from
respect to the desire of counsel to supplement their views by
briefs. The delay in announcing the decision of the court is
due to the labor imposed by examining the elaborate expositions
of counsel and consulting the numerous authorities by them
cited. While the discharge of this duty involved labor, it
was also interesting and instructive, and it is to be hoped that
the result will be satisfactory to the prevailing party.
Estate of Levinson. 327
It is insisted upon the part of the demurrants that by the
articles of copartnership the surviving partners became
debtors of the estate, and that the only relation here being
that the debtor and creditor, the representatives of the de-
ceased partner have no further connection with the concern
except as creditors ; and that, upon the principles laid down
in all the authorities, the demurrant executor has returned a
complete and perfect inventory, the omission of the goodwill
and trademark being necessary under the terms of the articles
of copartnership, which vested in the surviving partners such
items to be accounted for to the estate as a debt, but not as an
available asset to be inserted in the inventory.
It is claimed by the demurrants that Article XII of the
copartnership agreement transfers in terms or by necessary
implication the goodwill of the firm, and that the articles of
copartnership should be the guide for the court, and that
where they do not violate the statute such articles may take
its place.
It is immaterial, with regard to the subject matter of this
controversy, whether the relation of the estate to the part-
nership is that of owner of an interest therein or that of
creditor. Even if only a creditor, it is still the duty of the
executor to return a correct statement of the debt due the es-
tate from the partnership.
The legal proposition here is simply this: If it be a thing
of value it must be returned in the inventory. This is the
law of this state, binding upon the executor. It is scarcely
necessary to cite the sections of the codes defining the execu-
tor's duty in this regard, so well is it understood, nor is it
requisite in this connection to repeat references to the sec-
tions fastening the quality of property upon goodwill and
trademark. It is settled that these things are property, and
should be embraced in the schedule of assets in the inventory
and appraisement, unless there be an express agreement for
their exclusion.
To exclude the estate from a share in the value of the good-
will and trademark of the partnership, there should be a clear
provision to that effect in the articles of agreement.
328 Coffey's Probate Decisions, Vol. 2.
Article XII of the agreement of copartnership, upon the
construction of which it is claimed the decision of this contro-
versy must depend, is as follows :
"XII.
"In the event of the death of one of the copartners the
inventory provided for herein shall be taken as expeditiously
as possible, and without unnecessary delay; the surviving
partners, if requested so to do, shall admit to the place of
business of the firm at least one person, selected, designated
and empowered by the heirs or legal representatives of the
deceased partner to represent the interest of his estate in the
copartnership ; such person, so representing the interest of the
estate of the deceased partner, shall have accorded to him ac-
cess to all the books, papers and accounts of the firm, and
may, at his election, remain and continue at the place of busi-
ness thereof until all matters relating to the interest of the
deceased partner and his estate shall have been fairly and
satisfactorily arranged, and settled and adjusted, and the
total amount due to the estate of the deceased partner shall
have been ascertained and determined.
"The total amount ascertained and determined to be due
the estate of the deceased partner, on account of his interest
in the copartnership, shall be paid to the heirs or the legal
representatives of the deceased partner, in twelve successive
and equal monthly installments, commencing within one month
from the time the amount so due has been ascertained and de-
termined ; for the amount of which installments the surviving
partners shall execute and deliver to such heirs or legal repre-
sentatives their promissory notes, payable as aforesaid, with-
out interest, and satisfactorily secured by indorsement or
otherwise; provided, however, that the surviving partners
shall have the option to continue the said copartnership, the
estate of the deceased partner taking the place of the dece-
dent, on such terms and conditions as may be agreed upon
between the surviving partners and the legal representatives
of the deceased partner, but it shall not be obligatory upon
.the surviving partners so to do. The surviving partners and
their successors shall also have the right and privilege of con-
Estate of Levinson. 329
tinning the said business under the said designation and name
of Newman & Levinson."
Before dealing with this article specifically, it may be well
first to consider the general scheme and scope of the agree-
ment with regard to the right of a partner in the property
of a partnership after dissolution, inasmuch as, according to
the code, particular clauses of a contract are subordinate to
its general intent, and the whole of a contract should be taken
together so as to give effect to every part, if reasonably prac-
ticable, each clause aiding in the interpretation of the other.
Of course, as counsel for demurrants observes, the provi-
sions of our statutes as found in the codes are simply declara-
tory of the law as it existed always; they do not change in
any respect the law as it was adjudicated before their enact-
ment, and, consequently, cases arising under the law as it
stood anterior to the code may be appositely cited.
In the copartnership contract three distinct provisions may
be noted :
1. A provision regulating the manner in which the partner-
ship property shall be disposed of and divided among the
partners, in case they shall be all living at the expiration of
the term agreed upon for the continuance of the partnership,
and the partnership be not renewed (Article XIII) :
"XIII.
"At the time of the expiration of said partnership, under
the terms hereof, if no new articles of copartnership have
been agreed upon nor the present ones continued in force,
and the copartnership renewed in the manner hereinafter
provided for, the inventory shall be taken and appraisement
made substantially in the manner hereinbefore provided in
the case of the j-early inventory ; thereupon the assets shall
be turned into cash, if necessary, and the total amount of all
the debts and liabilities due or owing by the copartnership to
third persons shall be paid ; next in order, the surplus capital,
if any, standing to the credit of any partner, with any inter-
est due thereon, as hereinbefore provided for, shall forthwith
be paid to the partner entitled thereto ; to meet such payment
recourse must be had to all the cash of the copartnership re- •
maining on hand or in bank, to the stock of merchandise on
332 Coffey's Probate Decisions, Vol. 2.
scheme or plan ; and in attempting to develop the scope of
that plan this court conceives it can do no better than to adopt
the views verbatim of counsel for petitioners.
What is that scheme or plan 1
First — At the expiration of the term, if all the partners are
alive and do not renew the partnership, the ''assets shall be
turned into cash, if necessary," and certain sums shall then
be paid the respective partners. Then "the residue of the
assets of the partnership .... shall be sold to the partner
who will make the highest and best bid therefor," and the
proceeds shall then be divided among all the partners. Now,
the terms "assets" and "residue of the assets" include the
goodwill and trademarks.
Counsel for the surviving partners denies that these words
"residue of the assets" include goodwill because of the next
following words, "including cash on hand or in bank, store
and office fixtures, merchandise, outstanding accounts, and
all claims and demands," etc. But counsel is clearly wrong
in this, for his contention requires the insertion of the word
"only" or "exclusively," or an equivalent, after "includ-
ing," or the change of "including" to "consisting of," so
as to make the passage read ' ' the residue of the assets, includ-
ing (only) or (exclusively)," or so as to substitute "consist-
ing of" in place of "including." But the word "including"
does not mean "including only," or "including exclusively,"
or "consisting of," and there is no warrant for making any
such change as the counsel wishes. And, besides, the "as-
sets" mentioned which "shall be turned into cash if neces-
sary" are not followed by even such a word as "including.'*
All the assets must be sold and the proceeds divided. All the
assets include the goodwill and trademark. And the provision
clearly is that in case all the partners live till the end of the
term of the partnership agreed upon, and do not renew the
partnership, all of them shall share in the value of the good-
will and trademark.
This provision is obviously reasonable and just.
Second — ^It is provided (Article XIV, supra) that if any
partner shall break the partnership contract — shall break up,
by withdrawal or otherwise, the partnership — before the ex-
piration of the term agreed upon, he shall forfeit something —
Estate of Levinson. 333
more if within the first six months, less if after six months
and within the first two years.
For this, too, there is an obvious reason, the purpose being
to deter each copartner from breaking the contract of part-
nership.
Third^ — We come finally to Article XII, upon the language
of which the decision of the controversy is to turn.
We find here the provision that upon the death of one of
the copartners "the inventory provided for herein shall be
taken." Whether the inventory referred to here is the same
as the annual inventory mentioned in Article VII on which
profits are computed, or a special undescribed inventory, is not
prefectly clear, for in Article XIII we find it provided that
an "inventory shall be taken and appraisement made sub-
stantially in the manner hereinbefore provided in the case of
the yearly inventory," language quite different from "the
inventory provided for herein" in Article XII. But it is
scarcely material whether the words "the inventory provided
for herein" mean an inventory made like the annual inven-
tory provided for in Article VII or not, for in Article XIII
the inventory provided for is expressly directed to be made
up substantially like the annual inventory; and Article XIII
does provide that the value of the goodwill and trademark
shall, at the end of the term, be divided among all the part-
ners, if then living. It is therefore clear that even if the
words "inventory provided for herein" in Article XII mean
an inventory made up substantially as described in Article
VII, this would not be at all inconsistent with the idea that
the value of the goodwill and trademark is to be divided. But
while it is scarcely material to consider what is meant by the
words "inventory provided for herein" in Article XII, it is
worth mentioning that there seem to be three species of inven-
tory provided for in these articles of partnership, viz.: (1)
In Article VII an inventory made up in a manner there speci-
fied and for the purpose of computing annual profits; and
for that purpose it would be clearly useless to put the value
of the goodwill or trademark into the inventory (Steuart v.
Gladstone, Wade v. Jenkins); (2) In Article XIII an "in-
ventory .... made substantially in the manner" described
in Article VII; and (3) in Article XII an "inventory pro-
334 Coffey's Probate Decisions, Vol. 2.
vided for herein," that is, provided for in Article XII — an
inventory made up not in any specified way, but in such rea-
sonable manner as to subserve its purpose.
Next, we notice that the representative of the estate of the
deceased partner is entitled to be present until "the total
amount due to the estate of the deceased partner shall have
been ascertained and determined." This indicates that the
surviving partners are not expected to be the sole judges of
what the interest of the estate in the partnership shall be, for,
if so, of what benefit would it be to the representative of the
deceased to supervise their proceedings? And even if the
articles of partnership did provide for the surviving partners
to be the sole judges in the matter, such provision would be
void. For, on the contrary, it is for a court of justice to de-
cide what is the *' total amount due to the estate": See 12
Am. & Eng. Ency. of Law, p. 305, and n. 1.
Finally — "The total amount ascertained and determined
to be due the estate of the deceased partner on account of his
interest in the partnership shall be paid" to the estate, and
thereupon the surviving partners shall succeed to the prop-
erty of the partnership, and "shall have the right and privi-
lege of continuing the said business under the said designation
and name of Newman & Levinson. "
There is nothing here like the provision in Steuart v. Glad-
stone, L. R. 10, Ch. D. 626, that the estate is to receive only
"the sum which shall appear at the credit" of the deceased
partner upon the books or upon any inventory, even if the
inventory to be taken is to be made up like the annual inven-
tory mentioned in Article VII. For, even if the inventory
to be taken were to be made up like the annual inventory
mentioned in Article VII for arriving at the profits, and with-
out setting down the goodwill and trademark therein — even
such an inventory would answer every purpose in ascertain-
ing the "total amount due to the estate"; for, in any event,
the goodwill and trademark would have to be taken into con-
sideration and valued separately. And, further, while there
is no provision limiting the interest of the estate to the "sum
which shall appear at the credit" of the deceased partner
upon any inventory, the amount to be paid to the estate shall
be, without any limitation, "the total amount ascertained and
Estate of Levinson. 335
determined to be due the estate of the deceased partner on
account of his interest in the partnership ' ' ; and this shall be
after "all matters relating to the interest of the deceased
partner and his estate shall have been fairly and satisfactorily
arranged, and settled, and adjusted."
The substance of Article XII clearl}' is, as was the ease in
Hall V. Barrows and other cases cited by counsel for applicant,
that the surviving partners have the privilege of buying out
the interest of the decedent at its actual value.
Eeynolds v. Bullock, 47 L. J. Ch. 773 (decided in 1878
by the chancery division of the high court of justice), is
a most valuable decision, rendered after a full and able argu-
ment. The partnership was dissolved by expiration of the
term agreed upon, and b}^ the twenty-sixth and twenty-
eighth clauses of the partnership deed the defendant was en-
titled to succeed to the partnership business and property,
being bound to pay the plaintiff the value of his share in
the "property and effects" of the partnership. The plain-
tiff sued for his share in the value of the goodwill. The
decision is so pertinent to the case at bar that it may be well
to quote. The court said:
"It appears to me that the goodwill ought to be valued
for the present purpose. It is a question of the contract
of the parties, arising upon the twenty-sixth and twenty-
eighth clauses of the deed of partnership ; in other words,
it is a question whether goodwill comes under the words
'property and effects.' It was settled by Hall v. Barrows,
32 L. J. Rep. Ch. 538, etc., that it is part of the property
and assets of a firm. The fact in the present case, that the
business was the defendant's when the partnership began,
seems to me material ; the goodwill of the business at the end
of the partnership is a new and different thing from that
which existed before. As to the other cases mentioned, I
think that Burfield v. Rouch. 31 Beav. 241, and Hall v. Hall,
20 Beav. 139, are not authorities on this question. Austin
v. Boys, 24 Beav. 598, etc., cited in Mr. Justice Lindley's
book, was a case of a special kind, which depended very
much upon the terms of the particular contract, and affords
no assistance for the present case. The view of Sir William
Grant in Kennedy v. Lee, 3 Mer. 441, like other early cases
336 Coffey's Probate Decisions, Vol. 2.
iu reference to goodwill, is really inapplicable to the present
law on the subject. I quite agree with the observations as
to the desirableness of making such things as these plain in
the contract; if this had been done the present question
would not have arisen, but I think that a particular provi-
sion was required, expressly negativing the view that the good-
will was to be deemed part of the business, and stipulating
that it should, at the expiration of the term, belong to the
defendant solely. It is perhaps unlikely that the plaintiff
would have accepted such terms; at all events, no such terms
were made, and therefore the goodwill must now be dealt
with as part of the property."
I consider the case of Hall v. Barrows, 3 N. R. 259, as the
most appropriate of all the cases cited to the matter here
in controversy. That was an action by the executors of Hall
against his surviving copartners for a share in the value
of the goodwill of the business and of the trademarks of
the former firm. By the partnership articles the estate was
entitled to receive from the surviving partners the value
of the share in the estate in the partnership property, the
surviving partner having the right to take the same at a
valuation and to succeed to the business. Lord Chancellor
Westbury held that the goodwill of the business ought to be
taken into account in the valuation ; and, also, that the exclu-
sive right to use the trademark was part of the property of the
partnership and ought to be included in the valuation. While
this case is not among those cited or adverted to by counsel
for demurrants, the argument for surviving partner is singu-
larly similar in both cases and upon a state of facts quite
analogous.
(See argument on page 260 and remarks of lord chan-
cellor on page 263, 3 N. R.)
Even if the question were in doubt and evenly balanced,
whether the estate is or is not to be deprived of a share of
the goodwill and trademark, then the decision must be in
favor of the estate.
It is clear, however, to the mind of the court that upon
the death of one of the partners he is not to suffer thereby
any forfeiture of his property, but his estate is to receive his
full and fair share in all the property assets of the partner-
Estate of Blythe. 337
ship, not in any wise forfeiting the decedent's share in that
part of the partnership property — more valuable than all the
rest — the goodwill of the business and the trademark. And
this conclusion makes the partnership contract intelligible,
reasonable, consistent and just.
It follows from the foregoing that the demurrer should be
and it is overruled.
Estate of THOMAS H. BLYTHE, Deceased.
[No. 2401; decided November 29, 1890.]
Minor and Absent Heirs — Appointment of Attorney by the Court. —
The court is authorized, in its discretion, under Code of Civil Pro-
cedure, section 1718, to appoint a competent attorney to represent
minor heirs having no general guardian in the county; heirs and cred-
itors who are nonresidents of the state, and other interested parties
who are unrepresented. The exercise of this power imports no censure
upon the counsel for the administrator; it is assistive and not ob-
structive.
Minor and Absent Heirs — Compensation of Attorney. — There is no
absolute standard by which to fix the compensation of an attorney
appointed by the court to represent minor or absent heirs. A small
estate may entail greater labor and relatively larger responsibility
than an estate of magnitude. The size of the estate is a factor but
not the prime one in the question. Each case must therefore depend
upon its own circumstances.
E. R. Taylor, for the application.
Wm. H. H. Hart, John H. Boalt and Thomas I. Bergin, for
Florence Blythe, contra.
COFFEY, J. This is an application for compensation by
Dr. Edward R. Taylor, an attorney and counselor of this
court, for legal services rendered under and by virtue of an
order of appointment made and entered on the thirty-first
day of December, 1885.
Applicant accompanies his petition with a schedule of the
services for which he claims compensation. This schedule in-
cludes the services in and about the trial of the contest of
heirship in the matter entitled "Florence Blythe versus Ab-
bie Ayres and others."
Prob. Dec, Vol. 11—22
338 Coffey's Probate Decisions, Vol. 2.
For the purpose of this decision, and without prejudice,
the court declines to consider and discards so much of the
said schedule as embraces the trial of said action or contest
of heirship.
Apart from these items, comprehending the trial of the
action from and including July 15, 1889, to and including
June 27, 1890, the court is clearly of opinion that the peti-
tion is meritorious.
The petitioner has been active and diligent under said
appointment, and has been of great service to the said es-
tate in the matter of the conservation of its assets, and has
also been of service to the court in enabling it to reach cor-
rect conclusions in many difficult matters coming before it
during the administration of said estate. A very consider-
able part of said services has been rendered under the eye of
the court, and some of them by its specific direction.
The appointment was conferred of the court's own motion,
and without the petitioner's precognition or through any so-
licitation or suggestion, but by reason of the necessities of
the situation, of the peculiar position of the estate, and of
the eminent fitness of the petitioner for the trust.
The reasons which prompted the court to make the appoint-
ment in the first instance have been justified by the results
to the estate.
The authority for the action of the court is found in the
statute, section 1718, Code of Civil Procedure, and I am of
opinion that the necessity for the continuation of the appoint-
ment lasted until the determination of the question of heir-
ship — that is, as to matters of probate administration — but
not longer.
The objections to the application are all and severally over-
ruled, and an exception noted in behalf of objectors.
I have no doubt of the power of the court in the premises.
As to the prudence with which it has been exercised in the
particular ease, there can be no question when we consider
the resultant advantage to the estate of the labors of the
appointed attorney ; and this may be intimated with due credit
to the administrator and his employed counsel.
Estate of Blythe. 339
One or two instances suffice to show that, notwithstanding
the fact that the administrator was represented by counsel
of approved ability, the estate was benefited by the efforts
of the petitioner. In the case of the so-called "Mexican As-
sets" a strenuous endeavor was made to obtain large appro-
priations, in addition to those already made, for the purpose
of carrying on a scheme begun in the lifetime of decedent,
which endeavor was sturdily and successfully resisted by the
appointee of the court. The good faith of the administrator
and his counsel was not questioned, but the propriety, policy
and legality of continuing the adventure begun by the dece-
dent was stoutly opposed by the petitioner, and his view finally
prevailed.
The court does not hesitate to declare that the present
prosperous condition of the property of the estate was largely
due to the result of that contention, in which the petitioner
labored almost unaided, and in which the counsel now op-
posing his application lent no assistance, but to which, as
the court understood, and still understands, he was adverse,
as were almost all of the counsel for the so-called ' ' collateral ' '
claimants.
In the matter of the application of the administrator to
participate in the contest as to heirship, under section 1664,
Code of Civil Procedure, which application was urged from
a sense of duty and obligation by the counsel for the late
administrator, the appointee of the court maintained success-
fully the proposition that the administrator had no interest
in the litigation which demanded or justified his partici-
pation therein, and the court so held, and was sustained by
the tribunal of review, the petitioner herein acting in these
proceedings by special direction of this court.
These are two notable instances of the prudence with which
the court acted in pursuance of the power conferred by sec-
tion 1718, Code of Civil Procedure.
It may be seen from these two eases, and from many
other instances, that the labors of the appointed attorney
were of service to the estate and necessarily to the client of
counsel now objecting to his petition for compensation.
340 Coffey's Probate Decisions, Vol. 2.
His appointment was not antagonistic to the employment
by the administrator of counsel, nor intended to interfere
therewith, nor to harass, obstruct or embarrass that counsel,
but directly in conformity with the provision of the Code
of Civil Procedure which conferred a discretionary power
upon this court.
The exercise of this power imports no censure upon the
counsel for the administrator. It is rather to his advantage
than detriment. It is assistive and not obstructive. It is
idle to say he stands in no need of assistance. The law has
declared that the court may, in its discretion, appoint a com-
petent attorney at law to represent certain classes of persons,
such as are embraced within the order of appointment herein.
But the court does not infer, from the opposition here made,
that it proceeds from the administrator. He has no cause of
quarrel with the act of appointment, nor can anyone else
assume such a cause for him.
The principle upon which this petition stands was de-
termined in this court in this estate January 6, 1885, and
the court perceives no change in the circumstances to author-
ize an abandonment of the position then taken.
With respect to the amount of allowance, it is more diffi-
cult to decide. Opinions differ so widely that it is rare to
find an award of the court satisfactory to any, much less to
all parties, and seldom can the court feel entirely assured
that it has fixed a fee that is exactly equivalent to the service
rendered. It is, perhaps, the least welcome of the incidental
duties of the court, to gauge the value of the services of
counsel.
There is no absolute standard, and each case must depend
upon the uncertain measure applied by the court, which is
apt to err either way in its estimate.
One counsel says a large estate must pay a large fee. Not
so, necessarily. A small estate may entail greater labor and
relatively larger responsibility than an estate of magnitude.
The size of the estate is a factor, but not the prime factor, in
the question.
An estate of comparatively small value may be more com-
plex in character than one of much greater pecuniary im-
portance.
Estate of Blythe. 341
The value and character of the estate are essential ele-
ments in considering the amount of counsel's compensation.
In the case here the estate is of unusual magnitude, ap-
praised at several millions of dollars; diversified in quality
(although much simplified since the removal of several ex-
crescences that originally menaced its solvency), and has
given rise to many important and delicate, if not novel,
questions, the intelligent discussion and correct determina-
tion of which were of vital consequence to the inheritance.
In these discussions the assistance of the appointed attor-
ney was of great advantage to the estate, especially so where
he differed from the attorney for the administrator, and
where the court had the right to be aided by counsel of its
own selection under the statute.
Of course the principal share of the burden of labor and
responsibility throughout the administration was borne by
the administrator's attorney, and the fact that in many im-
portant matters the appointed counsel for the heirs differed
from him, and that the court agreed with the latter, by no
means detracts from the just claims of the former.
The period covered by the schedule annexed to the petition
here is about five years, and comprehends a great variety
of matters coming strictly within the probate administration
of the estate, and many other matters attended to by the
court's own order, in the interest of the estate.
For all of these services the petitioner is entitled to a
reasonable compensation to be paid out of the estate. He
has already received by order of the court the sum of $7,500
on account. A further sum of $7,500 is, in my judgment, a
fair allowance, and such amount is allowed and ordered to
be paid.
342 Coffey's Probate Decisions, Vol. 2.
Estate of EDWARD FORD, Deceased.
[No. 4234; decided March 20, 1890.]
Account of Administrator — Estoppel to Assert Trust Character of
Property. — An administrator who accounts for money as the property
of the estate of his intestate cannot afterward be heard to say that
it was held by another in trust for certain of the heirs, and that he
collected it under a power of attorney for them.
Trust in Realty — Whether may Rest in Parol. — An express trust in
realty can be created only by a writing containing language appropri-
ate for that purpose.
Louis G. Starke was appointed administrator of the above-
named estate on July 1, 1885. On September 10, 1886, his
letters M^ere revoked, and E. J. Le Breton was appointed ad-
ministrator. The account mentioned in the opinion was
filed by the former administrator on January 4, 1887, and
was settled on February 15, 1887. The power of attorney
referred to in the opinion was executed on February 12,
1885, and the application here decided was made by the
former administrator on behalf of the heirs represented by
him under this power of attorney.
Edward P. Cole, for Louis G. Starke, former administrator,
and for heirs represented by him.
Horace G. Piatt, for E. J. Le Breton, administrator.
COFFEY, J. This is practically a motion of the late ad-
ministrator to disclaim what he has done as an administrator,
and yet hold, under a power of attorney, what money he has
collected by virtue of such administratorship. His final ac-
count, as settled by this court, shows that he has collected
for this estate the following :
Cash from W. H. Hart $800
Cash from Jno. II. Wise 700
Suit of Starke v, McDevitt 350
Total $1,850
This account also shows that this administrator had
charged against this fund the expenses of this administra-
tion, including a large attorney's fee and his own fees.
Estate of Ford. 343
On February 1, 1886, over a year before the filing of this
account, this court made an order authorizing this adminis-
trator to compromise a claim of this estate against the es-
tate of Tully R. Wise, deceased. This order was based
upon a petition of this administrator, wherein he made the
following statement:
"That petitioner claims the property as belonging to the
estate of Edward Ford, or the value thereof; that both said
Ford and said Tully R. Wise are dead, and there is no writ-
ing existing and made between said Ford and said Wise in
reference to said property except the deed of conveyance in
fee made July 22, 1880
"That the estate of Tully R. Wise is ready and willing to
pay your petitioner the sum of $750 in satisfaction of his
claim to the said land. ' '
It will be noticed that this deed, dated July 22, 1880, now
offered in evidence to support the present theory of this
administration, viz., that this property, or its value, does
not belong to this estate, was known to this administrator
when he was claiming that this property, or its value, did
belong to this estate. It was the item of $700, received from
John H. Wise, in the final account, that was obtained for
this estate by the above-mentioned petition.
If the representatives of the estate of Tully R. Wise
claimed this property in trust for Edward Ford's wife and
children, it was not necessary to obtain from this court an
order allowing them to pay this money over to said adminis-
trator, this court had no jurisdiction to make the order, and
the receipt of this administrator for said money would have
been worthless to these representatives. His receipt as at-
torney in fact would not go far enough, as he has power of
attorney from only a part of the children and none from the
wife or son in London.
What proof is there as to the trust? There is no written
declaration of trust.
Maurice Casey, formerly a clerk of Tully R. Wise, testifies
that Mr. Wise told him that Mr. Ford had told him (Wise)
that he wanted to convey to him all his property in trust
for his wife and children. He also testified that he drew a
344 Coffey's Probate Decisions, Vol. 2.
deed and a bill of sale from Ford to Wise, but put in them
nothing as to the trust. The bill of sale is not produced.
The deed is offered in evidence, but was never put on record.
The only other proof of trust is found in two copies of
letters from Tully R. Wise to Edward Ford, son of the de-
ceased, the present executor, in London. This copy of the
letter exempts the "McDevitt judgment" and "one lot"
from the trust (see letter of July 31, 1881). This lot of land
is the only one he really owned (see letter of October 1, 1880).
The final account shows that $350 was obtained from the
McDevitt judgment and $700 from the Wise estate for this
"one lot," or $1,050 that was not included in this trust.
The rest of the estate is the item of $800 obtained from W.
H. Hart. What proof is there that it was included in the
trust? The administrator did not so regard it when he col-
lected it nor when he accounted for it.
So much as to the facts.
There could have been no trust created as to the realty,
as it was not reduced to writing, nor was it a resulting trust
(Civ. Code, 852, 853). The letter of July 31st disclaims
any trust as to the judgment.
If there had been any trust as to the money derived from
Hart, there should have been a new trustee appointed when
Tully R. Wise died (Civ. Code, 2281, 2287). The adminis-
trator had no right to it if it was trust property.
There is no proof before the court establishing this trust.
The deed proves nothing by itself. When read in connection
with the July letter, it means still less. As a legal document
it created no trust. The property thereby conveyed either
vested in Wise or remained in Ford. If the desire was
thereby to create a trust only, it was a failure. The money
by Wise's estate was therefore paid to Ford's estate, to which
it belonged.
The Hart and McDevitt items have been sufficiently dis-
cussed. The application for an order that this administrator
pay over to certain heirs the money collected from this estate
and accounted for as belonging to this estate is denied.
Estate of Graber. 345
Estate of LOUIS GRABER, Deceased.
[No. 14,399; decided February 15, 1895.]
Inventory — Time for Filing. — The statute prescribing the time
within which the inventory and appraisement of an estate of a de-
cedent must be filed is directory merely.
Inventory — Revocation of Letters for Failure to File. — The statu-
tory authority of a court to revoke letters testamentary or of admin-
istration, in case the executor or administrator fails to return an
inventory within a prescribed time, is discretionary.
Inventory — Time for Filing. — An executor should file an inventory
at the earliest moment possible, and if other property subsequently
comes to his knowledge, he should file supplemental inventories from
time to time; it is, however, the application of the law to a particular
state of facts that makes a case, and each case must find its justifi-
cation or exculpation in these peculiar facts.
Executor. — The Removal of an Executor Rectuires a Stronger Case
than removal of an administrator.
Executor — Removal for Failure to File Inventory. — A court will not
remove executors for failure to file an inventory within the precise
time prescribed by statute, when their dereliction arises because of
the negligence of their counsel.
Ben B. Haskell, for petitioner.
Andros & Frank, for executors.
COFFEY, J. This is a petition for the removal of ex-
ecutors under the provisions of sections 1436, 1437, 1443 and
1450 of the Code of Civil Procedure. The first application
is made by Louis Graber, Jr., who alleges that he "is an heir
at law of the said Louis Graber, deceased, and a testamentary
heir and legatee under the will of said decedent." The
ground of his application is that the executors have failed to
file an inventory within the time appointed by sections 1443,
and 1450, and he insists that, such fact appearing, the court
has no discretion in the matter, but must grant his prayer.
The supreme court has held in Phelan v. Smith, 100 Cal. 169,
34 Pac. 667, that the clause in the code under which the
executor or administrator is required to file an inventory and
appraisement within three months after his appointment is
directory. But the counsel for the applicant insist that Phelan
346 Coffey's Probate Decisions, Vol. 2.
V. Smith is entirely foreign to the consideration of the subject
matter here in dispute, for that was a collateral attack, upon
an exception to the introduction in evidence of a probate
record, upon the jrround. inter alia, that the inventory had
not been filed within three months. The court held that the
failure to file the inventory within three months did not
vitiate the proceeding. The rule of statutory construction
for which applicant contends requires the concurrence of
three premises, none of which exists, he claims, in the case
of Phelan v. Smith :
1. A grant of power to a public officer to do a certain act
involving the interests of the public or of a third person ;
2. The existence of the conditions which authorize the exer-
cise of the power granted ;
3. The application by the interested party for the exercise
of the power granted.
It is a matter of no concern to counsel whether the statute
requiring the executor to file an inventory is, as to such
executor, permissive, directory or mandatory, but he feels
confident that under the circumstances of this case the statute
authorizing his removal is mandatory.
Examining the sections in the light of the canons of con-
struction propounded by counsel for executors, according to
the context and evident intent of the legislature, the applicant
argues as follows :
The legislature first provides that an inventory must be
filed within three months. (Section 1443.) It then provides
that if the executor fails to do this within the time prescribed,
or such further time as the court may allow, not exceeding
two months, he may be removed. (Section 1450.) To hold
that the court need not discharge the executor, when applied
to, is to entirely negative the limitation upon the powers of
the court to extend the time for filing the inventory. If this
court should now refuse to discharge these executors and
should permit them to file an inventory, it will be an ex-
tension of time exceeding two months, and a consequent nulli-
fication and total disregard of the statutory limitation. If
the legislature intended to grant the court discretion to ex-
tend the time indefinitely, why was the limitation inserted
at all? "Why not simply say "such further time as the court
Estate of Graber. 347
may allow"? Under the construction of the executors the
very important words of limitation, "not exceeding two
months," are treated as surplusage. For assuredlj^ if the
executors are retained in the face of the application for their
discharge, then as executors they must in the future file an
inventory ; and by their retention the court sanctions and
permits their filing an inventory after the expiration of five
months, which is precisely the same thing as extending the
time.
In this case there is a grant of power to the court to dis-
charge the executors for their failure to file an inventory.
As was said by the supreme court of the United States in
Supervisors v. United States, 4 Wall. 446, 18 L. Ed. 423, this
power is not granted for the benefit of the court, but for the
benefit of parties interested. "It is placed with the de-
positary to meet the demands of right, and to prevent a fail-
ure of justice." This grant of power is obviously for the
benefit of the heirs and creditors, who have a right to demand
that the estate shall be administered in an orderly manner
as provided by law, and that every safeguard provided by
law for the preservation of the estate shall be employed and
maintained.
The argument of counsel for applicant is very able, and it
is due to his earnestness in presenting his points and the
necessary labor involved in their due examination that the
court has devoted so much time (when not otherwise occupied
with the urgent demands of daily attendance in court) to
their study with sympathetic interest, fully aware how far-
reaching the decision may be in the administration of estates.
The portions of the sections of the Code of Civil Procedvire
which petitioner invokes as bearing upon this application
are as follows :
"Section 1436. Whenever a judge of a superior court has
reason to believe, from his own knowledge or from credible
information, that any executor .... has wrongfully neg-
lected the estate, or has long neglected to perform any act
as such executor, he must, by an order entered upon the
minutes of the court, suspend the powers of such executor
until the matter is investigated.
348 Coffey's Probate Decisions, Vol. 2.
"Section 1437. "When such suspension is made notice
thereof must be given to the executor, and he must be cited
to appear and show cause why his letters should not be re-
voked. If he fail to appear in obedience to the citation, or,
if appearing, the court is satisfied that there exists cause for
his removal, his letters must be revoked, and letters of ad-
ministration granted anew, as the case may require."
"Section 1443. Every executor must make and return to
the court, within three months after his appointment, a true
inventory and appraisement of all the estate of the decedent,
including the homestead, if any, which has come to his pos-
session or knowledge."
"Section 1450. If an executor neglects or refuses to re-
turn the inventory within the time prescribed or within such
further time, not exceeding two months, which the court or
judge shall for reasonable cause allow, the court may upon
notice revoke the letters testamentary, and the executor is
liable on his bond for any injury to the estate, or any person
interested therein, arising from such failure."
In the case of Mc Willie v. Van Vacter it was held that the
purpose of requiring an inventory and appraisement is to
secure regularity and method in the management of the de-
cedent's estates, to secure fidelity on the part of those in-
trusted with their administration, and to guard the rights
of all parties by furnishing means of accurate information
as to the value of any estate in the course of administration :
McWillie v. Van Vacter, 35 Miss. 428, 72 Am. Dec. 129.
One of the purposes of an inventory is to make of record
a reliable schedule of the property claimed by the executor
for the estate. The purposes of this record are manifold, and
among others: 1. To charge the executor to safely keep and
account for all such property as he by his inventory admits
comes to his possession as such executor: Code Civ. Proc,
sec. 1613. And 2. If, intentionally or through ignorance, the
executor fail to include in his inventory property belonging
to the estate, the omission may at once be called to the at-
tention of the executor, and rectified at the instance of the
persons interested.
The wisdom of requiring an inventory at an early period is
plain. Until it is filed no one can know whether the executor
Estate of Graber. 349
claims for the estate property which is well known to be a
part of it. To illustrate : Rents of land belonging to the
estate might be wasted and lost because the executor, not
knowing the lands belonging to the estate, fails to demand
them; and the heirs, believing the executor to be regularly-
collecting the rents, do not inform him of his error.
Were no inventory required it might frequently happen
that dishonest executors would make no account of property
belonging to the estate, and on account of lapse of time,
death of witnesses and destruction of evidence, it would be
impossible to establish the title of the estate to the property.
As in the case at bar, argues the applicant, the executor re-
ceives in possession money left by the decedent; at present
there are witnesses and evidence to establish his receipt of this
money as such executor ; but if he neglect filing his inventory
until these witnesses die, he may then with impunity deny
that he had ever received any money belonging to the estate.
The statute says that in all cases this inventory must be filed
within five months, and deprives the court of power to ex-
tend this time. (Section 1450.) If the executor had a right
to neglect his statutory duty to file an inventory for one day
after the expiration of the five months, he may neglect it
for two days, a week, a month, a year, a decade — he may
neglect it indefinitely. He need file no inventorj^ at all ; and
(if he be a young man) he can wait until all of the heirs and
creditors are dead, and all recollection of the existence of his
testator is buried in the oblivion of dusty archives, and then
make away with the estate.
It seems obvious that a speedy listing of the assets of the
estate will tend to insure honesty in the administration, and
to guard against errors and omissions. All the statute re-
quires is the listing of such properties as have come to the
knowledge or possession of the executor. It requires that
when an executor takes possession of the property of a dead
man as trustee for the heirs and creditors, that he shall file
for record a written acknowledgment of the fact. No honest
man can do less; no conscientious man would shirk the per-
formance of so simple and (independent of the statute) plain
a duty. If an executor violate his oath by refusing to return
an inventory, there is no escape from the conclusion that his
350 Coffey's Probate Decisions, Vol. 2.
motives are base and dishonorable, and that therefore he
should be removed. If an executor neglect to perform his
duty, it is not so clear by what motive he is actuated, but it
is plain that he is shiftless and unfit to be intrusted with
the property interests of others, and therefore he should be
removed. The executor is trustee for the creditors and heirs,
and, if he intends conscientiously to discharge his trust as
an honest and competent business man, he can have no valid
reason for neglecting to do that which in equity and by the
plain provisions of the statute he is required to do.
In conformity with the spirit of the statute, an executor
should file an inventory at the earliest moment possible ; and
if other property subsequently comes to his notice, he should
file supplemental inventories from time to time. The time
within which this must be done has been determined by the
legislature. The language in section 1450 — "such further
time, not exceeding two months, which the court or judge
shall for reasonable cause allow" — is obviously intended to
definitely fiLX the time within which the inventory must in all
cases be returned, and as a limitation upon the power of the
court to extend the time.
In this case, it is insisted by counsel for applicant, the
executors plainly come within the provision of sections 1436,
1437, Code of Civil Procedure, in having "long neglected to
perform any act as such executors"; and it is submitted
that the court having made and entered an order suspending
the powers of the executors, and they being cited to show
cause, and the verity of the petition not being impugned, the
court "must" revoke their letters under section 1437.
Independent of sections 1436, 1437, however, it is claimed
that the provisions of sections 1443 and 1450 make their re-
moval imperative. The use of the word "may" in section
1450 is not permissive, but mandatory. Sedgwick, in his work
on Statutory Construction, says: "This subject has been re-
cently much considered in England on the true construction
of the act called the County Courts Extension Act, which
declares that in certain cases a judge at chambers may, by
rule or order, direct that the plaintiff shall recover his costs.
The word 'may' was here held not to be discretionary, but
to mean 'shall'; and the court said that when a statute con-
Estate of Graber. 351
fers an authority to do a judicial act in a certain case it is
imperative on those so authorized to exercise the authority
when the case arises, and its exercise is duly applied for by
a party interested and having the right to make the applica-
tion ; that the word ' may ' is not used to give a discretion,
but to confer a power upon the court and judges, and the
exercise of such power depends not upon the discretion of
the court or judge, but upon the proof of the particular case
out of which such power arises ' ' : Sedgwick on Statutory
Construction, 376.
In a well-considered case in New York the rule was laid
down as follows: "Where a public body or officer has been
clothed by the statute with power to do an act which con-
cerns the public interest or the rights of third persons, the
execution of the power may be insisted on as a duty, though
the phraseology of the statute be permissive merely and not
peremptory": Mayor etc. of New York v. Furze, 3 Hill, 612.
This rule is cited and approved in People v. Otsego Co.,
in which it is held that the words ''authorized and empow-
ered," in a statute conferring power on boards of supervisors
to provide for refunding taxes improperly paid, are manda-
tory : People V. Otsego Co., 51 N. Y. 406.
In the Estate of Ballentine it was held that the words
"may set apart," in section 121 of the probate act, providing
that the probate judge may set apart a homestead, are
mandatory and leave no discretion with the judge, and that
the word "may" is to be construed as "shall": Estate of
Ballentine, 45 Cal. 699.
And in Hayes v. County of Los Angeles it is held that the
word "may" in section 3804 of the Political Code, prior to
1889, providing that "any taxes, percentum and costs er-
roneously or illegally collected may, by order of the board of
supervisors, be refunded by the county treasurer," is to be
construed as "shall": Hayes v. Los Angeles, 99 Cal. 74, 33
Pac. 766.
Notwithstanding this array of authorities, I am inclined
to think that the supreme court has in Phelan v. Smith
indicated the rule to be applied in such a case as the one at
bar, and this being the latest expression of that tribunal, it
is entitled to the respect and obedience of this court.
352 Coffey's Probate Decisions, Vol. 2.
I have given the argument of the learned counsel for ap-
plicant its full force, as far as the sentiments expressed are
concerned ; they meet my entire concurrence and are co-
incident with those to which I have given utterance for years,
with iteration and reiteration tiresome to members of the bar
and others compelled by circumstances to listen to the lec-
tures of the court. Not a day passes, it may be said, without
a repetition of these admonitions to administrators and ex-
ecutors and appraisers. But the conclusion of the counsel
is one that I do not see my way clear to adopt under the
latest construction of the supreme court. I am reminded
that when this court, in the conviction that it was doing its
duty, removed an administrator upon Avhat seemed to it
supersufficient premises, the appellate court gently admon-
ished the probate judge that administrators have rights no
less than courts have duties: In re Welch, 86 Cal. 183, 24
Pac. 943.
It would appear that the case of an executor is even
stronger, for, as was said by Thayer, chief justice, in his dis-
senting opinion (Holladay's Estate, 18 Or. 168, 22 Pac. 752) :
"The removal of an executor should, upon general principles,
require a stronger case than the removal of an administrator.
The latter is appointed by the court, while the former is
named in the will of the testator as the particular person
above all others whom he desires to have to settle up his
affairs, and his removal pro tanto revokes a will. A probate
court is not justified in thwarting the intention of a testator
in such a case, unless there is a legal necessity therefor."
This idea seems applicable to the case at bar for reasons that
may be gleaned from the record.
At all events, the question is. Shall these executors be
removed from their trust for failure to file in due time an
inventory and appraisement? If the statute be mandatory,
there is no other judgment to pronounce; but if it be direc-
tory, as the supreme court has declared, the court should
consider what exculpatory matter is presented. Many cases
of this kind are on record; the court has too frequent
occasion to comment thereon and to incur the ire of attorneys
whose wrath is kindled by the censure of the court upon this
item of negligence; but each case stands upon its own foot-
Estate of Graber. 353
ing. It is the application of the law to a particular state
of facts that maizes a case; and each case must find its
justification or exculpation in its peculiar facts. And in
this case the court is called upon to punish the executors
for an act which was the result of the confessed neglect
of their counsel, involving no criminal intent or design on
the executors' part. But, it is said, they cannot shield them-
selves behind their counsel. This is true, as a general proposi-
tion; but laymen who are usually selected as executors are
allowed counsel to advise them and to discharge duties and
to attend to details manifestly not within the common capac-
ity of unprofessional men (Code Civ. Proc, sec. 1616), and
why, then, since the discretion of the court is to be exercised,
should we hang the layman for the laches of the lawyer?
For it is a hanging matter, since the honest executor may
for such an omission be deprived of his official life in an
ignominious manner, his name stigmatized, his credit im-
paired or destroyed, his reputation ruined, because through
some lapse of his attorney he has not, within the precise
period, obeyed the direction of the statute. Why not sus-
pend or disbar the lawyer, for it is primarily his offense?
Harsh as such a suggestion may seem, it would be no greater
hardship in some cases than the removal of an executor for
dereliction of which only by a violent presumption of the
law he may be held intelligently guilty.
I am of opinion that in the circumstances of this case the
court would not be warranted in exercising its discretion by
granting the application to remove the executors and revoke
their letters testamentary.
Application denied.
An Executor or Administrator Who Neglects or Refuses to Return
an Inventory within the time prescribed therefor is liable to have his
letters revoked, and he becomes answerable on his bond for any injury
to the estate occasioned by his dereliction of duty. The provision of
the statutes on this point, however, is directory merely, and leaves
the, question of revocation within the discretion of the court; Phelan
V. Smith, 100 Cal. 158, 34 Pac. 667; Estate of Graber, 111 Cal. 432,
44 Pac. 165; Deck's Estate v. Gherke, 6 Cal. 666; Estate of Holladay,
18 Or. 168, 22 Pac. 750; Clancy v. McElroy, 30 Wash. 567, 70 Pac. 1095^
Prob. Dec, Vol. II — 23
354 Coffey's Probate Decisions, Vol. 2.
Estate of WILLIAM IIESSLER, Deceased.
[No. 15,219; decided January 19, 1895.]
Homestead — Setting Apart from Community Property. — The re-
quirement of Code of Civil Procedure, section 14G5, that a homestead
be set apart for the use of the surviving husband or wife and the
minor children out of the common property, is mandatory, and if there
is suitable property in the estate for the purpose it must be set aside.
Homestead — Setting Apart from Community Property Absolutely. —
If a homestead is selected from the common property, it cannot be
set apart for a limited period only. It is of no consequence that the
widow is old and will not require the homestead for many years, or
that she will receive three-fourths of the estate upon distribution. It
is plainly the duty of the court, under the statute, to award a home-
stead to her, and it is then taken out of the estate and becomes her
property, with absolute power of disposition.
Homestead. — There is No Limitation as to the Value of property
set aside as a probate homestead.
Homestead. — Where there are No Children, the widow constitutes
the family of the decedent.
Family Allowance. — In Determining What is a Reasonable Allow-
ance for the maintenance of the family of a decedent, regard should
be had to the condition of the estate and the mode in which the
family had lived during the lifetime of the deceased.
Family Allowance. — The Right to an Allowance Commences from
the Death of the decedent.
Funeral Expenses — Extent of Expenditures Therefor. — While suit-
able respect should be shown to the deceased in the matter of a
burial place and monument, and while the court in its discretion can
make allowance out of the estate therefor, yet large expenditures in
this way represent the sentiments of the persons that incur them,
rather than the necessary expenditure of trust funds, and courts
should be cautious in allowing expenditures of this character.
Funeral Expenses. — The Cost of a Monument is a part of the funeral
expenses, and a reasonable amount for this purpose may be allowed.
William Ilessler died on September 22, 1894, and on Oc-
tober 18, 1894, Catherine Hessler, his widow, was appointed
administratrix of his estate. An inventory was filed on Oc-
tober 17, 1894, and on November 20, 1894, the widow filed
the petitions mentioned in the opinion ; subsequently the
absent heirs filed objections to the granting of these peti-
tions.
Estate of Hessler. 355
Frank J. Sullivan, for petitioner.
W. H. Barrows, for absent heirs.
COFFEY, J. The widow of Wm. Hessler, deceased, pre-
sents three petitions in this matter:
First, that certain land described in her petition, with the
dwelling-house thereon and appurtenances, be set apart
to her as a homestead.
Second, that an allowance of $500 per month be made to
her out of said estate for her support pending the adminis-
tration.
Third, that she be authorized to erect a monument at a
cost to the estate of $5,000, and be reimbursed for money
already expended by her in the purchase of a burial lot for
said deceased in the sum of $280 more.
The heirs of said deceased other than said widow have inter-
posed objections to the granting of each and all of these peti-
tions.
At the outset it is conceded that each of these matters rests
largely in the discretion of the court, but in the exercise
of that discretion due consideration should be given to the
following facts and circumstances :
1. That the property sought to be set apart as a homestead
is worth at least $8,000, and that in addition thereto the widow
will receive all of the household furniture in said house,
which is appraised at $250 ;
2. That the value of the entire estate as shown by the in-
ventory is $76,953.16, and the entire income thereof is about
$300 per month;
3. That the widow is advanced in years and has no one
dependent upon her, there being no children;
4. That under the law the widow will receive three-fourths
of the estate upon distribution.
This application for a homestead is made under section
1465 of the Code of Civil Procedure, which provides that the
court must select and set apart a homestead out of the com-
mon property of the decedent.
In the estate of Ballentine, 45 Cal. 696 (which has been
repeatedly affirmed), it is definitely settled that this provi-
356 Coffey's Probate Decisions, Vol. 2.
sion is mandator}'. Therefore, if there is suitable property
in the estate for the purpose it must be set aside.
In Estate of Walkerly, 81 Cal. 583, 22 Pac. 888, the court
uses this language: "It is insisted by the appellants that the
condition of the estate was such that, considering the liberal
provision made for the wife and child of the deceased by his
will, so valuable a homestead should not have been allowed.
But this was a matter within the discretion of the court
below, and, unless it appears that such discretion has been
abused, we think this court should not interfere."
In that case, however, the estate was worth more than
seven times as much as in this, and the homestead sought
was worth only twice as much, and there was an infant child
to be supported, beside the widow.
The petitioner here has already reached that time of life
when the homestead cannot be much longer required by her.
If it were within the power of the court to set apart this
property to her for her life, there would not be so much ob-
jection. But under the construction put upon section 1468
of the Code of Civil Procedure in the case of Phelan v. Smith,
100 Cal. 170, 34 Pac. 667, the homestead cannot be limited
as to the time of its duration. And under the decision in
the Walkerly case it is likewise settled that there is no arbi-
trary limitation as to value.
It is easy to conceive of a case where the court would be
practically compelled, in the exercise of a sound discretion,
to decline to set apart a homestead, even though there were
a dwelling-house among the common property of the dece-
dent. As, for instance, if the estate were insolvent, and the
whole or nearly all of the estate consisted of the property
sought to be set aside, particularly where that property is
of great value ; thus, it would be manifestly wrong to set aside
a homestead worth $20,000 and leave nothing whatever for
creditors where the amount of indebtedness was large.
It is true that the case at bar is not of the character above
suggested, but in this case there is a large number of relatives
who are heirs to only one-fourth of the estate, and their coun-
sel argues that the three-fourths that remains to the peti-
tioner constitutes more than she can possibly require during
her lifetime without setting apart to her in addition this
Estate of Hessler. 357
valuable property which she can use only for a short time ;
and he appeals to the court to exercise that discretion which
is vested in it, in such a case as that presented here, and
prevent a manifest injustice by deciding that in this case there
is no suitable property in the estate out of which to select a
homestead.
The three petitions referred to are presented together,
and the counsel for the foreign heirs asks that the court
will consider them at the same time, and, if the prayer for a
homestead is granted under the circumstances, the matters
above urged should have some influence in fixing the family
allowance at as low an amount as will suffice to satisfy the
requirements of law and the absolute necessities of the case:
See Estate of Lux, 100 Cal. 593, 35 Pac. 341. In that case
the court say: "We are not to be understood as holding
that the value of the property set apart for the use of the
family under section 1465, Code of Civil Procedure, or the in-
come of the property, is not to be considered in determin-
ing what is a reasonable allowance."
In any event regard should be had to the condition of the
estate and the mode in which the family had lived during
the lifetime of the deceased: Estate of Lux, 100 Cal. 593,
35 Pac. 341 ; Estate of Stevens, 83 Cal. 325, 17 Am. St. Rep.
252, 23 Pac. 379.
Estate of Walkerly, 77 Cal. 642, 20 Pac. 150, where in an
estate of nearly $800,000 the wife and child were allowed
only $420, and even this amount was objected to as excessive.
If the petition for a homestead is denied, no doubt the court
could permit the petitioner to occupy the property in ques-
tion during administration free of rent, and could allow her
a much larger family allowance than it otherwise would;"
but if the homestead is set apart as prayed for, then counsel
submits that the family allowance should be not more than
one-half of the amount asked for.
The gross income of the estate being only about $300 per
month, taxes, repairs and other expenses will consume a por-
tion even of this amount, and the family allowance should cer-
tainly not encroach upon the main body of the estate.
With reference to the application for leave to erect a monu-
ment and to be reimbursed for the expensive burial lot pur-
358 Coffey's Probate Decisions, Vol. 2.
chased, all that has been said in relation to the condition
of the estate and the other allowances sought by the widow
is equally applicable.
While suitable respect should be shown to the deceased
in the matter of a burial place and monument, and while the
court in its discretion can make allowance out of the estate
therefor, as decided in Van Emon v. Superior Court, 76 Cal.
589, 9 Am. St. Rep. 258, 18 Pac. 877; Estate of Weringer,
100 Cal. 345, 34 Pac. 825, yet large expenditures in this way
represent the sentiment of the persons that incur them rather
than the necessary expenditure of trust funds, and courts
should be cautious in allowing expenditures of this char-
acter.
The widow very naturally and properly desires to see a
costly monument erected in this case, but it must be borne
in mind that the sentiment of other heirs may not be as strong
in that direction, and it is not for the petitioner to donate
the property of the estate intrusted to her hands for the
gratification of her own feelings.
In all of the circumstances no more of the funds of the
estate should be devoted to this purpose than such amount
as is absolutely necessary to properly mark the grave of de-
ceased, and all other and further sums that may be required
to erect such a monument as the petitioner may desire should
be contributed from her private purse, which is ample for the
purpose.
The estate was appraised at $76,953.16. It may be as-
sumed that the real estate was more valuable before the panic
of last year, and will be again more valuable. Of this total,
there was $23,153.16 of money, which is drawing interest at
the rate of about five per cent per annum, say $95 monthly.
The rents of the property are $268 monthly ; total return, $373.
There are no debts of any -kind. The property is community
property. There are no children and no near kindred. The
family of the deceased is the widow, who has been married
over forty years.
A. — As to the homestead : It may be assumed that the home-
stead property has been, and will be, worth more than $5,000,
although at present it is not. The value, however, in this
instance is of no consequence. It is the duty of the court to
Estate of Hessler. 359
set it aside to the widow. She is the family of the dece-
dent: Code Civ. Proc., sees. 1465, 1468; Estate of Ballen-
tine, 45 Cal. 696; Mawson v. Mawson, 50 Cal. 541; Estate
MeCauley, 50 Cal. 545; Lord v. Lord, 65 Cal. 84, 3 Pac.
96; Kearny v. Kearny, 72 Cal. 591, 15 Pac. 769; In re
Noah, 73 Cal. 591, 2 Am. St. Rep. 834, 15 Pac. 290 ; McKinne
V. Schaeffer, 74 Cal. 614, 16 Pac. 509; Burdick's Estate, 76
Cal. 639, 18 Pac. 805 ; Walkerly Estate, 77 Cal. 644, 20 Pac.
150 ; In re Armstrong, 80 Cal. 71, 22 Pac. 79 ; In re Walkerly,
81 Cal. 579, 22 Pac. 888 ; In re Schmidt, 94 Cal. 336, 29 Pac.
714 ; In re Smith, 99 Cal. 451, 34 Pac. 77 ; Phelan v. Smith,
100 Cal. 170, 34 Pac. 667; Estate of Garrity, 108 Cal. 463,
38 Pac. 628, 41 Pac. 485.
In Re Armstrong it was settled that the widow without
children was entitled to the homestead. In the Walkerly
Estate it was held that there was no limitation as to value.
This point was most conclusively settled in Re Smith, a
Santa Clara case, where the matter was forcibly presented.
In that case the rents were between .$400 and $500 per month,
and the value about $75,000. In these respects it was very
similar to the one at bar.
It is of no consequence, as alleged by counsel, that the
petitioner is old and will not require the homestead for
many years. It is plainly the duty of the court to award
the same to her. It then is taken out of the estate and be-
comes her property, with full power to mortgage or sell
or devise as she sees fit: McKinne v. Schaeffer, 74 Cal. 614,
16 Pac. 509.
Even if the petitioner were worth millions it would be
the duty of the court to set aside the homestead. It is a
statutory right, and there is no way of evading the plain
terms of the law.
Not even the insolvency of the estate would bar the peti-
tioner from the homestead, for the reason that it was the
intention of the law to protect the family, which in nine
out of every ten cases needs such protection badly : In re Bow-
man, 69 Cal. 244, 10 Pac. 412. Hence it is of no conse-
quence whether the widow obtains all or three-fourths of the
estate. This should not cut any figure. Moreover, we have
her sworn testimony that she has no property of her own
360 Coffey's Probate Decisions, Vol. 2.
and is dependent upon the estate for support. She has been
the partner of decedent for about forty years. The property
in the estate was gradually accumulated by both. The rela-
tives of decedent did not help to make it. Hence they should
not be heard to protest successfully against this petition.
B. — Family allowance: The reason given for the homestead
will also apply to the family allowance. The very case cited
by the attorney for the absent heirs (Lux's Estate, 100 Cal.
593, 35 Pac. 341), lays down the rule that the condition of
the estate and the mode of living during the lifetime of the
spouses should control. Mrs. Hessler testified that the ex-
penses of the family in her husband's lifetime amounted to
$550 or thereabouts every month. She gave a list of all arti-
cles which were absolutely necessary for her support and main-
tenance, and her position in society. The representative of the
absent heirs says that $250 will suffice, but that if the peti-
tion for a homestead be denied, the court can grant a much
larger allowance and be more liberal. But such is not the
proper construction to be placed upon the law. In such a
ease as the one at bar the court should grant a liberal al-
lowance, even if in that way it anticipated the widow's share.
In volume 1, Woerner's American Law of Administration,
page 165, section 79, we read: "If the estate is large, ap-
parently solvent, and the allowance merely an anticipation of
the widow's distributive share, a more liberal allowance will
be justified than where it is small or insolvent ; and what
would be a reasonable allowance for one accustomed to priva-
tion and labor might be very unreasonable for one raised in
affluence." Even if the widow had a separate estate of her
own (which she has not), she would be entitled to a family
allowance: Lux's Estate, 100 Cal. 593. 35 Pac. 341; Stevens'
E.state, 83 Cal. 325, 17 Am. St. Rep. 252, 23 Pac. 379;
Walkerly's Estate, 77 Cal. 642, 20 Pac. 150; Sehouler on
Executors, sec. 449; Sawyer v. Sawyer, 28 Vt. 245; Strawn
V. Strawn, 53 111. 263; Thompson v. Thompson, 51 Ala. 493.
In this state, no matter what the amount of the allowance
may be, it is undeniable that the right to an allowance com-
mences from the death of the decedent ; the only question for
the court is the quantum.
Estate of Hessler. 361
C. — Monument : The application of the widow states that
$5,000 Avould be a suitable sum for a monument to be erected
over the grave of her deceased husband. Objection is made
that the amount is too large, and that the court should only
allow a certain sum to decently mark the grave of deceased,
and that any further expenditure should be made by peti-
tioner herself. In reply to this objection petitioner's coun-
sel says : It is conceded that if this estate were insolvent no
such sum should be allowed. In the case at bar we have a
comparatively rich estate, and no children, and no near kin-
dred, and the widow naturally desires to erect a handsome
monument to decedent's memory.' Why should she not be
allowed to do so ? Who will be injured ? No one. There are
no children. The widow alone represents the family. She
assisted in making the estate as valuable as it is. Certainly
it is only just that she should be allowed to make a liberal
expenditure in this matter.
It was held in McGlinsey's Appeal, 14 Serg. & R. 64, that
where one leaves a good estate and no children or near kin-
dred the cost of a handsome monument will be allowed.
In Pistorius' Appeal, 53 Mich. 350, 19 N. W. 31, it is
said: ''A delicate regard for all those whose pecuniary in-
terests are likely to be diminished by the funeral charges
should influence the legal representative ; but at the same time,
if the estate be solvent, he need not permit penurious and
unfeeling kindred to rob the deceased of the last decent
tributes to his memory. ' '
In Bainbridge's Appeal, 97 Pa. 482, the court refused to
control the discretion of an executor in using the entire resi-
due of the estate, after paying legacies, in erecting a monu-
ment. In that case, however, the will provided for the ex-
penditure.
It has been held in some states that the widow might of
her own volition render the estate liable for this expensive
monument: Ferrin v. Myrick, 41 N. Y. 315; Porter's Estate,
77 Pa. 43. But in this case the widow does not desire to do
this. Hence, she has made due application to the court and
given notice to all parties interested.
The expense of the monument is clearly a charge for funer-
al expenses, and a reasonable amount for this purpose should
362 Coffey's Probate Decisions, Vol. 2.
be allowed : Van Emon v. Superior Court, 76 Cal. 589, 9 Am.
St. Rep. 258, 18 Pac. 877 ; Estate of Weringer, 100 Cal. 345,
34 Pac. 825; 2 Woerner's American Law of Administration,
see. 358, and authorities in notes 6, 7 and 9.
Counsel for the foreign heirs does not contend that the
cost of a monument is not chargeable to the estate. The only
question with him is the amount. In the matter of monu-
ments, as in the homestead and family allowance, courts have
been liberal in all cases where estate has been solvent, and
where the interests of children have not been lessened.
The court is of opinion that the applications should be
granted; that the widow is entitled to a homestead and to
an allowance of $300 per month ; and that the sum of $2,500
may be appropriated for the purpose of erecting a monument
to the memory of deceased.
So ordered.
Reasonable Expenses for the Funeral of a deceased and the erec-
tion of a monument at his grave are proper charges against his estate:
Estate of Koppikus, 1 Cal. App. 84, 81 Pac. 732; O'Donnell v. Slack,
123 Cal. 285, 55 Pac. 906, 43 L. R. A. 388; Estate of Smith, 25 Wash.
539, 66 Pac. 93.
The Law Governing Prohate Homesteads and Family Allowances
will be found discussed in 1 Ross on Probate Law and Practice, 457-
518.
Estate of JOANNA TESSIER, Deceased.
[No. 3092; decided October 22, 1895.]
Trust, When Created by Will. — Whore a testatrix directs that there
be paid monthly to her daughter a specified sum, and to her two grand-
daughters a like sum, share and share alike, and in case of the death
of either of the granddaughters, without issue, the survivor to take
the whole of the last named sum; and further provides that on the
death of her daugliter her estate shall go to her two grandchildren,
share and share alike, or to the survivor of the daughter in case of
the death of either of the granddaughters; and an executor is ap-
pointed by the will, but he is not named as trustee, a trust is created
by the will which appoints an executor, but does not name him trustee.
Estate of Tessiek. 363
Trust.— It is not Necessary to Use the Word "Trust" or "Trustee,"
or any particular form of words, in creating a trust, so long as the
intention of the testator is expressed.
Trust. — A Person may Declare a Trust Either Directly or Indirectly
— the former, by creating a trust eo nomine in the forms and terms
of a trust; the latter, without affecting to create a trust in words, by
evincing an intention which the court will effectuate through the
medium of an implied trust.
Trust. — An Executor may he Both Executor and Trustee. If not
named expressly a trustee, the court may determine from the whole
will whether he is not to act as trustee.
Trust. — When the Income of Property is Given to One for Life,
and, at his death, the property is given over to another, and no trustee
is named in the will, the executor is the trustee to hold the property
during the lifetime of the legatee for life.
Trust — A Trust will not be Permitted to Fail for Want of a Trus-
tee. — The probate court will determine whether a valid trust has
been created, and may distribute the estate to a trustee, he being
entitled to the possession and control of the same.
Trust. — When a Trust is Created, a Legal Estate Suflicient for the
execution of the trust will, if possible, be implied.
Administration — Duty to Close Speedily. — It is the duty of the
court and executor to close an administration speedily, and as soon
as the debts and expenses of administration are paid and there are
persons entitled to the possession of the estate.
Executors. — Commissions of Executors and Administrators cannot
be Apportioned until the close of administration, and an executor
must close his account as executor before being charged as trustee.
Lowell J. Hardy, Jr., petitioner, in pro. per.
COFFEY, J. The facts of this application, as shown by-
petition and proof are that Joanna Tessier died testate on
or about the twelfth day of January, 188-i, in said city and
county of San Francisco, leaving real and personal property
therein, and being at the time of her death a resident thereof ;
that said deceased 'left a will, which was duly admitted to
probate by said court on the eleventh day of February, A. D.
1884, and that thereafter, the executor named having re-
nounced, letters of administration with said will annexed
upon said estate were duly issued to L. F. George, who acted
as such administrator until his death, to wit, on or about
the first day or September, A. D. 1888 ; that upon the written
request of Mrs. Delia A. Bell, the only issue of said decedent,
364 Coffey's Probate Decisions, Vol. 2.
and due proceedings in that behalf, letters of administration
with said will annexed upon said estate were duly issued
by said court to the petitioner, L. J. Hardy, Jr., on the fifth
day of September, A. D. 1888, and that he is still such ad-
ministrator, and that said estate is not distributed ; that on the
twelfth day of February, A. D. 1884, due notice to the cred-
itors of said decedent to present their claims against dece-
dent, as required by law and the order of said court, was
published ; that on the twenty-eighth day of February, A. D.
1884, an inventory and appraisement of said estate was filed
as required by law ; that more than seven years have elapsed
since the appointment of the petitioner as such administrator
and the publication of said notice to creditors; that on the
twentj^-seventh day of August, A. D. 1895, the petitioner filed
an account as such administrator, of his administration of said
estate, up to the first day of August, A. D. 1895, showing
that there was in his hands as such administrator in cash
the sum of $3,438.99 and certain real property described in
the petitions; that said account was allowed and settled as
filed; that all the debts of said decedent and of said estate,
and all the expenses of the administration thereof thus far
incurred, and all taxes that are due from said estate, have
been paid and discharged, except the fees and commissions
of the administrator; that the petitioner filed a supplemental
report of his administration since August 1, 1895, to the
tAventy-third day of September, A. D. 1895; that said estate
is now in a condition to be distributed to the petitioner as a
trustee thereof under and pursuant to the provisions of said
will ; that it is provided in said will that the income of said
estate shall be paid to Mrs. Delia A. Bell and Mabel F. White,
now Mabel F. Sumner — Merced F. White, mentioned in said
will as a devisee, having died when about seven years of
age — during their joint lives; that said devisees Delia A,
Bell and Mabel F. Sumner are alive, and that said estate
cannot be distributed to them or either of them until the
death of one of them; that by the provisions of said will a
trust has been created, and said estate has been devised in
trust, and the administrator is in legal effect named as a
trustee in said will to carry out the terms thereof; that the
residue of said estate now remaining in the hands of the
Estate of Tessier, 365
petitioner, as administrator, consists of the property described
in the petition; that said estate was the separate property of
said decedent, who died unmarried.
The prayer of the petitioner is that the residue of said
estate, after payment of his fees and commissions, be dis-
tributed to him as a trustee under said will ; that the admin-
istration of said estate be closed, and he be discharged from
his trust as such administrator.
The petition is concurred in by the surviving beneficiaries
named in the will.
The will is as follows:
"I, Joanna Tessier, of the City and County of San Fran-
cisco, State of California, being of sound and disposing mind
and memory, do make, publish and declare this my last will
and testament.
"First. I will and direct that all my just debts which may
exist against me at my decease may be settled.
"Second. I will and direct that my executor hereinafter
named enter into the possession of all my real estate and
receive and receipt for all the rents, issues and profits there-
of, and from the proceeds thereof pay all taxes, insurance,
assessments and costs of repairs on said premises, and out
of the residue of said rents and profits pay monthly to the
Hibernia Bank, to be applied in liquidation of the mortgage
held on my property, the monthly interest and one hundred
dollars principal.
"Third. After the payments provided for as aforesaid,
I direct that the sum of fifty dollars be paid monthly to my
daughter, Delia A. Bell ; and fifty dollars to my grandchildren,
Merced Funda White and Mabel Florence White, to be di-
vided between them share and share alike, and in case of the
death of either without issue the survivor to take the whole
thereof.
"If at the end of every succeeding twelve months there
shall remain any money so received unexpended, the same
shall be divided into two equal parts, the one part to be paid
to said Delia A. Bell, the other to said grandchildren equally.
Said payments to said Delia A. Bell and to said grandchildren
are to be continued during their natural lives. On the death
366 Coffey's Probate Decisions, Vol. 2.
of either of said grandchildren without issue the survivor
to take her share.
"On the death of Delia A. Bell I give and bequeath all
my real and personal property to my said grandchildren,
share and share alike, or to the survivor of said Delia A.
Bell in case of the death of either of said children.
"Fourth. In ease any of the buildings situated and being
upon any of the lots of land owned by me shall be destroyed
b.y fire, I direct that the land be sold and the proceeds of said
sale, together with the money realized from the policy of in-
surance, be used in the purchase of other productive property.
"Fifth. I give and bequeath all my household property,
consisting of furniture, bedding, etc., etc., to my said grand-
children share and share alike.
"Sixth. In ease any money should be realized out of the
foreclosure of the mortgage held by me on the property
formerly owned by me situated on the easterly side of
Waverly Place, I direct that the same be re-invested in the
purchase of productive real estate in this city; and if said
property is sold on a decree foreclosing said mortgage I au-
thorize my said executor to purchase the same for the benefit
of my estate, or, in case of bidders at the sale, to allow said
property to be purchased by others as in his discretion may
seem for the best interests of my estate.
"All rents received from the property at any time in the
hands of my said executors is to be divided as provided
aforesaid and in pursuance of and accordance with the provi-
sions aforesaid.
"Seventh. I hereby nominate and appoint George W.
Gibbs executor of this my last will and testament. I hereby
revoke all former wills."
Duly signed and witnessed July 19, 1882.
The administrator of said estate submits the proposition
for a distribution to himself as a trustee of the residue of
said estate.
A trust has been created by the will of said decedent;
whether it is an express or implied trust matters not. The
court thinks it is an express trust under section 857 of the
Civil Code, because the will has created a trust for all the
Estate of Tessier. 867
purposes mentioned in said section, and being in writing,
complies in that respect with section 852, Civil Code.
It is not necessary to use the word ''trust" or "trustee,"
or any particular form of words, in creating a trust, so long
as the intention of the testator is expressed : Perry on Trusts,
par. 82, 112; Luco v. De Toro, 91 Cal. 405, 27 Pac. 1082.
A person may declare a trust either directly or indirectly ;
the former by creating a trust eo nomine, in the forms and
terms of a trust ; the latter wdthout affecting to create a
trust in words, by evincing an intention, which the court will
effectuate through the medium of an implied trust: Lewin's
Law of Trusts, p. 108.
An executor may be both executor and trustee : Lewin 's
Law of Trusts, p. 204.
If not named expressly a trustee, the court may determine
from the whole will whether he is not to act as trustee :
Perry on Trusts, par. 262 ; Toronto Trust Co. v. Chicago R.
R. Co., 7 Am. Prob. Rep. 294.
When the income of property is given to one for life,
and at his death the property is given over to another, and
no trustee is named in the will, the executor is the trustee
to hold the property during the life of the legatee for life :
Perry on Trusts, par. 262.
By the will under consideration the executor is directed
to enter into the possession of all real estate, receive all rents,
etc., and out of the proceeds thereof pay all taxes, etc., and
out of the residue of income pay Hibernia Bank certain sums,
also to pay to Delia A. Bell and the two granddaughters cer-
tain sums of money during their natural lives.
By said will all the estate is bequeathed and given to said
grandchildren on the death of said Delia A. Bell, but not
before such death.
The executor is also directed and empowered to invest in
the purchase of productive real estate any money to be de-
rived from foreclosure of a certain mortgage ; or to purchase
the property if sold under a foreclosure.
A trust has been without doubt created.
The intention of the decedent can be executed only through
a trustee, otherwise the administration of said estate could
not be closed until the death of Delia A. Bell; or, if the
368 Coffey's Probate Decisions, Vol. 2.
testator had postponed the final distribution during lives in
beinsf, including the life of the administrator (Civ. Code^
715), until after the death of the administrator; during which
time no final commissions or fees could be allowed to the ad-
ministrator.
Commissions cannot be apportioned until close of adminis-
tration of estate : Estate of Barton, 55 Cal. 87 ; Code Civ.
Proc., 1618.
It is the duty of the court and executor to close the admin-
istration speedily and as soon as the debts and expenses of
administration are paid and there are persons entitled to the
possession of the estate : Estate of Pritchett, 51 Cal. 568 ;
Estate of Hinckley, 58 Cal. 457, 518; Code Civ. Proc, sees.
1652, 1665.
An estate may be distributed to a trustee, he being entitled
to the possession and control of the same : Code Civ. Proc,
sec 1699, amendment of 1895; Code Civ. Proc, sec. 1702,
amendment of 1891.
A trust will not be permitted to fail for want of trustee
Hill V. Den, 54 Cal. 6-20; Estate of Hinckley, 58 Cal. 457
Smith V. Davis, 90 Cal. 25, 25 Am. St. Rep. 92, 27 Pac 26
Code Civ. Proc, sec. 1702 (amendment).
The probate court will determine whether a valid trust
has been created: Estate of Hinckley, 58 Cal. 458, 518.
The executor must close his account as executor before be-
ing charged as trustee : Perry on Trusts, par. 263.
Wherever a trust is created a legal estate sufficient for
the execution of the trust shall, if possible, be implied.
The court has in some instances supplied the estate in
toto, as where a testator devised to a feme covert the issues
and profits of certain lands, to be paid by his executors, and
it was held that the land itself was devised to the executors
in trust to receive the rents and profits and apply them to
the use of the wife: 1 Lewin's Law of Trusts, 213.
By distributing this estate, which is now in condition for
such distribution, to a trustee, the court will put the estate
in the best condition for the execution of the intention of
the testator and the law, and enable the administrator to close
his work, now in the eighth year, and receive compensation
for his services.
Estate of Moxey. 369
All parties interested in said estate consent to these pro-
ceedings, and, there being no limitation in the will upon their
power to alienate their interests, it would appear that the
court should exercise its discretion, if any, in their favor : Civ.
Code, 699-867.
Application granted.
The Commissions of an Executor or Administrator are not payable
until the close of the administration and the settlement of his final
account. They will not be settled and allowed piecemeal as the ad-
ministration progresses: Estate of Miner, 46 Cal. 564; Estate of Dunne,
58 Cal. 543; Estate of Rose, 80 Cal. 166, 22 Pac. 86; Bemmerly v.
Woodward, 136 Cal. 326, 68 Pac. 1017; Estate of Strauss, 144 Cal.
553, 77 Pac. 1122; Estate of Dewar, 10 Mont. 422, 25 Pac. 1025. When
there are two or more executors or administrators, the commissions
should be apportioned to each in proportion to the labor he has per-
formed. Each is not entitled to an equal share merely because of
his office: Estate of Carter, 132 Cal. 113, 64 Pac. 123; Estate of
Coursen (Cal.), 65 Pac. 965; Hope v. Jones, 24 Cal. 89; Dudley's Es-
tate, 123 Cal. 256, 55 Pac. 897. Neither can one, by excluding the
others against their will from any participation in the administration,
deprive them of all claim to compensation: Dudley's Estate, 123 Cal.
256, 55 Pac. 897.
Estate and Guardianship of GA(iE H. MOXEY, an In-
competent Person.
[No. 27,338; decided March 6, 1903.]
Guardian of Incompetent — Matters for Consideration in Appointing.
In proceedings for the appointment of a guardian for an alleged in-
competent and for her estate, the opinion of an alienist as to her
mental condition over sixteen years before, when he visited her in a
social way and conversed with her, is not too remote for consideration,
because in such cases the personal history of the subject and her
heredity, temperament and diathesis, are taken into account to enable
an intelligent appreciation to be had by the investigator, whose judg-
ment must be instructed as to effect or defect by searching for cause,
however far back it may seem necessary to trace it. The concern of
the court, however, is not with the condition of the alleged incom-
petent at such previous time, but with her status as to competency
of mind at the date of the application for guardianship and at the
Prob. Dec, Vol. II — 24
370 Coffey's Probate Decisions, Vol. 2.
time of transactions therein referred to as conceived in fraud with a
view to imi>ose upon her and obtain her property through her mental
weakness.
Guardian of Incompetent — Nature of Proceedings to Appoint. — A
proceeding for the appointment of a guardian for an incompetent
person and for his estate, as provided by section 1763 of the Code of
Civil Procedure, is not an inquisition in lunacy, but an inquiry as to
mental competency to manage one's property.
Insane Persons Distinguished from Incompetent Persons. — ' ' Insane ' '
and "incompetent" are not necessarily convertible terms; a person
may be incompetent by reason of insanity, or from some other cause
incapable of caring for his property.
Guardian of Incompetent — Jurisdiction of Court to Appoint. — What-
ever doubt existed in former times as to the authority of courts to
appoint guardians for incompetent persons, as distinguished from
persons actually insane, is now removed in this state by the explicit
language of the statute, conferring jurisdiction in this class of cases,
and making it the peculiar province of this tribunal to protect any
person proved to be within the purview of the statute.
Guardian of Incompetent — Matters for Consideration in Appointing.
In determining whether a guardian should be appointed for an alleged
incompetent woman, it is important to consider the value and char-
acter of her property, the persons by whom she is and has been sur-
rounded, and whether they are not seeking to profit by her mental
weakness and to obtain advantages which in other circumstances she
might resist, and also whether she has in fact been overreached and
imposed upon, and is in the exclusive control and keeping of persons
who have acquired absolute dominion over her and deceived her to
their own gain.
Betrothed Persons — Business Transactions Between. — The relations'
of betrothed persons being of an extremely confidential character,
the law imposes, in case of business transactions between them, the
utmost circumspection and care to forefend fraud. If the woman is
about to convey property to the man, he should see that she has the
assistance of a competent attorney.
Betrothed Persons — Conveyances Between — Suggestions of Fraud. —
The fact that a deed from a woman to her fiance purports to be based
on a pecuniary consideration, when in fact there is none, is a strongly
suspicious circumstance, particularly when she is suspected of mental
weakness.
Betrothed Persons — Conveyances Between — Secrecy. — Where a
woman, suspected of mental weakness, gratuitously conveys property
to the man to whom she is betrothed, the fact that the deed is pre-
pared and executed in haste; that the gift is excessive; that there is
lack of opportunity for calm consideration and reflection; that the
deed recites a money consideration, and a covenant of warranty and
Estate of Moxey. 371
an agreement to furnish an abstract up to date; that the grantee vir-
tually dictated or supervised the making of the deed, while his inti-
mate friend and associate prepared the instrument; and that the
grantee is admitted to have influence over the grantor, through her
fatuous fondness for him — all these are circumstances strongly sug-
gestive of fraud.
Marriage — Mercenary Alliances not Favored. — Mercenary marriages
are abhorred in equity, and not favored otherwise where the surround-
ings point to an unworthy motive, and the conduct of the party who
is pecuniarily benefited suggests insincerity or bad faith, and indicates
that he has taken an undue advantage of the other's weakness of will
or confidence in him, springing from intimacy of relation.
Marriage — Duty to Make Public. — When parties are married, though
ceremonially, it is their duty to themselves and their obligation to the
State to follow up the rite by living together as husband and wife and
affording public evidence of that relation. So far as the immediate
interest involved is concerned, it matters little compared with the
interests of organized society.
Marriage — Publicity — Nature and Sanctity of Institution. — Mar-
riage is more than a contract; it is a status; it is an institution of
society and i'ts foundation; it does not come from society, but con-
trariwise; it is the parent of society, and it is extremely important
that its stability shall be secured, and that its contraction should be
surrounded by safeguards and its sanctity upheld; and every solemni-
zation of marriage should be in the face of the public; there should
be no secrecy either in ceremony or in connubiation.
Mental Incompetency — Sudden Change of Affections. — Sudden and
groundless suspicions of the affection and fidelity of tried and trusted
relatives and friends are common symptoms of unsoundness of mind,
and so are hastily conceived affections for and confidences in mere
strangers and newly made acquaintances.
Mental Competency — Value of Opinion Evidence. — The opinion of
witnesses as to the soundness of mind of a person sought to be put under
guardianship as an incompetent are not entitled to so much weight
as facts, especially when conflicting; for when a fact is established,
it is a fact and cannot be overcome, while an opinion is but an
opinion, and it may be true or false in its inference.
Guardian of Incompetent — When Should be Appointed. — The claim
of the petitioner in this case that the respondent is incompetent, that
she is incapable of taking care of herself and her property, and that
she is likely to be imposed upon by designing and artful persons, is
held by the court upon an examination of the evidence, to be fully
made out, and the petition for the appointment of a guardian of her
person and estate is granted.
372 Coffey's Probate Decisions, Vol. 2.
Application for letters of guardianship.
Bishop, Wheeler & Hoefler, L. M. Hoefler, William Rix,
C. W. Cobb and E. M. Ilea, for applicant, Harry Lester Man-
deville.
Irwin J. Truman, Jr., F. S. Oliver, S. V. Costello, for re-
spondent, Gage II. Moxey, otherwise Gage H. Phillips.
COFFEY, J. The applicant is the son in law of the re-
spondent, whom he charges with incompetency under the
statute, alleging that she is over the age of fifty-six years, a
resident of San Francisco, and mentally incompetent to man-
age her property, and that by reason of disease and weak-
ness of mind she is unable unassisted to properly manage and
care for herself and her property, and by reason thereof would
be likely to be deceived and imposed upon by artful and de-
signing persons, and that she has been so deceived and im-
posed upon by certain persons named answering that de-
scription. The circumstances recited in support of this alle-
gation are that some time prior to the month of May, 1902,
respondent was the owner of a redwood timber ranch in
Mendocino county, two thousand four hundred acres in area,
worth about $24,000, and also a parcel of land and improve-
ments thereon in Boston, Massachusetts, valued at $200,000 ;
she being then a resident of San Francisco as an unmarried
woman, being the divorced wife of one Harrison F. Ilawkes ;
that at about this time she met one John D. Hoover, who
was conducting an establishment in this city known as the
Hoover University of Physical Culture, and in whose employ
was one Oliver N. Moxey, an unmarried man, twenty-six
years of age, these two persons having classes for the teach-
ing of physical culture and being the professors in the insti-
tution mentioned ; that respondent undertook to receive in-
struction therein, and in that way she made their acquaint-
ance ; that they, learning of her mental weakness and material
wealth, with design of defrauding her, and by deceiving and
imposing upon her to acquire her property, conspired, con-
federated and combined in that behalf, and, in the execution
of their purpose, it was agreed upon between them that Moxey
should pretend to pay his attention to her with the view of
marriage, and that he should induce her to voluntarily con-
Estate of Moxey. 373
vey to him as a gift said real property ; that, in pursuance of
said plan and scheme, on or about the 23d of May, 1902,
Moxey having become engaged to marry respondent, induced
and persuaded her to deed over to him without consideration
the Mendocino ranch, and that he caused to be prepared a
certain deed of that date conveying to him said property for
the purported consideration of $10, although in fact no money
or other good consideration whatever passed from said Moxey
to her, and that thereupon Moxey caused a deed of said prem-
ises to be recorded in Mendocino county, and thereafter exer-
cised full dominion over the property and shortly afterward
mortgaged the same for $5,000, which he appropriated to his
own use ; and that subsequently, and in furtherance of their
common plot and project. Hoover, in his own hand, prepared
a deed of the Boston property purporting to convey the same
from respondent to Moxey in consideration of $20, although
in truth no actual consideration whatever passed between
them ; that this deed was so prepared by Hoover, who accom-
panied Moxey and respondent to the office of a notary, where
she, acting under the influence and control of Hoover and
Moxey, signed and acknowledged a deed to said property and
delivered it to Hoover; that afterward and on the same day
Moxey accompanied respondent to San Jose and there, before
a justice of the peace, was married to her, and, it is averred
by applicant here, that this ceremony was celebrated and con-
summated solely for the purpose of perfecting the scheme
concocted between him and Hoover to obtain her property
and the whole thereof that was subject to her control. After
the marriage Hoover took the last-mentioned deed to Boston
and caused the same to be recorded. During the period from
the first acquaintance of the respondent with Hoover and
Moxey the former actively promoted the pretended suit of
the latter for her hand by impressing upon her the great love
and affection which the said Moxey professed for her, and
they both sought to impress upon her mind the great advan-
tage of a marriage with Moxey. The result of the sinister
scheming and mutual machinations of these two men was the
securing of the deeds and the procuring of the marriage as
related.
Such is the situation in epitome as described in the appli-
cant's petition.
374 Coffey's Probate Decisions, Vol. 2.
It is not the case of an alleged lunatic, within the legal
meaning of the term, or of a person who sometimes has under-
standing and sometimes not; although it is in evidence that
respondent spent five years as a patient in a sanitarium or
private hospital for mental diseases in Brookline, Massachu-
setts, from 1881 to 1886, committed thereto by a magistrate
upon physician 's certificate, at which time she was thirty-four
years old and the mother of one child ; she herself testifies
that she went to this institution voluntarily, because she had
peritonitis and uterine trouble and sought rest and treatment
under the care of her friend, Dr. Channing, the superinten-
dent of this retreat or home for persons suffering from nerv-
ous disorders. This doctor was not allowed by the court to
testify as to her condition mentally or her acts while in his
charge, but another physician. Dr. Jelly, of Boston, an
alienist of experience, chairman of the Massachusetts State
Board of Insanity and supervisor of all the insane hospitals
in the state, and examiner in insanity in Suffolk county, was
permitted to give in evidence the result of his observation when
he saw her in a social way several times during her sojourn
in the sanitarium, and he relates that on one occasion shortly
before her release he had quite a conversation with her about
herself; he was familiar with her history, and he took great
interest in her because she was suffering very much, and he
and Dr. Channing thought it was a case that ought to get well,
and the two physicians talked it over many times, but his
own calls at the asylum were social and he did not there visit
her as a patient ; her mental malady was acute suicidal melan-
cholia, and this condition might have arisen without any
physical ailment and it might have been caused by bodily ill-
ness ; but he had not seen her in nearly twenty years.
It is objected that this testimony is too remote for considera-
tion in this incjuiry; but in such cases personal history of the
subject and her hereditary, temperament and diathesis are
taken into account to enable an intelligent appreciation to be
had by the investigator, whose judgment must be instructed as
to effect or- defect by searching for cause, howsoever far back
it may seem necessary to trace it. What alienists denominate
the etiology of the case is of value in reaching a conclusion,
where mere casual observation of a condition so obscure in its
Estate of Moxey. 375
diagnosis at times would be without avail. The evidence in
this record as to family history is meager, but enough appears
to show that several members of it were subject to mental
infirmities. Whether or not at this distance of time there are
any sequelae surviving of the distemper which caused her con-
finement in the sanitarium is difficult to determine. The
concern of this court, however, is not with her condition in
the period indicated, the lustrum of 1881-86, but with her
statas as to competency of mind at the date of the application
and at the times of the transactions therein referred to as con-
ceived in fraud with a view to impose upon her and obtain
her property through her mental weakness.
This is not an inquisition in lunacy, but an inquirj^ as to
mental competency to manage one's property. "Insane" and
"incompetent" are not necessarily convertible terms. A per-
son may be incompetent by reason of insanity, or from some
other cause incapable of caring for his property. The statute
speaks of the "insane or incompetent" person and is here
quoted at length :
"When it is represented to the superior court, or a judge
thereof, upon verified petition of any relative or friend that
any person resident of the county is insane, or from any cause
mentally incompetent to manage his property, such court or
judge must cause a notice to be given the supposed insane or
incompetent person of the time and place of hearing the case,
not less than five days before the time so appointed; and
such person, if able to attend, must be produced on the hear-
ing": Code Civ. Proc, sec. 1763.
A subsequent section undertakes to define the terms used by
declaring that the phrase "incompetent," "mentally incom-
petent," and "incapable," shall be construed to mean any
person who, though not insane, is, by reason of old age, disease,
weakness of mind, or from any other cause, unable, unas-
sisted, to properly manage and take care of himself or his
propertj^ and by reason thereof would be likely to be de-
ceived or imposed upon by artful or designing persons : Code
Civ. Proc, sec. 1767.
The intention is plainly benevolent in the expression of this
statute, and it is not too laudatory of the law to say that it
represents the most advanced and enlightened legislation upon
376 Coffey's Probate Decisions, Vol. 2.
this subject so far enacted. At the common law the persons
included within the terms of the declaratory section were
without relief, and it was only by the beneficent assumption
by courts of chancery of jurisdiction and their wise applica-
tion and adaptation of the general principles of justice and
humanity to the case in hand that a remedy was obtained, but,
until the progress of legislation made the matter certain, the
exercise of equitable jurisdiction was engaged in timorously.
In the Matter of Barker, 2 John. Ch. 232, the great Chan-
cellor Kent said that the diiSculty which arose with him was
as to the extent of his jurisdiction, for the suggestion was
that the respondent's mind was so worn out by old a^e so as to
render him incapable of managing his property, and that
thereby he stood in absolute need of the protection of the
court against his own acts, and against the practices of evil
and designing men, and the chancellor remarked that the case
as stated was deeply interesting to humanity, and presented a
strong appeal to the powers and justice of the court, but he
had misgivings as to his authority to interfere in the premises,
for mere imbecility of mind, not amounting to idiocy or lun-
acy, had not until a then very recent date (1816) been con-
sidered in England as justifying an interference with the
liberty of a person over himself and property. Indeed, prior
to the Revolution no ease had gone so far. Lord Hardwicke
disclaimed any authority over mere weakness of mind, yet
Kent thought it certain that when a person became mentally
disabled, from whatever cause the disability might have arisen,
he was equally a fit and necessary object of guardianship and
protection, and the court of chancery was the constitutional
and appropriate tribunal to take care of those who were in-
competent to take care of themselves, and without such a
power, there would be a deplorable failure of justice. The
object is protection to the helpless, and no matter what causes
the condition, sickness, vice, casualty or old age, when it is
evident to the court that the person is reduced to mental weak-
ness and disqualified for the ordinary management of his af-
fairs, it becomes a case for equitable interposition and is
within the reason and necessity of the trust. The inquiry is,
however, peculiarly delicate, in most cases, because it con-
cerns the character of the party, and his natural rights, and
Estate op Moxey. 377
because of the difficulty there is in ascertaining the extent of
the decay of the mind as a basis for judgment. Whatever
doubt existed in the minds in former times as to the jurisdic-
tion of the courts is now removed by the explicit language of
the law conferring jurisdiction in this class of cases, making
it the peculiar province of this tribunal to protect any person
proved to be within the purview of the statute. Is the re-
spondent proved to be such a person? Is she in that class of
persons whose minds have become weak, though not insane, by
reason of age, disease, or any other cause, and who would, in
that case, be left without protection and liable to become the
victims of folly and fraud? It is urged here by her counsel
that no case has been made out against her because she has
not been shown to be so far debilitated in mind as not to be
equal to the general management of her own affairs, and that,
in the language of Lord Erskine, she is competent to common
purposes. What are the affairs to the management of which
she is incompetent? Those affairs may be of such a nature
that a certain degree of impairment of memory may render
her incompetent to their management, and yet she may not
be of unsound mind. It is not actual insanity, it is repeated,
that is here in question, but it calls as strongly for the protec-
tion of the court, not only in the interest of the individuals
affected, but as it concerns the state in the prevention of wrong
to citizens and the conservation of the rights of person and
property. This is the primary purpose of the proceeding.
The public ends to be served are the protection of property,
the prevention of fraud, and the providing against the incur-
ment of a public charge by consequence of improvidence in-
ducing indigence. Thus it will be seen that not only is the
welfare of respondent involved, but the general interest of the
community of which she is a component is implied.
It is important, in this inquiry, to consider the value and
character of the property belonging to the respondent, and
also to regard the persons by whom she is and has been sur-
rounded, and whether they are not seeking to profit by her
mental weakness and to obtain advantages which in other
circumstances she might resist; and it is furthermore impor-
tant to ascertain whether or not the alleged incompetent has
in fact been overreached and imposed upon, and whether she
378 Coffey's Probate Decisions, Vol. 2.
is in the exclusive control and keeping of persons who have
acquired absolute dominion over her and deceived her to their
own gain. It is claimed that she has been victimized owing
to her infirmity, and that the transactions in themselves and
their circumstances establish her incompetency, and that
through her own folly and the fraud of the persons named in
the petition she has been deprived of her entire property and
effects to their enrichment, and that this was the result of a
conspiracy concocted by them.
The property over which respondent had power of disposi-
tion, and which she transferred by deeds to Moxey, is esti-
mated to be worth over $200,000, consisting of valuable lands
in California and town property in Boston, improved city lots
well rented. Respondent gave this property to Professor
Moxey, to use her own words, because she loved him. The
timber lands were deeded to him after her engagement and
before their marriage, and the Boston lots on the day of that
event, but prior to the ceremony. The recipient of this token
of affection she first met in January, 1902, at Hoover Hall, a
school of physical culture, where she was introduced to him
by one of the class in which she was taking instruction and
where he was an instructor. She was then about fifty-five
years of age, born in 1847 ; he was about twenty-nine, born
in 1873 — a disparity of about twenty-seven years. In a short
time the teacher became attentive to his pupil, and in the space
of less than a month, on the 22d of February, 1902, while they
were out at the ocean beach, sitting on the sand, they became
betrothed. She had been married before, when she was
twenty-two or twenty-three years old, to one Harrison F.
Hawkes, with whom she lived for about twenty-one years and
from whom she was divorced in 1894 in California by default ;
she came here for the purpose of obtaining a legal separation,
leaving her husband behind without information as to her in-
tention ; she had been in this state prior to that time, and,
indeed, was an extensive traveler, having, after her residence
in the Channing Home in 1886, spent a year in a tour of
Europe and Egypt and subseciuently crossing the continent
to the Pacific coast on her own account. Besides the property
mentioned she has a life interest in a trust created by her
Estate of Moxey. 379
mother, the principal on her own decease to go to her daughter,
her two brothers, David and Leonard, being the trustees.
Mr. Moxey was a bachelor at the time of the betrothal, and
had no means save his income from his occupation or profes-
sion as a physieulturist. His own story of his struggles and
success is not an unusual recital. Born in England, he spent
there the greater part of his youth — at school from five to
fifteen years of age and then working on a farm until coming
to America, when seventeen ; hiring out as a farm hand for
about two years until he started for this state, and, on reach-
ing here, engaging at first in farming in Santa Cruz county
and continuing thereat for about six months; after that he
spent about two months in San Benito county, thence to San
Jose on an initial visit, where he remained two or three
months ; he was not employed at anything worth remembering
during this interval, but upon leaving San Jose he went to
work for the railroad company all along the Coast Division
for about twelve months, when he undertook a scholastic
course at the Garden City Business College, pursuing his pur-
pose in that institution for about two years, going thence to a
clerkship in the freight office of that city for several months ;
after that he was engaged in book canvassing in various towns
and soliciting for commercial orders, for a health food under
the auspices of the Hoover Health Club, and he assisted ]\Ir,
Hoover in the w^ay of physical culture at first in San Jose,
and, finally, he brought up in San Francisco about three years
since in the employ of Mr. Hoover as a teacher of physical
culture in what is called the Hoover University of Physical
Culture, at 1319 to 1327 ]\Iarket street. It was in this place
while so occupied that he met respondent some time in Janu-
ary, 1902, when he was introduced to her by a Mrs. Shipman,
to whom he had introduced himself at an earlier hour on the
same day in the same hall. Respondent joined his class and
took lessons several times a week, coming to the hall every day,
sometimes twice a day, and the two increased in the intimacy
of their acquaintance until their engagement, which occurred
on Washington 's Birthday. The day was not set at that time
for the ceremony, but subsequently, about six weeks or two
months prior to that date, July 14th was agreed upon for the
event. Mr. Moxey is not an adept in dates; he himself says
380 Coffey's Probate Decisions, Vol. 2.
that his memory is very poor in that particular — many im-
portant events in his life he cannot remember as to date ; but
these two items of interest are indelibly impressed vipon his
mind, the dates of his betrothal and espousal. At the time of
their first meeting he was acting as chief instructor for Mr.
Hoover, and here it may be important to note that the latter
named gentleman testified that during his absence from the
classrooms his place was filled by Professor Moxey, and that
he was absent therefrom from January to June, 1902, having
been injured by a street-car accident in December, 1901. He
went to Colorado to the home of his parents a few days before
Christmas, and returning to his room here remained there
convalescing from January to June 2, 1902, rarely going out-
side, and virtually abandoning all affairs of business until the
latter date, when, venturing into his physical culture school,
he met respondent near the entrance to the hall, near the stair-
way, and he was introduced to her by a Mrs. Ruthie, one of
his pupils, as Mrs. Phillips. The latter was at a distance and
his pupil said to him: "Don't you know who that lady is
standing there?" Hoover replied that he did not, whereupon
Mrs. Ruthie remarked: "That is Professor Moxey 's sweet-
heart; everyone in the class knows that." He did not know,
because he had not been attending the class for so many
months, Moxey being on duty in his stead. Before that date,
June 2, 1902, Hoover swears he had never seen respondent.
Respondent herself on her first examination stated that she
did not meet Hoover until the last of May or the first of June,
1902, although she might have talked to him over the tele-
phone in the middle of May, 1902. It was sometime in May,
she said, she first met him ; he had been ill. Later on in the
course of the trial she swore positively that she first saw him
on the 2d of June, 1902. This testimony is in conflict with
that of Mrs. Mary Turman, styled Dr. Turman, a quondam
teacher in the school, and a former pupil of Professor Hoover,
whom she had known for several years, and in whose institute,
she says, she took lessons regularly in the month of April,
1902. She had an office in the same building. In that month
she met him in the schoolroom and also saw respondent there ;
he asked this lady doctor if she had met Mrs. Phillips, and she
said ' ' No. ' ' He pointed out a lady on the floor and said that
Estate op Moxey, 381
she was a wealthy woman and told her to ask Mrs. Patten, his
private secretary, to effect an introduction. Professor Hoover
said that Mrs. Phillips was a friend of Professor Moxey 's and
was in love with him. Respondent was present in the school-
room at the time Hoover said this to Mrs. Turman, but was
not within hearing. Hoover further said that Mrs. Phillips
had proposed to Moxey; immediately after this conversation
Mrs. Turman was introduced to respondent.
Professor Hoover denies absolutely and in detail this state-
ment, but admits that he spoke to Mrs. Turman of a Mrs.
Phillips, another person, a wealthy woman living on Van Ness
avenue, near St. Luke's church, whom it was desirable to se-
cure for a pupil. He says that he was not in the classroom
or hall while any part of the exercises was in progress during
the period of January to June 2, 1902, although he had his
private office in the building and received the accounts there,
and occupied apartments where he dwelt in the same edifice,
but he attended to very little business connected with the insti-
tute and did not know who composed the class and rarely
visited the hall itself.
In comparing these statements there is an element of prob-
ability in that made by Mrs. Turman, arising from the ad-
mission of Mr. Hoover and from the circumstance of his prox-
imity to the place and person whom the conversation con-
cerned. Hoover admits enough to throw doubt upon his de-
nial of the substance of the story, which in itself is circum-
stantially probable. His statement that he did not know the
names of the members of his school at that time may be con-
sistent with his position as the head of the institution, but it
seems he knew some and was presumed by Mrs. Ruthie, his
pupil, to be acquainted with all, as is inferable from her sur-
prise that he did not know what everyone in the class knew —
that is, that Mrs. Phillips was Moxey 's sweetheart. The other
Mrs. Phillips, to whom he alludes, as being desirous of secur-
ing as a pupil, is rather nebulous, except as her points of age
and wealth and interest in physical culture coincide with the
respondent. It seems, from what he says, that Mr. Hoover
did give to Mrs. Turman names of persons to call on who were
interested in his science, and that he preferred pupils of the
description which embraced both this respondent and her
382 Coffey's Probate Decisions, Vol. 2.
namesake. The importance of this testimony is primarily that
it either implicates or exculpates Hoover in the alleged con-
spiracy to obtain the property of the respondent, comprising
transactions dated as far back at least as IMay 23d, 1902, when
the deed to the Mendocino property was executed, and his
denial, if true, being equivalent to the establishment of an
alibi, originally carried the inference that at the time laid
in the accusation he was in another place, and that it was im-
possible for him to have met her prior to the 2d of June, 1902,
because of his physical infirmity and necessary confinement to
his room and absence from his classes during the year 1902
up to that date. That it was not impossible may be seen by
an examination of his own evidence, from which it appears
that he was out of his room almost every day, sometimes for
half an hour at a time or an hour, and that he occasionally
w^ent to his private office and to the institute to talk business,
and that he was in the City Hall as a witness twice in May,
on the 7th and 27th of that month.
It was close to this time, to wit, on May 23d, 1902, that the
redwood transaction took place. As to the first deed, she says
it occurred this way : She and Moxey were lunching at the
Techau Tavern when she said to him, "I am going to deed my
redwoods to you to-day." She had not previously communi-
cated her intention to him ; she had said nothing to him at all
on that subject, although she had been thinking about it; it
was a surprise to him and so intended by her ; this was about
the hour of noon ; immediately after luncheon they went to the
law office of Mr. Delmas, a lawyer whom neither of them knew,
except as everyone knows him because of his eminence in his
profession, to seek his services to draw this deed, and there in
that office in the Call building a young man was found alone,
whom Moxey asked to make out the paper. She did not know
whether this young gentleman was Mr. Delmas or his clerk;
no introduction took place ; no recognition was had, for neither
knew the other. INIoxey entered and simply said, ' ' I want you
to make out a deed," and the gentleman consented. Then
she said, "I am going out; after the deed is made out I will
come back and sign it," and she went out, remaining away
about an hour, then returned and signed it and then went
downstairs and acknowledged it before a notary in the same
Estate of Moxey. 383
building, in which the Columbian Bank is situated; the deed
was recorded in Ukiah ; but another document had to be drawn
there because the first was faulty ; McNab and Hirsch were the
attorneys in Ukiah; this second deed was made in June or
July, while she was at Ul<iah ; her memory was very vague
about the circumstances of the making of the second deed;
Moxey was there ; she was not certain which of the firm of at-
torneys drew the instrument; she went there one day with
Moxey ; she did not think she knew anything about that deed
being made, did not remember it being changed ; knew it was
altered because the first was not made out right ; did not go
before the notary again ; did not think she had signed any
other paper ; had no recollection on that score ; could not recall
having been before a notary in Ukiah ; did not know the deed
was made over entirely, but knew it was changed ; did not re-
member acknowledging the document before Mr. Hirsch, the
notary; she thought it was somewhere about the 1st of July,
1902, that the deed was altered — upon these points her mem-
ory was very uncertain and treacherous; indeed, it may be
said that she had no memory of the circumstances, and that
her description of what took place is unreliable to an extent
casting doubt upon her competency. Although she had been
the owner of the Mendocino property for twenty years, her
estimate of its value was much below that of others conversant
with such lands, several thousands of dollars less.
As to her narrative of what transpired when she told Moxey
of her purpose to present him with this valuable estate in tim-
ber lands, it is worth while to compare his version with hers.
Moxey relates that they were at lunch at the Techau Tavern
when she said she was going to give him the redwoods ; they
had been speaking about these reciwoocls— about the tan-bark —
and she said she was going to give it to him that day. May 23,
1902 ; he had previously seen the land, and had gone up there
at her instance in regard to cutting the tan-bark, and, she ex-
plained afterward, she wanted to see how he would like the
redwoods, he meant the tan-bark. After lunch they went to
the office of Mr. Delmas and had the deed made out; it was
signed in that office. When he went in he asked the gentle-
man if he could make out a deed to some property and he
said he could do so. Moxey had the description of the prop-
384 Coffey's Probate Decisions, Vol. 2.
erty with him ; he had obtained it from respondent at the Tav-
ern. He did not remain in the otHce while the attorney was
drawing the deed ; he went out and was gone for nearly an
hour; the lawyer said it Avould take an hour to draw it and
Moxey retired from the room — respondent went out first alone
and he afterward ; where he went he could not remember and
he did not know where she had gone in the interval. He re-
turned, the deed was executed, and he transmitted it to Ukiah
for record. Another document was drawn later on in Ukiah
in the office of McNab and Hirsch. There was tan-bark cut
on this land, about six hundred cords, for which he had a con-
tract for sale, at $17 per cord, but all of it was not delivered
because it did not come up to the contract. This was on ac-
count of the trouble had with men cutting it and himself be-
ing taken away from the work through the lawsuits instituted
against him by Boston parties, including an attachment levied
here for $12,000.
It would appear from this that Moxey 's mind was in a recep-
tive condition for the surprise so suddenly sprung upon him
by her at luncheon, as she had some time before sent him up
to the redwoods to see how he would like them ; and it appears,
also, from the testimony in this controversy that two days
before he was so surprised he called on William Thomas, who
had been the attorney for respondent, to inquire in regard to
the condition and value of her Mendocino property; this was
on May 21, 1902. Thomas asked Moxey what he could tell
him about it, and Moxey said he would like to know what it
was worth. Thomas asked him if he was a purchaser of the
property or contemplated purchasing; he replied no, that he
was a friend of Mrs. Phillips and wanted to handle it.
Thomas told him that he did not know the value of the lauds,
as the matter was in charge of Mr. Smith, an attorney, clerk
in the office, but that he had been assured that the tract was
some of the most valuable redwoods in the state, but he could
not give an exact idea as to the valuation. Moxey then asked
Thomas to show him some of the papers, which he said, "I
understand are in your office." Thomas asked, "What
papers?" Moxey said, "I would like to see the description
of the property, the map, and tax receipts." Thomas replied
that before he could accede to this request he would require
Estate of Moxey. 385
an order from Mrs. Phillips and upon the production of such
a memorandum he would instruct his clerk to devote all the
time necessary to him. It is curious that if Moxey had no
precognition of the purpose of respondent he should have been
so inquisitive in advance of her declaration at the Teehau Tav-
ern luncheon. The interview between Thomas and Moxey
was rather heated, because the former resented the manner of
the latter 's intrusion into his office, and this may, in part, ac-
count for avoiding further intercourse with that lawyer and
choosing a strange attorney, for it was Moxey that conducted
respondent to the office of Mr. Delmas and selected a gentle-
man utterly unknown to him and to her, and there caused an
instrument to be prepared in such haste, that the description
was so fatally defective as to render necessary a second deed
before a loan could be negotiated thereon. If respondent con-
trolled the situation and had mastery over her own volition
at the time, it should seem remarkable that she would deliber-
ately adopt a course of action in a matter of such magnitude
as to consult a stranger and ignore her own legal adviser, Mr.
Thomas, whose office was but a short distance further down-
town, where full information and complete data were accessi-
ble, and competent advice was at hand, and where a perfect
conveyance could be prepared and all the details of execution
accurately adjusted ; and where, moreover, she could have the
advantage of independent counsel as to her action. In and
by very virtue of his relation to her as his betrothed, Moxey
should have seen that she was so provided where he was to be
the sole beneficiary of the transaction. Their relations were
of an extremely confidential character, and the law imposes in
such cases the utmost circumspection and care to forefend
fraud. Mr. Moxey testified that he had no knowledge of re-
spondent's intention to donate the redwoods to him until the
luncheon, and that she told him she was going to give it to
him because she loved him and wanted him to have it, and they
happened to go to Mr. Delmas' office because she suggested
that gentleman's name and did not mention Mr. Thomas, and
that she furnished a typewritten description of the land, which
he never saw before, and that he knew nothing about the
extent or value of the property before the deed was drawn
Prob. Dec, Vol. II — 25
386 Coffey's Probate Decisions, Vol. 2.
and had made no inquiries on this subject. In respect to this
statement, his visit to and interview with Mr. Thomas may be
worthy of consideration as hereinabove narrated. It cannot
be doubted on this record that he had made in({uiries in the
quarter where information was lodged, and that his endeavors
were not successful at the time. Respondent's description of
the circumstances of the making of the redwoods deed is cal-
culated to suggest that she was deficient in business sense, or
so subject to the control of IMoxey by reason of her infatuation
for him that she was destitute for the time of ordinary powers
of memory and reflection ; she left the whole matter to Moxey ;
she did not request the deed to be made ; he did that ; she did
not know that she said anything, he might have said that he
could do the business as w^ell as she could, perhaps better, so
she got him to do it ; she gave him the tax receipt ; she did not
know Delmas ; Moxey did not ask the lawyer's name, she could
not remember the notary; she was sure she went downstairs
two floors to acknowledge the deed, whereas the notary's office
was one flight higher ; her memory was a medley upon the de-
tails of the making of the first deed ; when she went out of
Delmas' office while the young man was engaged in the opera-
tion she remained away for some time and upon her return
she lost her way and could not find the place ; she went to dif-
ferent floors, found it finally ; she was very much confused in
her recollection of these matters, and so far as appears from
her recital she acted in a manner mechanically or automati-
cally ; she gave no instructions to the draftsman of the docu-
ment; said nothing while in his office; Moxey did all the talk-
ing and paid the attorney for his services. Throughout all
this performance Moxey was the dominant factor and princi-
pal actor — indeed the only one, as she but played the part of
a puppet in his hands; and he did not wait long to realize
upon this act, for within a week or two, when the imperfection
of the first deed was cured, he secured a loan of $5,000 from
the Bank of Ulciah; besides which he received over $6,000 on
a contract for tan-bark, which was abandoned because after
nearly four hundred cords had been delivered, the purchaser
found it was not up to standard ; the buyer testified that he
paid some of the purchase money to Moxey and some to
Hoover. Moxey testified that he spent all of the money, and
Estate of Moxey. 387
more, too, on the tan-bark, which turned out to be an unprofit-
able venture because of the lawsuits brought against him — that
is to say, he expended more than $11,000 on the tan-bark
proposition, which would have been profitable if he were not
interfered with by litigation.
Where the excess expended came from does not appear in
this record. Respondent herself testified that she raised $10,-
000 last year (1902) from January 1st to September 1st, all
of which had been spent by the latter date, $5,000 by her hus-
band in cutting the tan-bark and $5,000 she had consumed on
herself, and she never gave Moxey a dollar before their mar-
riage, which took place on the 14th of July, 1902, in the after-
noon, in San Jose. It was on the morning of that day that
she requested Professor Hoover to make out a deed of her
property in Boston : " I told him that I wanted him to make
it out for my Moxey ' ' ; she said she was going to surprise
him on his wedding day ; Moxey was present then and there
when this surprising statement was made; this was about 10
o'clock or half -past; she could not remember exactly; "I was
going to surprise him because we were going to be married
that day." All she could tell Hoover about the description
was the street and the height of the building and the granite
front ; she did not know the depth nor the width of the build-
ing; that had to go back to Boston and be filled in. After
she told Hoover to draw the deed, she went down to the
Nevada Bank for her mail and from there she went to the
Palace and there met Moxey by appointment and had lunch
with him at that hotel ; after that meal they went to the office
of Justin Gates, notary, where they found Mr. Hoover, ac-
cording to arrangement, as she had told him when he had the
deed ready to inform her at what time to meet him and she
would come and sign ; he had made it out, she supposed, on
Monday morning, but she did not know; he made it out and
she went and signed it when it was ready; in the notary's
office she said, "Do not have that put on record until it is
filled out ; if you do it won 't be legal ; have it filled out before
it is put on record" ; she said this to Moxey; nothing else was
said ; she went out ; was in that office but five or ten, perhaps
fifteen, minutes ; no writing was done except signing the deed ;
Hoover did not sit down and write while she was there ; he did
388 Coffey's Probate Decisions, Vol. 2.
nothing after she arrived there ; the deed was ready as soon as
she entered the room ; she made her remark in the presence of
the notary, Hoover, and IMoxey; four persons in all present
including herself ; she could not precisely say what -was omit-
ted, but it was all of the description from the word
' ' bounded " ; all of that was blank when she signed the deed ;
she gave the paper to Mr. Moxey, who put it in with his
papers, and he sent it back by Mr. Hoover to Boston to be
recorded ; the incident in the notary 's office occurred after
1 o'clock, perhaps as late as 2 that day; she could not re-
member that the notary said anything, but she said to Mr.
Hoover, "It must not go on record until it is properly filled
in"; she said, "It is not legal"; he said, "It may never go on
anj^ record"; she replied, "It must go on record as soon as
it is filled in " ; then she went up to the house and afterward
took the train for San Jose, and there met Moxey, who had
preceded her to that town, and they were married.
As to the antenuptial events of the morning of the wedding
day, Justin Gates, the notary, testified that Hoover came to
his office and asked him if he had any warranty deeds; the
notary said "Yes"; he had blanks of that kind; this was
about half-past 11 or quarter to 12 o'clock. Hoover then re-
quested the notary to remain in his office a few minutes ; this
was just before the lunch hour and he consented to defer
luncheon until Hoover returned, which was in about ten or
fifteen minutes, when he brought with him a lady and gentle-
man. Gates gave Hoover the form of a deed and the latter
asked him if the instrument could not be executed in blank,
the former said he thought it would not be legal to do so, and
that some sort of description should be given, that it would
not be proper to sign first and fill in the description subse-
quent to the execution ; the lady who gave her name to the
notary as Mrs. Gage H. Phillips gave the description, such as
it was, that was inserted by Hoover, who wrote the matter,
filling in the blank so far as she gave the material, "Lots
No. 122, 124, and 126 situated on Summer street," and from
that on as now written in that blank was not in there prior
to execution nor was it inserted at all in his office or in his
presence; the lady made no remark only in response to
Hoover that she did not know the description except so far
Estate of Moxey. â– 389
as given; the notary was sure that the remainder of the de-
scription now there was not in that document when it was
acknowledged before him ; all of the written matter was in-
serted by Mr. Hoover then and there and it occupied him
nearly fifteen minutes; the man who was with Mrs. Phillips
had very little to do with the matter ; he may have said a word
or two and the lady was silent, except as related; Hoover
transacted all of the business with the notary, and when the
former proposed to first acknowledge the deed and then fill
in the description, the lady made no objection to such a
course ; but the notary would not have it that way, as he
thought it not proper. The notary presents Hoover as the
foremost figure in this scene of the execution of the Boston
deed, and the professor's story of the circumstances connect-
ing him with the affair is to be considered : Mr. Hoover testi-
fied in his direct examination that he saw Mrs. Phillips on the
morning of the 14th of July, 1902, in his private office, 1327
Market street, when she asked him if he could make out a
deed; he said that he could, and she said, "I want you to make
out a deed for me " ; he asked her for a description of the
property, and after she gave that to him, he told her that
he was busy preparing to go east the next day, and he would
rather she would have her attorney make out the deed, as he
himself was very busy; she replied that her attorney had
made out a deed for her and it would not stand of record;
she asked him if he would not make out a deed that would
stand and he did so ; this talk took five or ten minutes ; then
she left the room ; he made out the deed ; and then again saw
her in the office of Justin Gates, the notary, on McAllister
street. When respondent asked Hoover to draw the deed she
said she wanted to give it to Mr. Moxey ; she said she wanted
to deed this property to her husband and present him the deed
that day as a wedding present and as a surprise to him,
whereat Hoover smiled and she said, "We are going to be
married to-day." Hoover then told her a notary was neces-
sary to acknowledge, and consulting the directory found that
the nearest one was Justin Gates, and he made an appoint-
ment for his office, 14 McAllister street, with her, and Hoover
went there between 1 and half-past 1 that afternoon. When
he arrived at the notarial office he found Justin Gates and
390 Coffey's Probate Decisions, Vol. 2.
a lady who was not Mrs. Phillips. Hoover was there not
more than five or ten minutes when she came in with Moxey.
Hoover told the notary that those were the parties who were
to acknowledge the deed, and she signed it and that was all
there was to it. Gates told her that the description of the
property was not completed and it should be filled in before
the deed was recorded ; the notary told her that two or three
times and Hoover told her so once or twice. She replied that
she was aware of that fact and did not want it recorded until
it was properly filled in, and they would not have any fur-
ther trouble over it ; at the time the deed was acknowledged
before Gates the description was filled down to and including
the word "bounded," Hoover wrote in the blank form and
that portion of the description, the remainder was inserted
afterward, as she could not at that time give him the boundary
lines and she cautioned him twenty times to see that it
was properly filled out before recording ; she did not know
the boundary lines ; she told him to be very sure and have
every word inserted so there could be no trouble ever made
with the deed, and to be very accurate and careful. After
it was signed Justin Gates gave the deed to Mrs. Phillips
and she handed it to Moxey, and he turned it over to
Hoover, who placed it with his valuable papers — that is,
Moxey 's papers in the latter 's office, and the next day, the
15th of July, 1902, Moxey handed it back to Hoover, ask-
ing him to have it recorded when he went East. "They"
asked him if on his eastern trip he would take in Boston —
he could not say which of the two made the specific in-
quiry — but Professor and Mrs. Moxey were both present.
Hoover answered that he expected to be in Boston in two
or three weeks, but he was not going direct there. He
started that day, the 15th, and after visiting various places
finally reached Boston. Arriving there he went up to see
the property on Summer street and took an apartment op-
posite, about a block off, thence proceeded to the hall of
records, had the stenographer take an exact copy of the
deed formerly given to Mrs. Phillips, and then returned to
his room and completed the description in the document
he had carried from California, then took it to the court-
house and filed it for record. He received back the original
Estate of Moxey. 391
the next morning and sent it by registered mail to Professor
Moxey; he did not stay long in Boston; at the request of
Mrs. Moxey, he inspected the property and called on Mr.
Edward Phillips and had a conversation with him about the
renting of the premises on Summer street. Mrs. Moxey
had told Hoover that he should go and pretend to try and
rent this property, or, in other words, to investigate why her
property, which was situated on such a prominent street,
had not been rented for so many years — that was his reason
for seeking out Edward Phillips, to whom he said that lie
wanted to see the vacant rooms over 122, 124, and 126
Summer street. Phillips said he would show him those
over 128, 130, and 132, contiguous building, but Hoover told
him he did not want these but the others. Edward said
that the former was owned by his uncle, a wealthy man,
and that he himself was interested in the latter. At length
Hoover saw the rooms he first inquired for. He had further
talk with this Edward Phillips, who evidently wanted to
get rid of him, so he was impressed. He subsequently saw
the same gentleman in San Francisco, at the Manhattan
Hotel, and spoke with him there. Mr. Hoover testified that
he had no interest in this controversy of any kind, name,
or nature, financial or otherwise ; had been paid nothing for
his services and had no expectancy of profit or reward.
When Moxey was east in the fall of 1902 he collected some
money from the Krieg Company and paid it out to the work-
men. After hearing respondent testify that she had spoiven
to him on July 12, 1902, Saturday, about making the deed,
Hoover said she asked him on that day if he could make
out deeds, but she did not refer to any specific property.
In reference to the Boston transaction, Mr. Moxey testified
that on the morning of July 14, 1902, respondent came to
his room at 1327 Market street and reminded him that it
was their wedding day, and said she was going to make
him a wedding present of her Boston property and was
going to ask Professor Hoover to make out the deed, as she
was not satisfied with the Ukiah deed that was made out
by the lawyer in the Call building in May; this was about
10 o'clock in the morning. They went into Hoover's office
and he made out the deed; then they parted and afterward
392 Coffey's Probate Decisions, Vol. 2.
met at the Palace Hotel, took luncheon, about half-past 12,
at the noon hour, and went thence to Justin Gates' office,
and as they entered the notary was^ opening his door to
let a lady out and they found Hoover inside, who intro-
duced them to Gates. There was a little talk about the
deed, something about the description; he could not re-
member what for — he did not pay much attention; some
dispute about the description, whether it would be legal
with a part out. Moxey recalled asking her if she was
willing to sign it as it was with the omission ; she told the
notary "yes," but she gave them to understand she did not
want it to go on record that way. All this took about ten
minutes; at about half -past, he imagined, they left the
notary's office. She gave him the document and he handed
it to Hoover. Moxey and respondent went to the street-
car, where he saw her on, and himself proceeded to San
Jose for a license. Moxey met respondent at the depot
when she arrived in that city and they went straight to a
justice of the peace, by whom the civil rite was celebrated
v/hich united them in wedlock, and subsequently, on the
same evening, they returned to San Francisco, and he found
the deed in his desk and on the next day gave it to Hoover,
instructing him to have it recorded after being properly
filled in ; that was on July 15, 1902.
The circumstances of the evolution of the Boston deed
call for criticisms similar to those applied to the Mendocino
document. In neither case was she advised by her own
adviser, and in the latter she was without the aid even of
a practicing lawyer of any kind, but sought the service of
a person not known to possess the skill requisite for a trans-
action involving real estate worth $200,000; the alleged rea-
son for this singular act was that the lawyer who drew
the first deed made a mistake in the description, and, there-
fore, she desired to have so solemn a document drawn by
a man who was not a professed conveyancer, and who made
out an instrument more defective than the other.
It is noteworthy that each time the deeds prepared in
haste were characterized by like faults fatal to their valid-
ity. It must, however, be observed here that, although
Professor Hoover did not claim to be a lawyer, nor prac-
Estate of Moxey. 893
tice as such, he possessed a certificate of admission to the
bar from the United States circuit court of the northern
district of Illinois, Cook county, Chicago, May 5, 1898, but
no record of admission in any other court ; he did not un-
dergo an examination, but was admitted on motion of a
lawyer in whose office he studied, but he did not consider
himself an attorney. Hoover had been graduated as physi-
cian from the International University at Chicago, but he
did not claim to be a doctor of medicine ; he had, however,
studied law and physic, but did not hold himself out as a
practitioner in either. In regard to the instrument of con-
veyance drawn by him at the instance of respondent, he
did not act as a lawyer, but simply to accommodate that
lady and comply with her request; he could not recollect
where he obtained the blank form of the deed, and he wrote
in the description so far as she could give it. She did not
say that it would not be valid if not filled out. Hoover
thought it would be legal to fill in after execution and
before recording, although the notary seemed to entertain
scruples about that course. Hoover started for the east on
July 15, 1902, and returned between August 15th and 20th.
When he met Edward Phillips in Boston he did not give
any name to him, because respondent told him not to give
his real name ; he did not call there upon her brothers, be-
cause she told him not to reveal his identity back there, as
they might not like taking the property out of their hands,
as she was dissatisfied with their management; she did not
tell him that her brothers had had charge of it for thirty-
five years; she said they had had it for three years and
had not managed it to her satisfaction. The deed was
recorded July 22, 1902, two hours after Hoover arrived
in that city. When he had the talk in Boston with Edward
Phillips the latter asked Hoover several times what he
wanted the rooms in 122-126 Summer street for, and he
evaded answering until he was compelled to ; he was evasive
in his responses to Phillips under the instructions received
from Mrs. Moxey; he said to Phillips that the rooms might
be used for storing peanuts; he did not tell him that he
was going into the peanut business, but he was interested
in a peanut company at that time ; Phillips said it was a
394 Coffey's Probate Decisions, Vol. 2.
very strange business for that locality, but Hoover told him
it was strictly wholesale and not retail, and then Phillips
thought it would be all right ; of course, this peanut proposi-
tion was all in the air, so far as renting the rooms was
concerned; there was no such intention in Hoover's mind.
When he arrived in Boston Hoover was on the lookout for
something to eat, and as he went along from the station
the first place he espied was a rooming-house and he en-
tered and hired a room; as he came downstairs he encoun-
tered in the entrance a gentleman of whom he made inquiry
as to the whereabouts of the City Hall and other places
in the town ; this person said he had met Hoover before,
that he was a traveling man and had been at his place in
Colorado, and it turned out in the course of conversation
that the stranger belonged to two or three fraternal orders
of which Hoover was a member. He gave his name as Mr.
Young and volunteered to accompany him and show him
around; the proffer was accepted. Young was about five
feet nine inches tall, between thirty-five and forty-five years
of age, reddish hair and whiskers; he weighed about ten
pounds more than Hoover. Hoover is thirty-four years old,
five feet eight or nine inches in height, one hundred and
fifty-six pounds in weight; barefaced; sandy complexion.
Young went with him to the recorder's office; he did not
remember whether he gave the deed to this man to take
it in or whether he took it in himself, but he was under
the impression that Young was with him and both entered
together; they were always together, everywhere, in Boston
and Cambridge. Hoover could not remember the initials of
his constant companion who went once for the deed, but
it was not yet recorded. Hoover was not sure whether he
sent this Mr. Young to have the deed recorded or went
himself; he trusted Young, although he had just met him
that day, for "he seemed like he was a very nice gentle-
man"; he roomed in the same house. Hoover could not
remember the name or number of the street where he had
taken lodgings ; he could not remember whether he paid the
fee for recording before or after it was done ; he remem-
bered giving some money to Young, but did not remember
whether it was for the recording fees ; the fee was nominal ;
Estate of Moxey. 395
he could not remember whether it was in coin or paper
currency ; he thought he gave a gratuity to the clerk after
the recording, as that was the custom of the country in the
east ; he was in a hurry and he usually gave a little extra
fee ; he had probably chucked him a half-dollar as he had
done to the others. This Mr. Young wore a mustache. He
had gone two or three times at request of Hoover to obtain
the deed, but it was not ready, and finally they went to-
gether and obtained it; he did not remember ever to have
seen this man prior to meeting him as related. Hoover
swore that he never himself assumed the name of Young,
or gave that to anyone as his name.
The clerk of the registry of deeds, Frank J. Glancy, de-
poned that he remembered a person coming into his office
in Boston some time in July with reference to a deed of
Mrs. Moxey; a man of about five feet ten inches, light com-
plexioned, about one hundred and fifty pounds, heavy,
athletic build. Th§ first Glancy noticed of him he was down
in the record hall; he was talking with one of the young
ladies there, and she being busy sent him up to the clerk's
desk and he came and he said he wanted some one to run
a title for him, and then they together ran the records
back until they found a deed of property situated on Sum-
mer street, which went to Gage H. Hawkes, or Gage H.
Phillips. This man then started to make a copy of the
description, but, thinking it would take too long, accepted
the clerk's suggestion to have a typewritten copy made,
and he waited for it; it was then near noon — he came in
between 10 and 11 o'clock. The clerk went to his dinner
at 12, and told the man, whom he left behind, that one of
the other clerks would give him the copy. Glancy did not
see the man again until nearly 4 o'clock that day, when
he came in and gave the clerk a deed and he was told it
w^ould cost $1.85 to record it ; the man paid the fee and the
clerk recorded the paper; the man asked him if he could
record the deed and return it so that he could take a train
to New York that night; the clerk said that the best he
could do was to have it ready next day at 12 o'clock; when
he took the paper this man gave his name as Young ; when
he came in the next day and the paper was recorded Glancy
396 Coffey's Probate Decisions, Vol. 2.
remarked to him that there was no seal on the document,
but said it could be put on then; the man put on the seal
which the clerk gave him, and asked him if there was any-
more charge; the clerk said "No"; the man chucked him
a half-dollar, and said, "Here, go and get some cigars,"
and taking the deed, departed. The name of the grantor
in this instrument was Gage H. Hawkes, formerly Gage H.
Phillips; the grantee was a Mr. Moxey, first name forgotten
by the deponing clerk, Glancy.
The singular circumstance, common to the two deeds and
their development, demand consideration from the court in
connection with the main and controlling issue in this case,
the competency of the respondent, and atone for the lack
of brevity in their discussion. It must be borne in mind
throughout that respondent by her acts denuded herself of
every particle of property over which she had control, and
placed herself entirely in the power and at the mercy of
a young man, scarcely half her years, practically impe-
cunious — certainly from his own report of slender resources
and comparatively precarious prospects — with whom she
had after a few days' or weeks' acquaintance become be-
trothed, and to whom she conveyed all her possessions, leav-
ing herself not a modicum of her vast wealth ; and all this
without adequate or any advice from competent counsel or
disinterested friend, and prior to her marriage. If it be
said that, being betrothed to him, it was natural that she
should bestow her fortune upon this youth to whom she
had given her heart in troth, it may be answered that there
was all the more reason for securing safeguards in the mode
of transfer; for, as a learned judge has said, there is per-
haps no relation in life in which more unbounded confidence
is reposed than that existing between parties engaged to
each other. Especially does the woman place the most im-
plicit trust in the truth and affection of him in whose keep-
ing she is about to deposit the happiness of her future life ;
from him she has no secrets — she believes he has none from
her. To consider such persons as in the same category
with buyers and sellers, and to say that they are dealing
at arm's-length, is the acme of absurdity. If these trans-
actions were honest in conception and execution, and not
Estate of Moxey. 397
the fruit of the conspiracy charged, common prudence
should have dictated the employment of the talent and skill
of an experienced conveyancer, preferably an attorney
familiar with the affairs of the donor, instead of relying
upon a stranger or an amateur in an art so technical. If
the explanation of the respondent and Moxey be accepted
that she intended the instrument as gifts to him, to whom
she was engaged, ordinary sensibility and delicacy should
have inspired noninterference on his part, and even the non-
participation of his next friend and employer, Hoover, who
was so active and industrious from the inception to the
recordation of the Boston deed ; but in neither of these
transactions was there perceptible any such fine sense or
respect for the proprieties which should govern the situa-
tion ; and in the matter of the Boston conveyance, more par-
ticularly, which she stated expressly she designed as a sur-
prise to her intended husband, and about which he had no
foreknowledge, the evidence shows that he was present, and
no act of hers in connection with either performance was
accomplished without the power of his personality, and at
least in one case, that of Boston, the active assistance of
Hoover.
Inherent in these affairs are certain elements that may be
considered as tending to establish the accusations of the
petition. The fact that these deeds recite a false considera-
tion, and purport to be deeds of bargain and sale, convey-
ing the premises described therein for a pecuniary con-
sideration, whereas none passed, is regarded by the law as
a strongly suspicious circumstance ; especially is this the
case when regarded in connection with an alleged gift be-
tween persons holding relations mutually confidential and
when the donor is suspected of mental weakness. The
secrecy of the acts, so far as the persons upon whom the
respondent would naturally rely for advice are concerned,
is a suggestive feature. In all cases of this kind the ele-
ment of secrecy is dwelt upon as affording strong ground
for suspicion. The haste in which each instrument was pre-
pared and executed; the excessiveness of the gift; the lack
of opportunity for calm consideration and reflection, and
want of time for deliberate perusal, in a matter so mo-
398 Coffey's Probate Decisions, Vol. 2.
mentoiis, particularly as the Boston document, which she
intended as a wedding gift, yet recites a money considera-
tion and contains a covenant that she would forever war-
rant and defend the title she had conveyed, and would,
also, furnish an abstract up to date, this latter clause
written in by Hoover, the draftsman of the whole ; that the
grantee virtually dictated the one deed and supervised the
other, which was prepared by his intimate friend and as-
sociate; his admitted influence, through her fatuous fond-
ness for him over respondent, — all these and other elements
elsewhere adverted to are discoverable in the circumstances
of either one or both of these transactions ; and in consider-
ing the testimony, acts and conduct of respondent and the
two professors in connection with the deeds, we must have
constantly in mind their relations of intimacy and confi-
dence and the natural influence of propinquity, steadily
cultivated until the end was attained, the acquisition of her
entire estate by Moxey prior to the marriage.
The counsel of respondent, in commenting on the evi-
dence, said that every act of hers was exaggerated, and
mountains were made out of molehills, and he called atten-
tion to the lady herself and her conduct in court and on
the stand, and her testimony exhibiting memory, will, under-
standing and power of concentration, reasoning capacity,
coherence, clearness of explanation, tests of competency,
all of which she manifested when under examination to an
uncommon degree ; and counsel further alluded to the char-
acteristics of insanity or incompetency, as shown in external
appearances — voice, face, eyes, motions and other phenom-
ena, in none of which was she eccentric, or out of the
orbit described for rational beings. In reference to this
comprehensive claim of counsel, allusion may be made to
the episode in the trial in which the name of Mrs. A. Lloyd
Smith figured, and the total failure of memory on the part
of respondent when first interrogated as to the matter. In
answer to the question at first put to her about this person.
she said she did not know a Mrs. Smith or a Mrs. Jones;
there had been no allusion by the examiner to the latter
name ; she said she had never met a Mrs. Lloyd Smith who
lived at the Palace Hotel; she did not remember going to
Estate of Moxey. 399
that place to meet a lady there; she had never been in-
troduced as a Mrs. Gage in the Palace parlors to a lady
who had oil stock for sale ; she repeated that she never
knew a woman by the name of Mrs. Lloyd Smith. Re-
spondent was firm as to the fact that she never met and
did not know such a person; but, subsequently, petitioner
applied upon an affidavit for an order to examine vipon
commission to Seattle a Mrs. Lloyd Smith, said to reside
there, and that person having been found, her deposition
was taken and read in evidence, from which it appeared
that the substance of the matter recited in the affidavit
was true. Mr. Moxey was present in Seattle at the time
of the taking of this deposition, and he afterward testified
in this court confirming the essential features of the Smith
story. After that, when respondent was recalled to the
witness-stand, she said that she had not remembered when
she was under examination a short time previously that
she had ever met or known Mrs. Smith, but after her testi-
mony was over for that day Moxey reminded her of the
incident of meeting the woman, and then she recalled the
visit to the Palace, but she could not recollect what con-
versation occurred ; something was said about oil stocks —
she could not remember what. Mrs. Smith did not impress
her and she never thought of her again; she had heard
her spoken of since this case began, — indeed, lately she had
heard nothing but Mrs. Smith. She denied point blank that
she had ever told Mrs. McWilliams or Mrs. Shipman that
Mr. Moxey had spoken to her of a Mrs. Smith, a very
wealthy woman, who was very much in love with him and
who wanted to marry him if respondent did not do so ;
she did not say to either that Moxey told her that this
Mrs. Smith lived in New York and was quite wealthy, and
that she wanted him to marry her and take charge of her
property, and that if respondent should not marry Moxey
he would marry Mrs. Smith, nor did she say that she loved
Moxey and did not want to lose him, nor did she say to
either that she had met this Mrs. Smith at the Palace Hotel ;
in fact, she never mentioned the name of Mrs. Smith to
either of these women.
400 Coffey's Puobate Decisions, Vol. 2.
Mrs. ]\Ic Williams testified that she had made such state-
ments, and Mrs. Shipman made a similar statement as to
what respondent communicated to her on the same subject;
each of the conversations with these witnesses being inde-
pendent of the other. If she had such a lapse of memory
as to the main event, until her recollection was revived by
Moxey, is it not reasonable to suppose that she was utterly
oblivious as to her conversations with these ladies, who
were not hostile witnesses, in the moral sense, and to whom
there is imputed no motive for mendacity. Wliat is the
inference from this evidence as to the Lloyd Smith episode?
It is quite deducible from Moxey 's own statement that he was
making use of IMrs. Smith for some purpose in connection
with respondent. He testified that he visited the Palace and
called upon Mrs. A. Lloyd Smith to have the respondent see
some oil stock, although the latter says she did not want any
oil stock and did not buy any stock ; that she only went to the
hotel because Moxey wanted her to go down. He asked her
if she wanted to buy any oil stock; she told him "No," she
did not care for any oil stock; then he said, "Go down and
see her," and they went down, as he says, not to see the oil
stock exactly, but to have Mrs. Smith speak to her about some
oil stock she had for sale. Mrs. Phillips did not then know
Mrs. Smith and had no apparent occasion of her own to call
on her. It was Moxey that induced her to make this visit
on a pretext of purchasing or inspecting stock that she did
not want and had no intention of buying. Moxey did not
introduce ]\Irs. Phillips to Mrs. Smith ; on this point he was
positive in his testimony. Mrs. Smith talked to respondent
about the oil stock ; she explained all about it ; he could not
remember just what was said, but the substance of it was
that IMrs. Smith represented to respondent that she had some
very valuable oil stock which she had just secured from some-
body in Oakland, and that she would let Mrs. Dr. Turman
have these shares for what she paid for them.
According to Moxey 's account of this interview, these were
shares of oil stock. IMrs. Smith said, that she could sell for
$12 a share immediately on arriving in New York, whither
she was going, and she was anxious to have this Mrs. Dr.
Turman show her ability. Moxey did not think that Mrs.
Estate of Moxey. 401
Smith said she wanted money to go east with, but it was in-
ferred that she wanted Mrs. Turman to sell enough stock to
go to New York with her. This meeting, Moxey testified, was
brought about by a prearrangement between Mrs. Smith and
him made on the day before ; he said that Mrs. Smith was very
anxious to have Mrs. Turman go east with her and Moxey
could not purchase any stock at that time, but he told Mrs.
Smith that he had a friend who might purchase some oil stock,
as he had heard her speak of purchasing some from a party
(whose name he could not recall at the time of testifying),
and he would see this friend and bring her there, if she would
come and see the stock ; he would like Mrs. Smith to have a
talk with his friend, anyway, because he did not feel that he
could explain to her the matter as capably as could Mrs.
Smith ; so he said to the latter, and in that way the interview
came about. Moxey 's reason for this peculiar behavior, as
given by him, was that he was anxious to aid Mrs. Dr. Turman
in her ambition to go east with Mrs. Smith. He said that this
lady doctor came to his room and told him that she had a
friend who had some very valuable oil stock that she desired to
dispose of in part, and that it was stock that would more than
double itself in ten years, and she herself wanted to go east
with Mrs. Smith, but before she could do so she had to sell
some of this stock. Mrs. Turman said to him, "Moxey, I think
it is a good thing — in fact I know it is — and Mrs. Smith is
a friend of mine and she is reliable, and I would like to have
you go down and see her," and he agreed to do so; and he
went and had the conversation already related with Mrs.
Smith, in which he arranged to bring his friend to look at the
stock. Moxey repeated in his testimony that he told Mrs.
Smith that he could not himself purchase any stock, but as he
was anxious to help out ]\Irs. Dr. Turman, he had a friend who
might purchase some of it, that he had heard his friend speak
of buying oil stock and he had cautioned her against it, but
he told Mrs. Smith that he thought she had a good proposition
and he would have his lady friend come down and see her.
Mrs. Smith asked him when he would come and he told her
the next day ; she wanted to know in advance as, most of the
time, she would go around in her morning dress or -' ' mother-
Prob. Dec, Vol. II — 26
402 Coffey's Probate Decisions, Vol. 2.
hubbard," as she called it, and she desired to be dressed for
company when this lady should come. lie did not ask her
to wear any particular costume, but she said she would dress
up something the way she was then, and he said that was all
right. She was attired very nicely that day — had her jewels
on. He notified her prior to going down with respondent;
sent her a note of their approach.
In relation to Moxey's narrative of this episode, we must
consider the account of the same rendered by Mrs. Dr. Tur-
man, whom he introduced into it as the occasion for his
visit to Mrs. Lloyd Smith. Mrs. Turman testified that she
knew Mrs. Smith in the month of April, 1902, and that dur-
ing that month, or in May, she had a conversation with
Moxey concerning that lady who had oil stock to sell and
who wanted her to handle it. This conversation with Moxey
was in Hoover Hall, in the main office. Mrs. Turman told
him that she had a lady friend at the Palace Hotel who w^as
interested in stocks, and she herself thought they were
good, but as she was ignorant of such matters, she would
like to have him talk with this lady himself. Moxey said
he had a friend who had money and would possibly buy,
and he would bring this lady and introduce her to the other;
he did not mention the name at the time. Mrs. Turman
then arranged to introduce him first to Mrs. Smith, which
was done, and they had two meetings before his friend was
brought forward a day or two later. In the first interview
when Moxey was introduced to Mrs. Smith at the Palace he
said he had a friend who might buy oil stock and that he
would like to bring down the following day. After that
initial interview Mrs. Turman had another talk with INToxey
and another after his lady friend had called at the Palace
and had seen Mrs. Smith ; the talk was with regard to this
lady; she asked him what her name was and he said it was
Mrs. Gage ; he did not tell her it was Mrs. Phillips. At still
another talk Mrs. Turman asked Professor Moxey if this
lady was going to buy the stock and he answered "No";
that her lawyer advised her against it. Several weeks later
on, some time in the early part of June, 1902, another talk
was had with him and Mrs. Turman said to Moxey, "Pro-
Estate of Moxey. 403
fessor, why this was Mrs. Phillips that you took to the
Palace Hotel." Mrs. Turman had seen the name on a pos-
tal card that Moxey handed her to read. Moxey laugh-
ingly said the postal card was something regarding some
property and he would have more than that, or something in
a boyish way, Mrs. Turman did not remember the words
exactly; he admitted that it was Mrs. Phillips and when
asked why he did not say so in the first place, he just
laughed. Prior to his lady friend going down to the
Palace, Moxey told Mrs. Turman to ask Mrs. Smith to wear
her finest dress and to make the best appearance possible,
and also to make it appear to his lady friend that she
wanted him to travel east with her as a business man, and
Mrs. Turman asked him why he wanted Mrs. Smith to do
that, and he replied that he simply wanted to make an im-
pression upon this elderly lady, this Mrs. Gage, he wanted
to make her a little jealous, or something of that sort, in
substance, was what he said. Professor Moxey denied in
toto that he had ever told Mrs. Dr. Turman that he had
taken Mrs. Phillips to see Mrs. Smith, or that he ever made
any communication to her concerning his business.
This episodical phase of the controversy as to the com-
petency of respondent may be closed with a summary of
the testimony of Mrs. A. Lloyd Smith, who was the central
figure in the proceedings for a brief space. Mrs. Adelaide
Lloyd Smith called San Francisco her home, when she de-
poned at Seattle, where she was found with her trunk
packed ready to go east ; she was not living anywhere then,
but traveling, and just then staying in the northern city,
detained on account of the deposition. Mrs. Smith said that
she had stopped at the Palace Hotel in April and May, 1902,
for about four weeks, and she had met Mrs. Moxey there
on the 12th or 14th of April; it was from the 10th to the
15th, between these last dates in 1902; she was introduced
by Mrs. Dr. Turman ; it was Easter morning and Mrs. Smith
had not met Dr. Turman for about a year or a year and a
half. Mrs. Smith told the doctor that she intended to go
east and was waiting to obtain the services of some one to
accompany her as secretary and business manager, and Dr.
404 Coffey's Probate Decisions, Vol. 2.
Turman said she would like to act in that capacity, but she
did not have the means to procure an outfit, and Mrs. Smith
offered to obtain some stocks for her to sell and thus raise
the wherewithal ; and she then secured stocks at a certain
figure and told Dr. Turman to make the effort to sell on a
commission ; the latter said she would bring some people to
see her in the evening, and she brought some three or four
persons, among them a gentleman w^hom she introduced as
Professor Moxey ; she did not bring him ; she was waiting
for him and he came there by her appointment ; this was in
the Palace parlor; the first time was in the evening at about
9 o'clock; he was introduced by her and she asked Mrs. Smith
to tell him about different investments in which she was in-
terested; he seemed pleased with them, but said he did not
have any money to invest just then, but he might have some
friends who would be willing. Mrs. Smith told him that there
would be a commission in it for him, and he said he did not
want any, as he was doing this for Mrs. Turman 's sake, so
she could go east with her ; then INIrs. Turman said in case
that she could not go, in a joking way, it would be nice to
have Professor Moxey as her business manager. Mrs. Turman
said that he was a very good business man and would be a
great help ; that he was an honest man, she knew him and
she worked in his school — in fact, she gave him a very high
recommendation. Moxey was present but made no remark
on this point ; he said that he would call again and bring a
lady and would let her know in advance at what hour; he
then bade "good evening" and went away. On the following
morning, when she arose, Mrs. Smith found a note under her
door — it was written in lead pencil — from Mr. INIoxey, in effect
saying that he would bring a lady at 3 o'clock that afternoon
to see her, and telling Mrs. Smith to wear her prettiest gown
and all her diamonds, and particularly to praise him for his
business ability; this note was signed, "Yours, Moxey," which
was rather peculiar, as she had never met him before the
previous evening; on account of this singular subscription
from a stranger she laughed about it and showed it to Mrs.
Turman, who came in .shortly afterward while she was dress-
ing. Mrs. Smith did not preserve this missive from Mr.
Moxey ; she destroyed it after showing it to Mrs. Turman and
Estate of INIoxey. 405
to her own lawyer and commenting on the oddity of the end-
ing from a man whom she had never met, except as stated.
Subsequently, and on the same day, and before he brought
this lady to the hotel, some one knocked at her door, while she
was combing her hair, aud when she opened the door Moxey
was standing there in his bicycle suit ; he had knickerbockers
on, and he said he just ran up for a few minutes to explain
about the note ; he said that the reason why he asked her to
wear her prettiest gown and all her diamonds and to praise
him was that this lady friend had $10,000 to invest, and he
wanted this lady to realize that Mrs. Smith was a woman of
wealth, so that his friend would be more favorably impressed,
and he also desired that she should say that she would be
pleased to have his services as her secretary and business man-
ager when she went east ; and that she thought highly of his
ability. Mrs. Smith made him this promise. Professor
Moxe}^ in his testimony, denied that, upon this occasion, he
wore a bicycle suit or knickerbockers; he says he had on his
ordinary dress.
In the afternoon, at about 3 o'clock, Moxey came again and
brought a lady with him, whom he introduced to her as Mrs.
Gage. Mrs. Smith never saw the person before nor after,
and he said that he wanted her to speak to Mrs. Gage about
any investment that she might have to make as she had some
money to invest. Mrs. Gage, as Moxey called her at the time,
was present when this remark was made; then he sat down
to one side and did not have any more to say during the
interview, and Mrs. Smith says she proceeded to present the
proposition for investment, and this Mrs. Gage said she would
consider the matter and would let her know the next day
whether she would invest or not, and then she said she would
rely upon Mr. Moxey 's advice, because she thought he was a
fine business man and that he had good judgment. Mrs. Gage
uttered this compliment herself, to which Mrs. Smith re-
sponded, "Yes," and that she herself would be very glad to
engage Mr. Moxey 's services as her own business adviser,
as she thought that he was honest and energetic, which he did
seem to her to be, and to that extent she spoke in good faith ;
and she added that she would be pleased to have him go east
with her in that capacity, and Mrs. Smith turned to Mr.
406 Coffey's Probate Decisions, Vol. 2.
Moxey and said: "But you could not go, could you, Mr.
Moxey?" And he answered "No," that on account of his
school, and as she was going so soon, it would be impossible
for him to accept such an offer, and he was sorry he could
not. Mrs. Smith told them that she had to start in three
days. In her closing remarks, deponent volunteered the re-
mark that the two persons did not act like lovers; neither
so acted ; she said it was a business transaction. However
valuable the opinion of Mrs. Smith may be as to the conduct
of lovers in the presence of a stranger, her evidence is suffi-
cient to show that she herself carried out a programme in
concert with Moxey, who designed it to impress and impose
upon Mrs. Phillips, the respondent here, who was induced
by him to assume as a surname her prenomen, thus deceiving
as to her identity another person, and that other person in
turn, in collusion with Moxey, and in conformity with his
request, made in writing and orally, undertook to assure re-
spondent that she had in mind to hire Moxey as a manager
for her and to take him east, whereas she had no such inten-
tion, as she had already indicated to Mrs. Turman that she did
not want a man, but a woman secretary ; in praising Moxey
to respondent Mrs. Smith said, somewhat significantly, that
on that point she "spoke in good faith." The remainder of
the performance, it is to be inferred, was but pretense, and
the acting of the play arranged between herself and him.
Mrs. Smith added that she thought he was an honest and an
energetic man, which, considering her limited and peculiar
acquaintance and experience with him, was a tribute to his
character serviceable in estimating the value of her judg-
ment generally.
Mrs. Smith's own impression as to the respondent and
Moxey M'^as that she did not think they had ten cents ; she
thought this woman was poor and did not have any money;
she was dressed very plainly and she looked as if she were a
book agent or something like that ; withal she impressed her
as a good, sound business woman ; she did all the business
with her. It was purely a business deal, and the colloquy
was entirely between respondent and Mrs. Smith, Moxey
taking no part in this conversation, but sitting apart. This
business deal did not amount to anything, for the lady left,
Estate of Moxey. 407
saying she would advise with Moxey, in whom she had im-
plicit confidence, and neither ever called upon her again,
and she made up her mind there was nothing to be made
out of them, as they had no means to invest ; in other words,
Mrs. Smith concluded she had been herself lured into an
interview to foster some design of Moxey. Mrs. Smith's in-
terest in the matter was purely to assist Mrs. Turman and
to promote the sale of stock for that person's benefit, as she
herself was not soliciting orders or seeking customers, being
a woman of independent inherited means, and not a stock
jobber ; she sometimes, however, assisted others to invest their
money. Mrs. Smith denied that she was influenced by the
note that Moxey wrote her or by his verbal request; but it
does appear from her evidence that she executed the scheme
devised by him to the very letter, and that in this so-called
interview with respondent Mvs. Smith did all, or nearly all,
the talking in exploiting her stock project, while the lady
who was there under a feigned name said next to nothing,
and finally, "Good business woman, of sound common sense,"
as she is described by deponent, she departed avowing her
dependence on Moxey.
A queer business deal this, and surely a strange basis for a
judgment of commercial competency. The fact is too plain
for paltering, that throughout this incident respondent w^as
the dupe of Moxey, and Mrs. Smith was used, more or less
unwittingly, to act as an accomplice, he playing each against
the other. If this incident is to be taken as a test of respond-
ent 's memory, will, understanding, power of concentration,
reasoning capacity, coherence and clearness of explanation, it
fails in every particular to exemplify these elements of com-
petency. She had no memory whatever on the witness-stand
of Mrs. Smith or the interview until Moxey, before she again
came to testify, prompted her, and readily, at his suggestion,
she recited as if by rote what he told her of the occurrence.
Moxey furnished her with a memory as to all the particulars
that he wanted her to recollect; even then, it appears she
had no volitional power, but went to see a woman whom she
did not know, to talk about buying stocks that she did not
want ; all in obedience to the masterful spirit of a man who
had secured complete dominion over such measure of mind as
408 Coffey's Probate Decisions, Vol. 2.
she retained. As to her power ol concentration, it seems that
although ]\Irs. Smith dilated upon oil stocks, with a view to
interesting her, for the space of about forty minutes, respond-
ent could not recall what it was all about, and was not im-
pressed and never thought again of the subject, or of its
voluble expositor; she did not understand it, could not reason
about it ; nor was she able even under tutelage to make any
coherent or clear explanation of the affair; the whole matter
was a muddle to her ; and yet it was an incident of importance
that must have made a profound impression at the time and
had left a durable mark upon her memory, if she possessed
the attributes and qualities of mind claimed for her by counsel.
The marriage of respondent to Moxey followed hard upon
the execution of the Boston deed ; with all her worldly goods
she him endowed before the knot was tied, and they hied them,
each separately, to a country town fifty miles from their legal
residence to be married by a squire in presence of witnesses
who were strangers to them. When they returned they spent
the night at his room in the Hoover hall. She swears they
began to live together on the first night of the marriage, July
14, 1902; that a few days after their marriage her husband
and she went to the Manhattan Hotel, on Market street, and
remained there until October 1, 1902, when they went east ;
they went to the hotel August 1st, and between the date of
marriage and that day, the 1st of August, she used to go
down to her husband's room at the Hoover hall, and they lived
continuously together except while he was at the redwoods.
During the time that she testifies she was cohabiting with him
the record shows that she was ostensibly living in July, 1902,
at the Pendleton private hotel, and beginning with August
1, 1902, at the Manhattan, at each place known by the name
of Mrs. Phillips, and at the latter registering in her own hand,
"Mrs. Gage Phillips, Boston, Mass.," assigned to rooml03-B,
the latter letter meaning "breakfast," and the proprietor tes-
tified that two or three weeks later she interpolated "Moxey"
above the name ' ' Phillips. ' ' Moxey never boarded during this
period in the house, nor registered there, nor spent a night
there as a guest, unless he did so unknown to the proprietor,
but he took his meals at the St. Nicholas and roomed at the
Hoover hall, across the street, opposite the hotel, and she did
Estate of Moxey. 409
not accompany him to his meals there, although he says that
they ate together sometimes in restaurants.
Moxey swore that during the whole of the time after their
marriage while he was stopping at the Manhattan he stayed
there with her, slept there, but did not eat there ; he did not
register, nor state to the hotel people that he was occupying
a room there, nor speak to anyone in that hotel; he would
go in there after class hours, about 10 o'clock, or later, and
leave at 8 or 9 in the morning. She was not known by any
other name than Phillips at the hotel nor at the Hoover hall,
nor anywhere else, nor did he live with her where it was
openly known that she w^as his wife, nor did he publicly ac-
knowledge her as such, prior to the institution of these pro-
ceedings, when he was forced to come out into the open ; be-
fore that only Hoover knew of the fact and, perhaps, one or
two others ; he could not name one other with certainty. How
long this secrecy would have continued we may conjecture.
He had all her available property and her good name was in
his keeping, which he was, by his furtive visits to her sleeping
apartment after nightfall, emerging therefrom each morning,
endangering, while he was indefinitely postponing the publi-
cation of her lawful relations to him.
Marriage is in itself such an honorable institution that the
chief magistrate of this republic denounces the man or woman
who deliberately avoids it as a criminal against the race, who
should be an object of contemptuous abhorrence by all healthy
people. Why, then, should Moxey, the man, subject this re-
spondent, the woman, who had given everything of value
she possessed, to the reproach of clandestinely contracting
and then conniving at the concealment of so sacred an obliga-
tion and so dignified a relation ? Was it not due to her name
and fame, to every sentiment of honor and sense of propriety,
that it should be made known at once and universally? The
first person, and the only person, to whom it was revealed
was Hoover. Not one of the other familiar friends of respond-
ent was informed of it until the exposure of the lawsuit. No
sound reason has been given for the secrecy characterizing
this marriage. Naturally, the woman, if free to exert her
will, would be proud to proclaim her change of status, if it
were true, as asserted in this case, that it was a love match.
410 Coffey's Probate Decisions, Vol. 2.
But respondent says that she did not make public the fact of
her marriage, but kept it a secret for some time, and that
as late as the last of July, 1902, she went down to San Jose
to look into the records of marriage licenses; her cousin was
with her, but she had not told that lady of the marriage,
making the trip on some other pretense. Why she wanted
to inspect the license, unless she distrusted the legality of the
ceremony, is not clearly explained, for she testified that she
saw the marriage license on the day of marriage and had
told Mr. Moxey that her place of residence was Los Angeles;
that it did not make any difference what part of California
was put down, as she lived everywhere, and he might as well
insert the southern city as anj^ other; which, considering the
migratory habits of the lady, was a correct statement of her
domiciliary status, from her point of view ; but it does not
satisfy the mind of the investigator who has a right to know
why these persons of lawful age, free from parental control or
surveillance, should run away from where they were well
known, and where the husband, at least, had a legal domicile,
and engage clandestinely in marriage. If he were honest
in his intentions and faithful in his purpose, and reciprocated
her ardent avowals of affection, why did he shirk and shun
publicity and go covertly to the country to consummate the
contract? "Why did he not voluntarily and before the com-
pulsion of litigation extorted his secret, and in sight of men
and women, acknowledge this lady to be his true wife of whon>
he would never feel ashamed? She had surrendered herself
in body, soul and estate, had given into his hands and power
her life and fortune and honor, and he professed to love her,
and had described their engagement as a love match, as a
match founded upon love into which convenience or money
considerations do not enter, accepting as his own the dic-
tionary definition, and asserting that he had no selfish or
sordid sentiment and that his wife was similarly attached to
him. This chivalric claim on his part is somewhat salted
by the circumstances of the case at the time of the marriage,
for then he had acquired all her material wealth, so far as
it was subject to her disposition, and she was poor, except
in the abundance of his plighted love, in which there was no
taint of meanness or base alloy. His own conduct, however.
Estate of Moxey. 411
casts some doubt upon his assertion of unselfish devotion to
his bride, and gives countenance to the charge that the mar-
riage was mercenary on his part, and the ceremony contrived
as a clincher to secure his hold upon the fortune he had by
artful and crafty devices secured from her.
Such marriages are abhorred in equity, and not favored
otherwise where the surroundings point to an unworthj^ mo-
tive and the conduct of the party who is pecuniarily benefited
suggests insincerity or bad faith, and indicate that he has taken
an undue advantage of the other's weakness of will or confi-
dence in him, springing from intimacy of relation.
Censorious comment in a judicial opinion is deprecable, un-
less the censure is called for imperatively by the facts, and
when so demanded no court should refuse to respond to the
challenge of its duty and impress its stamp of condemnation
upon the conduct of the male party to this marriage in sub-
jecting the female, whom he said he loved, to the hazard she
ran while receiving him privily in her bedroom in a hotel
where she was registered and known as a single woman. The
respondent, always anxious, apparently, to shield her be-
loved, says that he did not eat at the Manhattan because he
did not like the proprietor; but he came there to sleep.
Why he did not like the proprietor does not appear; but it
might be surmised if the worthy boniface found him slipping
out of her room in the morning, his dislike would have been
intensified. If his motive were not mercenary and merely to
fasten his grip upon her wealth by keeping her mind and will
in servient subjection until he should have completely accom-
plished his purpose of acquisition, why did he live this life
of duplicity and deception and impose upon her, whom he
had promised to love, cherish and protect, the ignominy and
humiliation of being suspected as a wanton or detected as a
deceiver. She was an honest woman, and obeying her im-
pulse, if she had had control of her will, could never have
submitted to this condition of concealment and deception ; but
"because she loved him" and confided in him absolutely, she
was prevailed upon to act a lie every day until the climax
came. On his part every legitimate inducement would seem
to spur him to immediate announcement of an event so fraught
with his own welfare and her happiness ; an event which ex-
412 Coffey's Probate Decisions, Vol. 2.
alted him from the depression of poverty to the height of
opulence; which rescued him from the hard necessity of
trudging about the country seeking employment, as had been
his wont, and elevated him to a plane of power and wealth —
no longer a hireling but a master. It is unaccountable, upon
any rational and honest hypothesis, why this man acted in
this manner; but he admits that he did keep the marriage a
secret, and she says, "I did not tell a soul, not a person,
not even my own cousin, of the marriage." This cousin was
Mrs. Hamilton, with whom, as has been seen, she went to San
Jose to search the marriage license records, about two weeks
after the event, and to whom she made no communication
of the real object of her journey, but led her to believe she
was still a single woman. In reality, it may be safely said
that these parties did not from the first cohabit as man and
wife. While they may have been ceremonially united, they
failed to follow up that rite by living together as husband and
wife and affording public evidence of that relation.
This was their duty to themselves and their obligation to
the State. So far as the immediate interest involved is con-
cerned, it matters little compared with the interests of or-
ganized society; for marriage is more than a contract — it is
a status ; it is an institution of society and its foundation ; it
does not come from society, but contrariwise ; it is the parent
of society, and it is supremely important that its stability
shall be secured, and that its contraction should be surrounded
with safeguards and its sanctity upheld; and every sol-
emnization of marriage should be in the face of the public ;
there should be no secrecy either in ceremony or in connubia-
tion ; and, in this case, there is no excuse, morally or legally,
for a variation from the rule thus stated and approved by the
courts of this land and every civilized country. The paltry
subterfuge that this young husband did not eat with his
elderly wife at the Manhattan Hotel because the keeper was
obnoxioiLs may have deceived the simple soul of the trusting
spouse, but it cannot be accepted as sufficient by anyone
less credulous and confiding. Moxey says that he frequently
took meals at the Palace with her and that they both liked
the living at that hotel. Why, then, did he not take up his
abode there with her? Certainly the tariff was not beyond
Estate of Moxey. 413
his income as derived from her bounty, and the associations
were presumably as agreeable as at any of the other hotels
and boarding-houses where she and he were sojourning. It
is no strained inference to conclude that he had no serious
intention of permanent cohabitation with respondent.
In attempting to account for the transfer of her property
to Moxey, it is argued that, in addition to her affection for
him, she was alienated from^ her daughter because of the lat-
ter 's conduct, and that the disposition of this only child is
shown to be unfilial and to justify her mother's action; that
this unnatural trait is exhibited in the deposition of the
daughter taken in Boston, containing reflections upon her
mother. It is true that the mother's lack of judgment and
the fact that she was always considered peculiar and odd
about home, and the incident of an apparent attempt at
suicide, when the daughter was a child of six — that is, about
twenty-one years ago — at the time the respondent threw her-
self out of her carriage on the Floating bridge into the river,
when the coachman pulled her out by the hair of her head, and
the visits to the sanitarium, where 1^er mother was confined
for five years, and certain instances of improvident and aim-
less purchases,' and other incidents manifesting strange
caprices and inconsistencies and eccentric conduct at meals,
which in a woman of almost abstemious habits were hard to
reconcile with reason, are dwelt upon in the deposition, yet
there is nothing intemperate in the recital of the deponent, and
no adequate warrant for accusing her of unnatural feelings or
of malice toward her mother. So far as her agency in the
promotion of this proceeding is concerned, this' court conceives
that it was her bounden duty, for her own sake and that of her
child, to set on foot an investigation as to the facts in the
case and the condition of her mother's mind and the char-
acter of the people constituting her environment when she
parted with all her possessions and married the man who
had previously absorbed her property.
In the course of her testimony the respondent stated that it
was not through love or care for her that this inquest was in-
stituted, but that the object was simply to secure her property
for the ultimate benefit and enjoyment of her daughter, as her
sole heir. If the daughter were actuated alone by a motive
414 Coffey's Probate Decisions, Vol. 2.
of self-interest, it was her duty to protect her expectant
patrimony from waste or spoliation throug^h her mother's im-
becility, or through the fraud of a stranger who had obtruded
into her heritage ; this was her duty to her owti child ; but,
moreover, it was her duty to her mother herself to save her
from the consequences of what she had reason to believe was
a conspiracy of irresponsible and unconscionable knaves.
Whether she was just in her suspicions or not, is not to the
purpose; she may have proceeded upon false or insufficient
premises ; but, apart from any sentimental considerations, it
was her imperative obligation, devolved upon her by nature
and by law, to prosecute this investigation and by every legal
means to ferret out the facts and establish the truth. Respond-
ent's attitude of antagonism toward her daughter is a matter
of recent revelation and based upon an assumption that the
latter has been guilty of acts and utterances manifesting
unfilial feeling and selfish design, which imputations are not
supported by the record ; but the correspondent with her child
shows that the mother had until very lately not harbored
such delusion. *
Respondent in her letters to her daughter expressed herself
in an affectionate strain toward both the son in law, Mande-
ville, and his wife, whose former husband was not then so well
regarded as now by the mother in law. These letters may
be read in connection with the testimony of respondent, and
tend to sustain the theory that her present state of mind
was either the result of a delusion developed after this con-
troversy began, or she consciously falsified in her explanation
of her feelings toward her daughter, and that this was due
to the malign influence unduly exercised over her mind by
JMoxey ; and it is, in itself, evidence of mental weakness. It
appears that, prior to these proceedings, she had entertained
strong sentiments of regard for Mandeville and wife, and no
great liking for the latter 's first husband, which is shown by
an extract from one of those letters, in which she advises her
daughter of her fear that Fred Olsson might kill Harry in
case they attempted to secure the child Thorwell, the son of
the first marriage, from him. Respondent in this letter says
to her daughter: "You and Harry live for each other; you
have a pretty little home and Harry loves you. Now live
Estate of Moxey. 415
for yourself and Harry." In view of this evidence of in-
terest and affection, respondent's present animosity is not to
be treated as her spontaneous thought, much less her rational
judgment, but is the offspring and echo of some one interested
in estranging mother and child. According to the authorities,
sudden and groundless suspicion of the affection and fidelity
of tried and trusted relatives and friends is a common
symptom of unsoundness of mind ; and so, too, are hastily con-
ceived affections for and confidences in mere strangers and
newly made acquaintances. These remarks apply to this case.
As to these newly made acquaintances, counsel for respond-
ent remarks that the conduct of Hoover wath regard to the
Boston deed was fair and open, and that the transaction in
the notary's office was above board. It seems to this court
that the testimony of the notary bears all the earmarks and
indicia of truth, and his recital of the occurrences in his
office is credible. Professor Hoover did not impress the court
as a frank and candid narrator of incidents and events in
which he was so intimately concerned as to call for the utmost
fairness and openness. The court has no concern with his
career, except as it is connected with this case, but his failure
to recollect at first so important a matter as how he came to
be admitted to the bar and his confusion of memory or
knowledge as to state and federal courts in the place of his
admission, and the obscurity surrounding that incident in
his life, occurring so recently as May 5, 1898, which took place
without any previous examination as to qualifications in any
court is, to say the least, remarkable in a man holding so many
iegrees and diplomas which should import the possession of
understanding and memory more than is allotted to common
mortals; but his testimony generally was not characterized
by candor, nor by ordinary powers of recollection.
His own account of the fabrication of the Boston deed is
neither clear nor consistent with itself, nor with the statements
of the others connected with it ; it is in utter and irreconcilable
conflict with the account of the notary, who took the acknowl-
edgment, as to what occurred in that office. Although Hoover
secured a blank from Gates, he does not remember where he
obtained it; he does not know why he obtained a warranty
deed ; he failed totally to recall where he wrote out the deed,
416 Coffey's Probate Decisions, Vol. 2.
The notary testified that it was filled in his presence in that
office by Hoover.
Other items might be cited to show that he was either
evasive in his recital or infirm in his memory. He was effu-
sive in his conmient upon the competency of respondent,
who was one of the brij2:htest women he ever knew, and thor-
oughly competent, in his opinion, yet he says she told him
twenty times, at least, on the morning after the execution of
the instrument, and in the notary's presence, to be sure and
fill out the deed before placing it on record. He dwells upon
the frequency of this admonition, as if it were proof of her
great intelligence ; but there is an incident to be explained
at this point: The deed was executed on July 14th, at about
noon. Moxey gave Hoover the instrument and he says he
placed it among that person's papers; but on that very even-
ing Hoover was to take the train for the east ; he said he had
been preparing to go ever since November, 1901, but he was
not ready until this date ; he missed the train ; whether or not
he had the deed in his pocket which she had admonished him
about he does not say ; but he succeeded in starting next day,
the 15th, with fresh cautions from her not to forget to fill
it out before recording and to adopt an assumed name in
Boston. The story of Hoover's adventures in Boston, as told
by himself, is sufficient to show that he has no high estima-
tion of the virtue of veracity ; it was not, as counsel for re-
spondent argues, fair and open ; it was all through the reverse ;
it was disingenuous and deceitful ; and his own statements on
the stand impressed the court unfavorably as to his candor and
directness. He admits that he was evasive and equivocating
in his conversation with Phillips, the nephew of respondent ;
he evaded giving any name to him, and told a falsehood
as to the purpose for which he pretended to want the Summer
street stores; he gave a false name to the clerk, Glancy,
in the recorder's office; he hid himself in a by-street to keep
out of view of respondent's relatives; in his evidence he in-
vents a man named "Young," who was his guide around the
city of Boston, and whose description in almost every respect
corresponds to his own — his counterpart or double, as it were.
Glancy described the man, who gave him the paper and took
it away, to fit Hoover, and he says there was only one man,
Estate of Moxey. 417
and he gave the name of Young; as to this there can be no
doubt that Hoover prevaricated in his testimony. Hoover
disclaims interest in this case, yet his activity is abnormal in
assisting the cause of his pupil teacher Moxey, and it is un-
deniable from the inception of the Boston deed, whatever
doubt charity may suggest as to his connection with the
Mendocino matter. In the subsequent proceedings, if he was
interested no more than he declares, then he was gratuitously
part and parcel of the entire scheme from beginning to end.
Many minor matters might be alluded to, to connect Hoover
and Moxey with the common design to fleece respondent and
to demonstrate that they were acting in concert, but this
opinion has attained to dimensions that call for curtailment,
necessary as it has been to deal in detail with the more im-
portant features of the case.
There is but one topic left, and that is what is usually
termed opinion evidence, the least worthy, in the estim.ation
of those who are engaged in the examination of witnesses and
who are charged with the duty of weighing and determining
their testimony, of any species of proof. The counsel for re-
spondent claims credit for the class of witnesses produced
by her, intelligent and responsible citizens, such as Val.
Schmidt, Henry Boyle, Mrs. Pendleton, George A. Woolrich,
banker; Adolph Hirschman, jeweler; Mrs. Irene D. Reeves,
and others of equally high character, all of whom agree in
their conclusion as to her competency ; and counsel contrasts
these ladies and gentlemen with the astrologers, palmists,
fortune-tellers, bellboys and other local habitants who had
testified to peculiarities and acts of this lady which to them
signified incompetency. Of course not all of the witnesses
who testified that they thought respondent was incompetent
were subject to this invidious and diminishing discrimination,
for some were quite up to the standard raised by counsel,
such as Mr. Carothers, of Ukiah, a lawyer of good standing,
and long and intimately acquainted with respondent, knowing •
her professionally and socially for years ; Mr. Horr, of the
same place, and others here and there whose observations
and opinions are entitled to equal consideration with the very
worthy persons named ; but no matter how numerous on either
Prob. Dec, Vol. II — 27
418 Coffey's Probate Decisions, Vol. 2.
side such witnesses may be, experience teaches this court they
may be produced by the score for and against the issue,
all honestly testifying to contrary impressions concerning the
same person whose competency is in question, they cannot
change the facts brought out in the course of this long and
complex controversy. Such opinions courts receive in evi-
dence and may be taken into consideration, but they are not
entitled to as much weight as facts, especially where there
is a conflict between them, for when a fact is established it
is a fact and cannot be overcome, while an opinion is but an
opinion, and it may be true or false in its inference; and, as
we have seen by the testimony of this class of witnesses, their
opinions are often diametrically opposed even when based
upon the same premises ; and so to introduce a witness here
to give an opinion that respondent is competent, and to ask
the court to accept it as against the conduct of that lady, is
to make too violent a demand of one whose duty it is to decide
according to law and facts and not substitute for his judgment
the opinion of any other person, however intelligent or honest
in intent.
The claim in this case is that the respondent is incompetent ;
that she is incapable of taking care of herself and her prop-
erty, and likely to be imposed upon by artful and designing
persons, and that claim is, in the judgment of this court, fully
made out.
Petition granted.
FINDINGS.
The above-entitled cause, having been regularly tried before
the court, sitting without a jury, no jury having been de-
manded by either of the parties thereto, upon the verified
petition of Harry Lester Mandeville, hereinafter designated as
the plaintiff, for the appointment of a guardian of the person
and estate of the above-named Gage H. Phillips, also known
as Gage H. Moxey, as an incompetent person, hereinafter
designated as the defendant, and upon the answer of said
defendant to said petition, the said plaintiff appearing by
his counsel, Messrs. Bishop, Wheeler & Hoefler, L. M. Hoefler,
William Rix, E. M. Rea and C. W. Cobb, and the said defend-
ant having been produced at the said trial and hearing and
Estate of Moxey. 419
having appeared personally, and by her counsel, Messrs. Tru-
man and Oliver and S. V. Costello, and the court having
heard the said amended petition and said answer thereto,
as well as all the evidence introduced by the said plaintiff and
defendant, respectively, in said cause, and the arguments of
their counsel, and having duly considered the said amended
petition and answer and the said evidence and arguments,
and being fully advised in the premises, now here makes and
files its findings of fact, conclusions of law and decision in
writing in said cause as follows :
FINDINGS OF FACT.
The said court finds the facts in said cause to be :
1. That the said plaintiff, Harry Lester Mandeville, is the
son in law of the said defendant, Gage H. Phillips, also known
as Gage H. Moxey.
2. That the said defendant. Gage 11. Phillips, also known as
Gage H. Moxey, is, and at all the times mentioned in these
findings was an incompetent person, over the age of fifty-six
(56) years, and residing at and in the city and county of San
Francisco, and mentally incompetent to manage her property,
and incapable of taking care of herself and of managing her
property, and is, and at all of said times was, by reason of
disease and weakness of mind, unable unassisted to prop-
erly manage and care for herself or her property, and that,
by reason thereof, she, the said defendant. Gage H. Phillips,
also known as Gage H. Moxey, would be, and at all the times
aforesaid was, and now is, likely to be deceived and imposed
upon by artful and designing persons, and in truth has been
deceived and imposed upon by artful and designing persons as
in findings 3, 4, 5, 6 and 7 herein more particularly set
forth.
3. That some time prior to the month of May, 1902, the
said defendant being then the owner in her own right of
certain real property situated in the county of Mendocino,
in the state of California, consisting of about two thousand
four hundred (2,400) acres of redwood timber, worth about
twenty-four thousand dollars ($24,000) ; and also of a parcel
of land in the city of Boston, in the state of Massachusetts,
upon which was erected a four-story granite front store, and
420 Coffey's Probate Decisions, Vol. 2.
known as Nos. 122, 124 and 126 on Summer street, Boston,
of the value of two hundred thousand ($200,000) dollars, was
residing in the city and county of San Francisco in said state
of California, as an unmarried woman, being the divorced
wife of one Harrison F. Hawkes.
4. That at the time last aforesaid, to wit, some time prior to
the month of May, 1902, one John D. Hoover, was conducting
in the said city and county of San Francisco, the Hoover
University of Physical Culture, and had in his employ one
Oliver N. ]\Ioxey, an unmarried man of the age of twenty-
nine (29) years, or thereabouts; that the said Hoover and the
said Moxey then and there conducted classes for the teaching
(if physical culture in said city and county of San Francisco,
in the university aforesaid, and were professors thereof, teach-
ing pupils therein, and that the said defendant at said time
last mentioned, to wit, some time prior to the month of May,
1902, began to take lessons in physical culture in the said
Hoover University of Physical Culture, and thereby then
and there met and formed the acquaintance of the said John
D. Hoover and the said Oliver N. Moxey.
5. That the said John D. Hoover and the said Oliver N.
Moxey, after the said defendant had formed their acquaintance
as aforesaid, learning of her (the defendant's) mental weak-
ness aforesaid, and learning also that she (the said defendant)
was possessed of large means and was the owner of the real
property in finding 3 herein described, with the design and
intent of deceiving and imposing upon the said defendant and
of acquiring her (the said defendant's) real property, and of
defrauding her out of the same, and intriguing, contriving
and designing to take undue and unlawful advantage of the
said mental weakness of the said defendant, and to defraud
her (the said defendant) out of her said property, as afore-
said, confederated and combined together to effect their said
purpose, and in carrying out their said scheme and design
proceeded as follows, to wit : That it was agreed upon be-
tween them, the said John D. Hoover and the said Oliver
N. Moxey, that the said Oliver N. Moxey should pretend to
pay his attention to the said defendant with the view of mar-
riage, and that he, the said Oliver N. Moxey, should induce
her, the said defendant, to voluntarily convey to him, the said
Estate op Moxey. 421
Oliver N. Moxey, as a gift, the real property aforesaid ; that,
thereafter, to wit, on or about the twenty-third day of May,
1902, the said Oliver N. Moxey, having become engaged to
marry the said defendant, induced and persuaded her, the
said defendant, to deed over to him, the said Oliver N. Moxey,
without consideration, the said real property situated in
Mendocino county, California, as in finding 3 herein set forth,
and thereupon and on the said twenty-third day of May, 1902,
he, the said Oliver N. Moxey, caused to be prepared a certain
deed of that date, conveying to him, the said Oliver N. Moxey,
the said last-mentioned property for the purported considera-
tion of ten dollars ($10), gold coin of the United States;
that in fact no money or other good or valuable consideration
whatever passed from the said Oliver N. Moxey to the said de-
fendant; that the said defendant, acting under the influence
and control of the said John D. Hoover and the said Oliver
N. Moxey, and not otherwise, then and there signed and
acknowledged said deed of said last-mentioned premises; that
thereupon the said Oliver N. Moxey caused said deed to
be recorded in the office of the county recorder of said Mendo-
cino county, and thereafter exercised full control over the said
property so conveyed to him by said deed, and shortly there-
after mortgaged the same for the sum of five thousand dollars
($5,000), gold coin of the United States, which he, the said
Oliver N. Moxey, appropriated to his own uses; that there-
after, in further pursuance of said scheme and conspiracy
to defraud the said defendant, the said John D. Hoover, con-
federating and combining with the said Moxey as aforesaid,
prepared in his, the said John D. Hoover's, own hand a deed
of said Boston property, described in said finding 3, purport-
ing to convey said last-mentioned property from the said de-
fendant to the said Oliver N. Moxey, in consideration of the
sum of twenty dollars ($20), in gold coin of the United States,
but, in truth, no good or valuable consideration whatever
passed from the said Oliver N. Moxey to the said defendant ;
that with the said deed so prepared by the said John D.
Hoover, he, the said John D. Hoover, accompanied the said
Oliver N. Moxey and the said defendant to the office of .a
notary public at and in the said city and county of San
Francisco, and thereupon the said defendant, acting under the
422 Coffey's Probate Decisions, Vol. 2.
influence and control of the said John D. Hoover and the said
Oliver N. Moxey, and not otherwise, sig^ned and acknowledged
said last-mentioned deed to said Boston property, and deliv-
ered to said John D. Hoover the said deed so signed and
acknowledged ; that thereafter on the same day, the said
Oliver N. Moxey accompanied the said defendant to the city
of San Jose in said state of California, and was then and there
married before a justice of the peace in said city of San Jose,
solely with the intent on the part of the said Oliver N. IMoxey,
acting in conjunction with the said John D. Hoover, of per-
fecting the scheme, plan and design theretofore formed be-
tween the said Oliver N. Moxey and the said John D. Hoover
for the purpose of obtaining the property of the said de-
fendant, described in said finding 3, and of defrauding her,
the said defendant, of her said property as aforesaid, which
said property constituted the entire property of said defend-
ant subject to her control ; that after the marriage aforesaid,
the said John D. Hoover took said last-mentioned deed to the
said city of Boston and caused the same to be there recorded
in the public records.
6. That at all times after the said defendant formed the ac-
quaintance of the said John D. Hoover and the said Oliver
N. Moxey, as heretofore in these findings set forth, the said
John D. Hoover actively promoted the pretended suit of the
said Oliver N. Moxey for the hand of the said defendant by
impressing upon her, the said defendant, the great love and
affection which the said Oliver N. Moxey professed for her,
the said defendant and in furtherance of the conspiracy,
and to carry out the design and purpose of the said John D.
Hoover and the said Oliver N. Moxey, heretofore in these
findings set forth, they, the said John D. Hoover and the said
Oliver N. Moxey sought to impress upon the mind of the said
defendant the great advantages to her, the said defendant,
of a marriage with the said Oliver N. Moxey.
7. That all the conduct of the said John D. Hoover and the
said Oliver N. Moxey in bringing about the marriage in find-
ing 5 herein referred to, and in inducing the said defendant
to sign the deeds heretofore in these findings mentioned,
was for the purpose of deceiving and imposing upon the de-
Estate of Moxey. 423
fendant, and of defrauding her, the said defendant, of the
said real property in finding 3 herein described.
8. That the said defendant is still the lawful owner of all
the real property in finding 3 herein described, and that the
said property needs the care and attention of some fit and
proper person, and that proper proceedings and suits ought
to be commenced for the cancellation of the deeds mentioned
in said finding 3, and for the quieting of said defendant's
title to said property.
9. That it is necessary that a guardian of the person and
estate of the said defendant should be appointed.
10. That the said defendant has one child, to wit, a daughter
named Alice Mandeville, who is the wife of the said Harry
Lester Mandeville, the plaintiff herein.
CONCLUSION OF LAW.
And the court finds as a conclusion of law from the fore-
going facts :
1. That the prayer of the amended petition herein for the
appointment of a fit and proper person as guardian of the per-
son and estate of the said defendant. Gage H. Phillips, also
known as Gage H. Moxey, should be, and the same is hereby,
granted.
DECREE AND ORDER APPOINTING GUARDIAN.
The above-entitled cause, having been regularly tried be-
fore the court, sitting without a jury, no jury having been
demanded by either of the parties to said cause, upon the veri-
fied amended petition of Harry Lester Mandeville for the ap-
pointment of a guardian of the person and estate of Gage H.
Phillips, also known as Gage H. Moxey, therein alleged to be
an incompetent person, and upon the answer of the said Gage
H. Phillips, also known as Gage H. Moxey, to said amended
petition, the said Harry Lester Mandeville, petitioner herein,
appearing by his attorneys and counsel, Messrs. Bishop,
Wheeler & Hoefler, L. M. Hoefler, William Rix, E. M. Rea
and C. W. Cobb, and the said Gage H. Phillips, also known
as Gage H. Moxey, the alleged incompetent aforesaid, having
been produced at the hearing and trial and having appeared
personally, and by her attorneys and counsel, Messrs. Truman
424 Coffey's Probate Decisions, Vol. 2.
and Oliver and S. V. Costello, and the court having heard the
said amended petition and said answer thereto, and the evi-
dence produced by the said petitioner and the said alleged
incompetent, as well as the arguments of their respective
counsel, and having duly considered the same, and being fully
advised in the premises, thereupon made and filed its findings
of fact, conclusions of law and decision herein, in writing, in
favor of the said petitioner and against the said alleged in-
competent, and it appearing to the satisfaction of the court
that all the averments of the said amended petition are true,
and that petitioner is entitled to the relief prayed therein :
Now, therefore, it is by the court hereby ordered, adjudged
and decreed that the said alleged incompetent. Gage H. Phil-
lips, also known as Gage H. Moxey, is, and at all the times
mentioned in the amended petition aforesaid was, an incompe-
tent person, and at all of said times was mentally incompetent
to manage her property, and incapable of taking care of her-
self and managing her property, and that by reason of dis-
ease and weakness of mind the said Gage H. Phillips, also
known as Gage H. ]\Ioxey, is, and at all the times aforesaid
was, unable unassisted to properl.y manage and care for herself
and her property, and by reason thereof would be, and at all
of the said times was, and now is, likely to be deceived and im-
posed upon by artful and designing persons, and, in truth,
has been deceived and imposed upon by artful and designing
persons, as in said amended petition set forth ; and it is by
the court further hereby ordered, adjudged and decreed that
the prayer of said amended petition for the appointment of
some fit and proper person as the guardian of the person and
estate of the said Gage II. Phillips, also known as Gage H.
Moxey, ought to be, and is hereby, granted.
That said Harry Lester IMandcville be, and is hereby, ap-
pointed guardian of the person and estate of the said Gage
H. Phillips, also known as Gage H. Moxey; that the said
Harry Lester Mandeville be, and hereby is, required forthwith
to execute and deliver to the said Gage H. Phillips, also
known as Gage H. Moxey, a bond in the sum of $100,000,
with sufficient sureties, to be approved by the judge of said
court, conditioned that he, the said Harry Lester IMandcville,
as such guardian, will faithfully execute the duties of his
Estate of Johnson. 425
trust according to law ; that upon the execution and giving of
such bond, as aforesaid, and the filing thereof in this court
duly approved letters of guardianship, in due form, be issued
out of said court and under the seal thereof to the said Harry
Lester Mandeville, as guardian of the person and estate of the
said incompetent. Gage H. Phillips, also known as Gage H.
Moxey, and that the said Harry Lester Mandeville, petitioner,
be awarded and paid his costs herein out of the estate of said
incompetent, such costs to be taxed hereafter in due course of
the administration of the estate of said incompetent.
Estate op THEODORE L. JOHNSON, Deceased.
Probate of Destroyed Wills. — An Olographic Will destroyed by a
friend of the testator in his presence, as being of no further use after
a typewritten copy thereof had been made, is not "fraudulently
destroyed," within the meaning of these words in the statute pro-
viding for the probate of lost or destroyed wills.
Edward C. Harrison, for proponent.
Bishop, Wheeler & Hoefler, for contestant.
COFFEY, J. V will destroyed in the presence and within
the observation and with the consent of the destroj^er, upon
the suggestion of a disinterested friend that it was "of no
further use and would better be destroyed, ' ' cannot be deemed
"a fraudulently destroyed" will, within the meaning of sec-
tion 1339 of the Code of Civil Procedure, so as to be entitled
to probate under section 1338 of the same code, where it ap-
pears that such suggestion was honestly made in the full but
erroneous belief, concurred in by the testator, that such will
was worthless, and that a copy thereof signed by the testator
and attested by only one witness was a legal and valid will,
and there is nothing to show that any of the testator's heirs
or other persons interested in his estate in any way connived
at such destruction of his will, or had any knowledge of it
until long afterward.
426 Coffey's Probate Decisions. Vol. 2.
A fraud committed by a third person furnishes no ground
of relief at law or in e(|uity against one who did not partici-
pate in, or connive at, its commission.
To entitle a will to probate as having been "fraudulently
destroyed" in the testator's lifetime, within the meaning of
section 1339 of the Code of Civil Procedure, it must be shown
that its destruction was procured through the fraud of some
person interested to have such will destroyed.
The destruction of a will procured by alleged misrepre-
sentations to the testator consisting merely of the honest ex-
pression of erroneous opinions as to matters of law by one
holding no fiduciary relation to such testator, is not fraudu-
lent destruction of such will within the meaning of Code of
Civil Procedure, section 1339.
Our statute on the subject of trusts (Civ. Code, sec. 2215 et
seq.) comprehends, classifies and defines all fiduciary relations
known to our law, whether they are relations of technical trust
or otherwise. Every fiduciary relation within the statute must
be voluntarily assumed or must arise by operation of law.
Mere friendship between parties and the repose of confi-
dence by one in the other will not alone create between them
any fiduciary relation known to the law : See Ruhl v. JMott,
120 Cal. 668, 678, 679.
Where a testator applied to one. who had long been his
friend, to attest his olographic will, and, upon the latter 's
suggestion, a typewritten copy of the will was prepared,
signed by the testator, and attested by the friend as a witness,
and such friend thereupon, without possessing or professing
any knowledge of the law on that subject, expressed the
opinion that the olographic will Mas "of no further use and
would better be destroyed," honestly, though erroneously, be-
lieving that it was so, and that the typewritten will was legal
and valid, and in conse((uence thereof the olographic will was
destroyed with the testator's consent, it was held that these
facts did not show that the friend had assumed any fiduciary
relation to the testator so as to convert his honest but erroneous
opinion upon such a matter of law into a fraudulent misrepre-
sentation, and to make out a case of fraudulent destruction
of the olographic will, within the meaning of Code of Civil
Procedure, section 1339.
Estate of Johnson. 427
In order to make out a case of actual, as distinguished from
constructive, fraud, a fraudulent or wrongful intent in doing
the alleged wrong must be shown ; as, where the destruction
of a will in the testator's lifetime is alleged to have been pro-
cured by fraudulent misrepresentations, so as to entitle such
will to probate as a " fraudulently destroyed ' ' will under Code
of Civil Procedure, sections 1338, 1339.
The fraudulent or w^rongful intent necessary to make out a
case of actual fraud cannot be presumed from the mere doing
of the fraud or wrong alleged, but must be proved.
The contents of a will fraudulently destroyed in the testa-
tor's lifetime, in order to entitle such will to probate under
Code of Civil Procedure, sections 1338, 1339, must be proved
by two credible witnesses, and proof of such contents by one
witness and a copy of the alleged will is not sufficient, espe-
cially where it appears that such copy is not a copy of the en-
tire will, as where such alleged will was olographic and the
copy does not include the date, or the like.
The Decision in the Principal Case is affirmed by the supreme court
in 134 Cal. 662, 66 Pac. 847.
LOST OR DESTROYED WILLS AND THEIR PROBATE.
General Status of Lost or Destroyed WiUs. — A properly executed
will, which has not been revoked by the testator, retains its validity
even though it cannot be found or has been destroyed, provided, of
course, that its destruction was not animo revocandi: In re Johnson's
Will, 40 Conn. 587; In re Payne's Will, 4 T. B. Mon. 422; Steele v.
Price, 5 B. Mon. 58.
As was said by the court in Foster 's Appeal, 87 Pa. 67, 30 Am.
Eep. 340, in speaking on this subject: "The will then being in exist-
ence at the death of the testator unrevoked by him, its loss or acci-
dental destruction differs not from the loss or destruction of any
other solemn instrument, such as a deed, a note or bond, or a record.
The contents, therefore, may be proved in like manner, as shown by
the authorities cited. It is a postulate of the question that the tes-
tator left behind him at death a last will in writing, legally executed
and published, and unrevoked by any act or direction of his. That
the law will not tolerate any making of a will for him by other means
than his own act in writing duly executed is clear. But such a will
having a legal existence, yet accidentally lost or destroyed, the es-
tablishment of its contents is not the making of a new will, but a
restoration merely of that which the testator himself made and left
behind him to govern his estate. There is no greater sanctity, in
428 Coffey's Probate Decisions, Vol. 2.
this respect, than the restoration by parol evidence of other instru-
ments equally solemn and having an equal effect in the disposition
of property. The law simply comes in aid of his own legally per-
formed act, to prevent his intentions from being frustrated or de-
frauded."
Presumptions Arising from Inability to Find Will. — The law never
presumes the existence of a will in the absence of proof: Augustus v.
Graves, 9 Barb. 595. But where a will is proved to have once ex-
isted and the will was in the possession of the testator, or where he
had ready access to it, the presumption arises that it was destroyed
animo revocandi where it cannot be found after the testator's death:
Jaques v. Horton, 76 Ala. 238; Scott v. Maddox, 113 Ga. 795, 84 Am.
St. Eep. 263, 39 S. E. 500; Boyle v. Boyle, 158 111. 228, 42 N. E. 140;
Minor v. Guthrie (Ky.), 4 S. W. 179; Davis v. Sigourney, 8 Met. 487;
Hamilton v. Crowe, 175 Mo. 634, 75 S. W. 389; Williams v. Miles, 68
Neb. 463, 110 Am. St. Eep. 431, 94 N. W. 705, 96 N. W. 151; In re
Willitt's Estate (N. J. Eq.), 46 Atl. 519; Hard v. Ashley, 88 Hun,
103, 34 N. Y. Supp. 583; Collyer v. Collyer, 110 N. Y. 481, 6 Am. St.
Rep. 405, 18 N. E. 110; Behrens v. Behrens, 47 Ohio St. 323, 21 Am.
St. Rep. 820, 25 N. E. 209; Gardner v. Gardner, 177 Pa. 218, 35 Atl.
558; In re Bell's Estate, 13 S. D. 475, 83 N. W. 566; McElroy v. Phink,
97 Tex. 147, 76 S. W. 753, 77 S. W. 1025; Minkler v. Minkler's Estate,
14 Vt, 125; Appling v. Eades, 1 Gratt. 286; Jamison v. Snyder, 79
Wis. 286, 48 N. W. 261. Hence if the evidence shows that a lost will
was last seen in the possession of the testator when he was mentally
competent, it is presumed that he destroyed it animo revocandi, and
the burden of proof is on the proponent to overcome this presumption:
In re Colbert's Estate, 31 Mont. 461, 107 Am. St. Rep. 439, 78 Pac.
971, 80 Pac. 248.
And it has been observed that: "It is therefore a natural presump-
tion merely because it cannot be supposed the testator would part
with it unless he intended to put it out of the way, and because it is
out of the way and cannot be accounted for, the presumption that he
intended to revoke it arises. Like other natural presumptions drawn
from evidence and not declared de jure, for some legal end, it must
give way to stronger evidence of the continued existence of the will
and the testator's reliance upon it as the disposition he had made of
his property": Foster's Appeal, 87 Pa. 67, 30 Am. Rep. 340.
But, on the other hand, where the will was not in the custody of
the testator, the fact that it cannot be found raises no presumption
that he destroyed it animo revocandi: Coddington v. .Tenner, 57 N. .1.
Eq. 528, 41 Atl. 874; In re Gardner's Estate, 164 Pa. 420, 30 Atl.
300 ; Harris v. Harris, 10 Wash. 555, 39 Pac. 148 ; In re Steinke 's Will,
95 Wis. 121, 70 N. W. 61.
Necessity to Rebut the Presumption of Revocation. — This presump-
tion of revocation arising from the inability to find a will which had
been in the possession of the testator is, of course, a rebuttable one
Estate of Johnson. 429
Davis V. Sigourney, 8 Met. 487; In re Willitt's Estate (N. J. Eq.), 46
Atl. 519; Minkler v. Minkler's Estate, 14 Vt. 125. The burden of re-
butting this presumption is upon the proponent of the lost will: Jaques
V. Horton, 76 Ala. 238; Scott v. Maddox, 113 Ga. 795, 84 Am. St. Rep.
263, 39 S. E, 500. And in order to overcome it, the proponent of the
lost or destroyed will must prove that the testator did not destroy
the will animo revocandi, and that he died believing it to be in exist-
ence: Gardner v. Gardner, 177 Pa. 218, 35 Atl. 588; or by showing
that it was improperly or fraudulently destroyed during the lifetime of
the testator: Idley v. Bowen, 11 Wend. 227.
Declarations of the testator having a tendency to show that if he
destroyed it, he did so without intent of revoking it, as by accident
or mistake, or, on the other hand, that he did so with an intent
to revoke it, are admissible on the question of whether the will was
destroyed animo revocandi: Hamilton v. Crowe, 175 Mo. 634, 75 S. W.
389; Behrens v. Behrens, 47 Ohio St. 323, 21 Am. St. Rep. 820; In
re Steinke's Will, 95 Wis. 121, 70 N. W. 61; monographic note to In
re Colbert's Estate, 107 Am. St. Rep. 468.
The presumption of revocation may also be rebutted by circumstan-
tial evidence: Behrens v. Behrens, 47 Ohio St. 323, 21 Am. St. Rep.
820, 25 N. 
