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Full text of "Reports of decisions in probate"



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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. ■ 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 ■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. — 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. ■ 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