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Full text of "Reports of decisions in probate"

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111 



REPORTS 



OF 



DECISIONS IN PROBATE 



BY 



JAMES V. COFFEY, 

JUDGE OF THE SUPEEIOR COUET, 



IN AND FOR THE 

CITY AND COUNTY OF SAN FRANCISCO, STATE OF 

CALIFORNIA. 



REPORTED AND ANNOTATED BY 



PETER V. ROSS and JEREMIAH V. COFFEY, 

Of the San Francisco Bar. 



VOLUME THREE. 



SAN FRANCISCO: 

BANCROFT- WHITNEY COMPANY, 

Law Publishers and Law Booksellers. 

1909. 



s 

Cl(a 

?94c 
V.3 



Copyright, 1909. 

BY 

JEEEMIAH VINCENT COFFEY. 



San Francisco: 

The Filmeb Brothers Electrotype Company, 

Typographers and Stereotypers. 



TABLE OF CASES. 



Page 

Antoldi, Estate of 513 

Bedell, Estate of 78 

,. Berg, Estate of 259 

Bergin, Estate of 288 

Blanc, Estate of 71 

Byrne, Estate of 69 

Callaghan, Estate of 84 

Clancy, Estate of 343 

Clark, Estate of 214 

De Noon, Estate of 352 

Devenney, Estate of 276 

jDolbeer, Estate of 232, 249 

Donahue, Estate of 301 

Donovan, Estate of 452 

1 Fair, Estate of 90 

|Fargo, Estate of 219 

'Fay, Estate of 270 

Finch, Estate of 294 

Garratt, Estate of 394 

Granniss, Estate of 429 

Griffiths, Estate of 545 

Grisel, Estate of 299 

Hanson, Estate of 267 

Harris, Estate of 1 

Henarie, Estate of 483 

Hull, Estate of 378 

k James, Estate of 130 

Leahy, Estate of 364 

Mackay, Estate of 318 

Mallon, Estate of 125 

McGinn, Estate of 26, 127 

Miehle, Estate of 99 

(iii). 



670509 



iv Table of Cases. 

Page 
Murphy, Guardianship of 103 

Nelson, Estate of 442 

O'Keeffe, Estate of 455 , 

i 

Pforr, Estate of 458 

Piercy, Estate of 473 

Eenton, Estate of 120, 519 

Eobinson, Estate of 224 

Eoss, Estate of 500 

Sharp, Estate of 279 

Spinetti, Estate of 306 

Stuart, Estate of 231 

Sylvester, Estate of 112 

Taylor, Guardianship of 105 

Thompson, Estate of 357 

Tobin, Estate of 538 

Treadwell, Guardianship of 309 

Welch, Estate of 303 

Wells, Estate of 229 

Werner, Estate of 225 

Wiese, Estate of 374 



TABLE 0^ CASES CITED. 



Page 

Academy v. Clemens, 50 Mo. 167 385 

Adams v. HoUey, 12 How. Pr. 330 529 

Adsit, Estate of, Myr. Eep. 268 1 22 

Alden v. County of Alameda, 43 Cal. 272 531 

Allen, Estate of, 78 Cal. 585 82 

Allen V. Currey, 41 Cal. 320 305 

Allen V. Peete, 25 Miss. 29 109 

Arguello, Minors, Estate of (No. 4170, Coffey, J.) 82 

Arkle v. Beedie, 141 Cal. 461 271 

Arlaud's Succession, 42 La. Ann. 320 317 

Astor, Matter of, 6 Dem. 402 377 

Attorney General v. Kent, 1 Hurl. & C. 594 355 

Attorney General v. Minshull, 4 Ves. Jr. 14 391 

Aurrecoechea v. Sinclair, 60 Cal. 540 531 

Aveline, Estate of, 53 Cal. 260 289 

Ball V. Tompkins, 41 Fed. 490 316 

Ballentine, Estate of, 45 Cal. 696 369 

Barfield v. Price, 40 Cal. 535 533 

Barnum v. Barnum, 26 Md. 119 273 

Bartlett, Ex parte, 4 Bradf . 221 317 

Barton, Estate of, 52 Cal. 540 290 

Baubichon, Estate of, 49 Cal. 18 125 

Baubichon, Estate of, Myr. Rep. 55 125 

Bauer, In re, 79 Cal. 304 371, 372 

Bauquier Matter, 88 Cal. 311 480 

Bayeaux v. Bayeaux, 8 Paige Ch. 333 263 

Beach v. King, 17 Wend. 197 532 

Beech, Estate of, 63 Cal. 458 81, 291, 547, 552 

Becker, Estate of (No. 15,939) 464 

Bell V. Ohio etc. Co., 1 Biss. 200 316 

Beneseh v. Clark, 49 Md. 497 445 

Blake, Estate of, 136 Cal. 306 41 

Bliss V. Bible Soc, 2 Allen, 334 385 

Blythe, Estate of, 99 Cal. 472 122 

Boody, In re, 113 Cal. 682 271 

Briggs V. Penny, 3 Man. & G. 554 269 

Brown v. Lamb, 6 Met. 203 127 

Brumagin v. Ambrose, 48 Cal. 366 305 

(V) 



vi Table of Cases Cited. 



Page 

Burd Orphan Asylum v. School District, 90 Pa. 21 383 

Burr V. Smith, 7 Vt. 241 385 

Burroughs v. De Couts, 70 Cal. 373 316, 317 

Cahalan, In re, 70 Cal. 605 70 

Cahill, Estate of, 74 Cal. 52 3 

Callen v. Ellison, 13 Ohio St. 446 316 

Camp V. Grider, 62 Cal. 26 82 

Carpenter, Matter of, 75 Cal. 596 3 

Carpenter v. Cameron, 7 Watts, 51 262 

Carpentier v. Oakland, 30 Cal. 446 316 

Carriger, Estate of, 104 Cal. 81 244, 246, 247, 248 

Casebeer r. Mowry, 55 Pa. 422 315 

Castro V. Eichardson, 18 Cal. 480 101 

Cavarly, Estate of, 119 Cal. 406 274 

Central Irr. Dist., In re, 117 Cal. 387 4 

Chambers, Ex parte, 80 Cal. 216 526 

Childs V. Lauterman, 103 Cal. 387 7 

Clancy, Ex parte, 90 Cal. 553 129 

Clark, Estate of, Myr. Eep. 265 11 

Clark, Ex parte, 87 Cal. 638 525 

Clark V. Taylor, 1 Drewry's Eep. 642 391 

Clayton v. Somers, 27 N. J. Eq. 230 350 

Clements v. McGinn (Cal.), 33 Pac. 920 40, 121 

Coggins' Appeal, 124 Pa. 1036 274 

Coit V, Haven, 30 Conn. 190 316 

Colton V. Colton, 127 U. S. 300 435 

Commonwealth's Appeal, 34 Pa. 204 376 

Connor's Case, 110 Cal. 408 477 

Coombs V. Hibbard, 43 Cal. 453 70 

Coope V. Lowerre, 1 Barb. Ch. 45 477, 479, 480 

Coster V. Lorrillard, 14 Wend. 265 274 

Cotter, Estate of, 54 £;al. 215 81, 291 

Cramer v. Sharp, 49 N. J. Eq. 558 481, 483 

Crawford v. Neal, 56 Cal. 321 6 

Crew V. Pratt, 119 Cal. 139 274 

Cruickshank v. Home etc., 113 N. Y. 351 274 

Crum V. Bliss, 47 Conn. 593 393 

Cudworth, Estate of, 133 Cal. 462 217 

Cunningham, Estate of, Myr. Eep. 214 122 

Danneker, In re, 67 Cal. 643. 316 

Davis, Estate of, 136 Cal. 590 5 

Davis, In re, 106 Cal. 453 455, 456 

Davis V. Binion, 5 La. Ann. 248 355 

Dean v. Superior Court, 63 Cal. 474 70 

Derby v. Derby, 4 E. I. 439 385 



Table of Cases Cited. vii 

Page 

Dodge V. Williams, 46 Wis. 70 382, 386 

Dolan, In re, 79 Cal. 65 351 

Donovan, Estate of, 140 Cal. 394 10, 12 

Dorland v. Cunningham, 66 Cal. 484 70 

Dorris, Estate of, 93 Cal. 611 81, 291 

Drury v. Inhabitants of Natick, 10 Allen, 169 383 

Dye V. Dye, 11 Cal. 163 529, 531 

Eldred v. Meek, 183 111. 26 274 

Elmer v. Kechele, 1 Redf. Surr. 472 475 

Emerson v. Bowers, 14 N. Y. 454 479 

Estep V. Armstrong, 69 Cal. 538 10 

Everitt v. Everitt, 29 N. Y. 75 349 

Fair, Estate of, 136 Cal. 81 462 

Fairbanks v. Lamson, 99 Mass. 533 383 

Fallon V. Butler, 21 Cal. 32 296 

Feeley, Matter of, 4 Eedf. 306 107 

Fennell v. Drinkhouse, 131 Cal. 448 271 

Fiske V. Attorney General, 4 Eq. Cas. 521 392 

Fleming v. Boiling, 3 Call, 75 262 

Flint, In re, 100 Cal. 400 5 

Foley V. California Horseshoe Co., 115 Cal. 195 7 

Fontain v. Eavenel, 17 How. 369 382 

Foos V. Scarf, 55 Md. 310 445 

Forbes v. Forbes, Kay, 341 355 

Ford V. Ford, 80 Wis. 565 305 

Forrest v. Mayor etc., 13 Abb. Pr. 350 533 

Foster v. Waterman, 124 Mass. 592 527 

Frierson v. General Assembly, 54 Tenn. 683 268 

Fuselier v. Masse, 4 La. 423 526 

Garrity, Estate of, 108 Cal. 463 452 

Garvey v. McDevitt, 72 N. Y. 562 273 ^ 

Garwood v. Garwood, 29 Cal. 514 304, 317 f 

Gharky, Estate of, 57 Cal. 279 10 

Gibbs V. Rumsey, 2 Ves. & B. 294 268 

Gibson, In re, 1 Cof . Pro. Dec. 9 269 

Gifford V. Thorn, 9 N. J. Eq. 702 350 

Gilbert v. Chapin, 19 Conn. 342 269 

Gillet V. Fairchild, 4 Denio, 83 533 

Gilman v. Hamilton, 16 111. 225 385 

Glenn, Estate of , 74 Cal. 567 126 

Goldtree Case, 79 Cal. 613 351 

Gonzales v. Wasson, 51 Cal. 297 82 

Goods of Cook, In re, L. R. Pro. D. (1902) 114 262 

Goods of Fraser, L. R. 2 P. & D. 183 262 



viii Table of Cases Cited. 

Page 

Goods of Fry, 1 Hagg. 80 262 

Goods of Kirby, In re, L. E. Pro. D. (1902) 188 262, 263 

Goods of Way, In re, L. E. Pro. D. (1902) 345 261 

Gordon v. Searing, 8 Cal. 49 102 

Graham v. Bennett, 2 Cal. 503 181 

Grant v. Spann, 34 Miss. 302 261 

Gray v. Bennett, 3 Met. 522 127 

Green, Estate of, 1 Cof . Pro. Dec. 445 355 

. Green v. Palmer, 15 Cal. 414 13 

j Gregg V. Bostwiek, 33 Cal. 227 300 

Gregory v. Keuyon, 34 Neb. 640 315 

Griffith, In re, 84 Cal. 113 305 

Hahn V. Kelly, 34 Cal. 413 316 

Hale V, Marsli, 100 Mass. 468 444 

Hammond v. Davenport, 16 Ohio St. 182 316 

Hancock v. Whittemore, 50 Cal. 523 297 

Harding v. Glyn, 1 Atk. 469 269 

Hartnett v. Wandell, 2 Hun, 552 263 

Hartnett v. Wandell, 60 N. Y. 350 262 

Hatfield v. Sohier, 114 Mass. 48 447 

Hawley v. James, 16 Wend. 123 274 

Haynes v. Sherman, 117 N. Y. 433 273 

Henderson v. Henderson, 46 Hun, 509 273 

Henf rey v. Henfrey, 4 Moore P. C. 33 262 

Higgins V. Higgins, 46 Cal. 263 271 

; Hill's Estate, In re, 102 Mo. App. 617 263 

Himmelman v. Danos, 35 Cal. 441 531 

Hinckley, Estate of, 58 Cal. 497 382, 383, 385 

Hodgdon v. Southern Pac. Co., 75 Cal. 642 316 

Hoeck V. Grief, 142 Cal. 119 272 

Hone V. Van Schaick, 20 Wend. 566 273 

Houston V. Williams, 13 Cal. 27 101, 102 

Howard v. Carusi, 109 U. S. 732 269 

Howard v. Society, 49 Me. 302 385 

Howe V. Howe, 152 HI. 252 274 

Howell V. Budd, 91 Cal. 342 304 

Hubbard, In re, 82 N. Y. 90 317 

Hudson, Estate of, 63 Cal. 454 70 

Hughes, Tutorship of, 13 La. Ann. 380 317 

Hyde, Estate of, 64 Cal. 228 81, 291, 547 

Imwood, Estate of (No. 24,925) 444 

Irwin V. Scriber, 18 Cal. 499 304, 316, 317 

Jackson v. Phillips, 14 Allen, 574 382, 385 

Jackson v. Eobins, 16 Johns. 588 445 

Johnsen v. Kelly, 44 Ga. 485 109 



Table of Cases Cited. ix 

Page 

Johnson, Estate of, 57 Cal. 530 360 

Johnson, Estate of, 2 Cof . Pro. Dec. 429 279 

Johnson v. Merchandise, 2 Paine, 601 353 

Jones V. Lament, 118 Cal. 499 456, 457 

Jopp V. Wood, 4 De Gex, J. & S. 616 355 

Judah V. Fredericks, 57 Cal. 389 532 

Kaltschmidt v. Weber, 145 Cal. 596 271 

Kaufman, Estate of, 117 Cal. 289 10 

Keane, Estate of, 56 Cal. 410 82 

Kearney v. Kearney, 72 Cal. 594 122 

Keating v. Spinks, 3 Ohio St. 105 316 

Keegan, Estate of, 139 Cal. 123 244, 246, 247 

Keenan, Estate of, Myr. Pro. 186 82 

Kechele's Case, Tuck. 52 475 

Kelly, Estate of, 57 Cal. 81 291 

Kendell v. Kendell, 36 N. J. Eq. 91 267 

Kief er v. Seminary, 46 Mich. 636 385 

Kirtlan, Estate of, 16 Cal. 165 82 

Kohler, Estate of, 79 Cal. 313 243, 244, 245, 247, 248 

Lahiff, Estate of, 86 Cal. 151 369 

Lambert v. Haskell, 80 Cal. 620 129 

Lambert v. Paine, 3 Cranch, 131 435 

Lane, Estate of, 1 Cof. Pro. Dec. 88 82 

Langford, Estate of, 108 Cal. 608 245, 248 

Lawrence v. Smith, 163 111. 149 274 

Leach v. Pierce, 93 Cal. 614 341 

Le Breton v. Cook, 107 Cal. 416 434 

Letters v. Cady, 10 Cal. 537 330, 331 

Levy, Estate of, 141 Cal. 652 230 

Lewis V. Lewis, 18 Cal. 654 439, 440 

Lines v. Darden, 5 Fla. 51 269 

Lord V. Hough, 37 Cal. 657 7, 107, 109 

Lucas V. Todd, 28 Cal. 182 305 

Lux, Estate of, 100 Cal. 593 304, 305 



Majors v. Majors, 32 Gratt. 819 349 

Mann v. Morewood, 5 Sand. 557 529 

Marsh V. Means, 3 Jur. (N. S.) 790 392 

Marsters v. Lash, 61 Cal. 624 341 

Martin v. Perkins, 56 Miss. 204 122 

Mawson v. Mawson, 50 Cal, 541 369 

Maxwell, Estate of, 74 Cal. 384 70 

Maxwell, Estate of, 1 Cof. Pro. Dec. 126 369 

McCauley, Estate of, 138 Cal. 436 284 

McCausland, Estate of, 52 Cal. 577 297 



Table of Cases Cited. 



Page 

McClure's Appeal, 72 Pa. 414 349 

McDevitt, Estate of, 95 Cal. 31 10, 246, 254, 544, 545 

McDonnell, Ex parte, 2 Brad. Sur. (N. Y.) 32 262 

MeDoiigall, Estate of, 1 Cof . Pro. Dec. 109 82 

McGinn, Estate of, 3 Cof. Pro. Dec. 26 121 

Meyer v. Kinzer, 12 Cal. 247 370 

Miller v. Worrall (N. J.), 48 Atl. 586 436 

Moore, Estate of, 68 Cal. 283 82 

Moore v. Moore, 4 Dana (Ky.), 354 385 

Moorehouse v. Cooke, Hopk. Ch. 258 107 

Morgan, Estate of, 53 Cal. 243 83, 290 

Morrfew Case, 107 Cal. 587 446 

Morrison v. Estate of Sessions, 70 Mich. 297 524 

Mount V. Scholes, 120 111. 402 315, 316 

Muersing, Estate of, 103 Cal. 585 547 

Mullin, Estate of, 110 Cal. 252 243, 244, 246 

Murphy, Estate of, Myr. Eep. 185 290 i 

Myers v. Daviess, 10 B. Mon. 396 262 

Nelson, Estate of, 132 Cal. 182 243, 244, 245, 248 

Norris v. Harris, 15 Cal. 252 341 

Nunan, Estate of, Myr. Eep. 238 290 

Nunn V. Owens, 2 Strob. 101 262 

Olney v. Angell, 5 E. I. 203 124 

Olvera, Estate of, 70 Cal. 184 126 

Orcutt's Appeal, 97 Pa. 185 376 

Ortiz, Estate of, 86 Cal. 306 298 

Ould V. Washington Hospital, 95 U. S. 311 382 

Owlsley V. Harrison, 190 HI. 235 274 

Pacheco, Estate of, 23 Cal. 480 480 

Paine v. Schenectady Ins. Co., 11 E. I. 411 316 

Parsons v. Smilie, 97 Cal. 653 540 

Partridge, Estate of, 1 Cof. Pro. Dec. 208 302 

Pearson v. Pearson, 46 Cal. 609 323, 325 

Pearson v. Pearson, 51 Cal. 120 323 

Pennie v. Superior Court, 89 Cal. 33 129 

People V. Almy, 46 Cal. 246 104 

People V. Collum, 122 Cal. 186 248 

People V. Conkling, 111 Cal. 616 248 

People V. Goodhue, 80 Cal. 199 305 

People V. Harrison, 84 Cal. 608 305 

People V. Jackson, 24 Cal. 630 530 

People V. Olvera, 43 Cal. 492 297 

People V. Peralta, 4 Cal. 175 353 

Perry v. Eoss, 104 Cal. 15 272 



Table of Cases Cited. xi 

Page 

Pettee v. Wilmarth, 5 Allen, 144 304, 305 

Philadelphia v. Girard's Heirs, 45 Pa. 9 385 

Pico V. Cohn, 91 Cal. 129 305 

Pierce, In re, 12 How. Pr. 532 316, 317 

Post V. Kohrbock, 142 111. 600 274 

Powers V. Chabot, 93 Cal. 266 129 

Powers V. Crane, 67 Cal. 65 129 

Pullman Car Co. v. Missouri Pac. Co., 115 U. S. 594 381 

Quivey v. HaU, 19 Cal. 98 126, 127 

Ealston v. Telfair, 17 N. C. 225 268 

Kamsdell v. Eamsdell, 21 Me. 288 444 

Kaynor, In re, 74 Cal. 422 317 

Eead v. Eahm, 65 Cal. 344 271 

Eeed's Appeal, 118 Pa. 220 350 

Eeed v. Eing, 93 Cal. 96 7 ^ 

Eedfield, Estate of, 116 Cal. 637 244, 245, 246, 248 

Eehder, Estate of. No. 16,125 548, 553 

Eeinhardt, In re, 74 Cal. 365 351 

Eeynolds v. Brumagin, 54 Cal. 257 69 

Ehoda V. Alameda County, 52 Cal. 350 530 

Eice V. Barrett, 102 N. Y. 164 274 

Eichard v, Kimball, 5 Eob. (La.) 142 354 

Eickards' Case, 15 Abb. Pr. (N. S.) 7 107 

Eogers v. Hoberlein, 11 Cal. 128 289 

Eoot V. Davis, 10 Mont. 245 476 

Eosenberg v. Frank, 58 Cal. 387 434 

Eoss V. Conway, 92 Cal. 632 ' 11 

Eoss V. Eoss, 129 Mass. 243 524, 526 

Eoss V. Southwestern E. E. Co., 53 Ga. 514 317 

Eotch V. Emerson, 105 Mass. 431 268 

Eowe V. Hibernia etc. Loan Soc, 134 Cal. 403 271 

Euffino, Matter of, 116 Cal. 304 15 ^ 

Eussell V. Allen, 107 U. S. 163 268, 383 

Eussell V. Clapp, 7 Barb. 482 530 

Eyal V. Kennedy, 40 N. Y. Sup. Ct. 347 353 

Saltonstall v. Sanders, 11 Allen, 446 383 

Sanborn, Estate of, 98 Cal. 103 293 

Scearce v. Glenn County, 100 Cal. 419 14 

Schedel, In re, 69 Cal. 242 128 

Schettler v. Smith, 41 N. Y. 328 274 

Schmidt, Estate of, 94 Cal. 334 369 

Scott, Estate of, 15 Cal. 220 3, 5 

Schuknecht v. Schultz, 212 111. 43 274 

Schuyler v. Broughton, 70 Cal. 282 372 



xii Table of Cases Cited. 

Page 

Sealy, Estate of, 1 Cof. Pro. Dec. 90 315 

Seaverns v. Gerke, 3 Saw. 353 316 

Sheldon's Lessee v. Newton, 3 Ohio St. 494 31G 

Shields v. Ohio, 95 U. S. 323 381 

Shilton, Matter of. Tuck. 73 480 

Shumway v. Leakey, 67 Cal. 460 341 

Smith, Ex parte, 53 Cal. 204 3, 5 

Smith V. Smith, 141 N. Y. 34 394 

Smith Purifier Co. v. McGroarty, 136 U. S. 237 316 

Snider v. Snider, 70 S. C. 555 268 

Snodgrass v. Brandenburg, 164 Ind. 59 275 

Snow V. Snow, 49 Me. 159 350 

Spencer, Estate of, 96 Cal. 448 244, 247, 248 

State V. Eogers, 1 Houst. 569 262 

State V. Watson, 2 Spears (S. C), 97 264 

Steele, Estate of, 124 Cal. 537 274 

Steer, In re, 3 Hurl. & N. 594 355 

Stevens, Estate of, 83 Cal. 322 222, 525 

Stevenson, Estate of, 72 Cal. 164 81, 291, 549, 554 

Stockton Combined etc. Works v. Glen's Falls Ins. Co., 98 Cal. 577. 122 

Stone V. Brown, 16 Tex. 430 T 262 

Strode v. Commonwealth, 52 Pa. 181 377 

Sweeney v. Sampson, 5 Ind. 465 383 

Tape V. Hurley, 66 Cal. 474 308 

Tate, Estate of, 1 Cof. Pro. Dec. 217 369, 372 

Taylor, Estate of, 92 Cal. 564 541 

Taylor v. Palmer 31 Cal. 244 555 

Terry v. Wiggins, 47 N. Y. 514 451 

Thomas v. Desmond, 12 How. Pr. 321 530 

Thomas v. Railroad Co., 101 U. S. 71 390 

Tillaux V. Tillaux, 115 Cal. 672 271 

Toland Case, 123 Cal. 140 463, 464 

Towle V. Doe, 97 Me. 427 275 

Towne, Estate of, 143 Cal. 508 217 

Townsend v. Tallant, 33 Cal. 52 8 

Travis v. Morrison, 28 Ala. 494 350 

Tripp V. Santa Eosa St. E. E. Co., 69 Cal. 631 70 

Tucker v. Field, 5 Eedf . (K Y.) 139 354 

Tyler v. Eeynolds, 53 Iowa, 146 524 

Underbill v. Dennis, 9 Paige, 208 107 

Underwood v. Curtis, 127 N. Y. 541 273 

Union etc. Ins. Co. v. University of Chicago, 10 Biss. 191, 16 Fed. 

443 31G 

Vidal v. Commagere, 13 La. 516 .526 

Yiolett V. Patton^ 5 Cranch, 142 307 



Table of Cases Cited. xiii 

Page 

Wachlin v. Town of Gleneoe, 41 Minn. 499 545 

Walker v. Walker, 34 Ala. 470 541 

Walkerly, In re, 108 Cal. 579-659 227, 273, 275, 300, 369 

Warner v. Wilson, 4 Cal. 310 316 

Western Union Tel. Co. v. Locke, 107 Ind. 9 122 

Wheeler, Estate of (No. 15,634) 548, 553 

Whicker v. Hume, 7 H. L. Cas. 124 355 

White V. Joy, 13 N. Y. 86 532 

Whitney v. Dodge, 119 Cal. 192 274 

Williams v. Williams, 73 Cal. 99 351 

Williamson, In re, 75 Cal. 317 351 

Wilson, Matter of, 117 Cal. 280 15, 245 

Winn, Succession of, 3 Eob. 304 317 

Winslow V. Cummings, 3 Cush. 358 385 

Winter, In re, 114 Cal. 186 274 

Wood, Estate of, 36 Cal. 82 293 

Woods, In re, 94 Cal. 566 129 

Young, Estate of, 123 Cal. 337 273 

Young, Estate of, 123 Cal. 341 275, 436, 438 



CITATIONS. 



CALIFORNIA. 

Constitution. — 1849, art. 11, sec. 14 440 

1879, art. 1, sec. 15 • 5 

art. 20, sec. 8 440 



STATUTES. 

1883, p. 299 100 

1893, p. 193 374 

1895, p. 121 134 



CODE OF CIVIL PROCEDURE. 



SECTION PAGE 

16 308 

22 4 

23 4 

372 3,4 

373 3, 4, 6 

392-395 5 

397 103, 104 

416 316 

456 528 

941 128, 129 



942 
943 
944 
945 
949 



128 
128 
128 
128 
128 



963 70, 309 

1193 360 

1276 56 

1294 289, 352 

1298 99, 289 

1299 102 

1307 5, 293 

1309 289 

1312 4, 289, 293, 521 

1313 4 



SECTION PAGE 

1314 4 

1318 289 

1322 290, 291, 292 

1323 122, 291, 292 

1324 122, 290, 291, 292, 293 

1327 122, 290 

1333 7, 290 

1338 290 

1339 277, 279 

1341 290 

1344 290 

1348 290 

1350 290 

1364 290 

1365 ....80, 81, 82, 290, 292, 
548, 549, 550, 551, 552, 554 

1369 474 

1371 290 

1376 121 

1379 80, 

81, 82, 83, 290, 552, 553, 554 
1383 548, 

549, 550, 551, 552, 553, 554 

1413 101 

1444 114 



(XV) 



XVI 



Citations. 



CODE OF CIVIL PEOCEDUEE— Continued. 



SECTION PAGE \ 

1451 303 

1453 88 

1464 220, 308, 341 

1465 

221, 229, 308, 341, 365, 368 

1466 221, 319, 341 

1467 295, 297 

1468 308, 369 

1469 308 

1470 220 

1490 295, 296 

1494 126, 127 

1516 375 

1539 8 

1618 215, 216, 218 

1622 69, 70, 88 

1624 69 

1628 69, 88 

1632 69 

1633 70, 90 

1634 90 

1637 69, 86 

1643 126, 295, 297 

1645 127 

1646 295, 297, 298 

1647 88 

1651 88, 89 

1652 87, 89, 90 

1653 87 



SECTION PAGE 

1658 395 

1665 85, 88, 89 



1666 
1668 
1713 
1718 
1726 
1727 
1728 
1729 
1743 



454 
90 
103 
3 
289 
289 
289 
289 
289 



1747 3, 317, 318 

1749 318 

1826 245 

1850 356 

1855 100, 102 

1870 541 

1881 5, 248 

1904 100 

1908 69, 304, 305 

1937 102 

1950 101 

1958 55, 73 

1960 55, 73 

1962 181 

1963 356, 362, 372 

1973 307 

2061 343 



SECTION 

29 ... 

55 ... 

57 ... 

60 .., 

63 .., 

68 .. 

163 .. 

164 .. 
197 .. 
230 .. 
236 .. 
240 .. 



CIVIL 

PAGE 

339 

134 

134 

340 

341 

134 

.371, 372, 440 

271 

108 

339 

8 

8 



246 7, 106 



253 



.106, 107 



CODE. 

SECTION PAQB 

295 381 

354 389 

473 380, 387 



510 
679 
687 
695 
697 



389 
273 
440 
350 
444 



715 273, 462, 463 

716 273, 468 

723 227 

724 462, 463 

733 227 

740 444 



Citations. 



xvn 



CIVIL CODE— Continued. 



SECTION PAGE 

749 273 

889 273 

1260 221 

1261 221 

1275 283, 286 

1276 257, 281, 287, 363 

1277 257 

1287 284 

1292 56 

1301 399, 401 

1303 401 

1304 401 

1306 510 

1307 503, 510, 511, 512 

1310 503, 511, 512 

1313 283, 286, 287 

1317 269, 284 

1318 273, 275 

1332 435 



SECTION PAGE 

1333 435 

1341 350, 382 

1343 391 

1344 351 

1345 349 

1347 349 

1359 376 

1361 263 

1363 375 

1371 260 

1376 123, 124, 125 

1384 375 

1386 375 

1387 181, 339, 341, 342 

1572 50, 59 

1575 45, 57 

1605 307 

1606 307 



SECTION 

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1239 .. 

4072 .. 
4204 .. 



POLITICAL CODE 

PAGE SECTION 

.317, 352, 356 

353 

531 

100 



PAGE 

4481 291 

4482 291 

4483 292, 553 

4484 553 



SECTION 

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PENAL CODE. 



PAGE 

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. 101 



SECTION 
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647 .. 



PAGE 
. 101 

. 475 



COFFEY'S 
PROBATE DECISIONS. 



Estate of CLARA HARRIS, Deceased. 

[No. 2,853; decided November 18, 1908.] 

Will Contest — Nature of Proceeding. — The contest of a will is not a 
civil action; it is a special proceeding of a civil nature, and not sub- 
ject, except as to the mode of trial, to the provisions of part 2 of the 
Code of Civil Procedure. 

Administration. — Proceedings for the Settlement of the Estate of a 
decedent, and matters connected therewith, are not civil actions with- 
in the meaning of the Code of Civil Procedure, sections 392-395, nor 
within the meaning of section 15 of article 1 of the constitution. 

Guardians — Classes and Definitions. — Guardians are either general or 
special; a guardian of the person, or of all the property of the ward 
within the state, being a general guardian, and all others being spe- 
cial guardians. 

Guardian Ad Litem — Appointment in WiU Contest. — Where the 
mother of minors who is their general guardian has no interest adverse 
to them, there is no occasion for appointing a guardian ad litem to 
represent them in a will contest. 

Will Contest — Pleading Unsoundness of Mind. — If unsoundness of 
mind is relied upon in a will contest, it is sufficient to state that the 
deceased at the time of tlie alleged execution of the proposed paper 
was not of sound and disposing mind. 

Will Contest — Pleading Fraud and Undue Influence. — When the 
grounds of a contest embrace duress, fraud, undue influence, or execu- 
tion of a subsequent will, such matters not being ultimate facts, but 
conclusions of law to be drawn from facts, must be pleaded. 

Will Contest. — In Pleading Fraud the Facts must be Clearly stated, 
so that the court may determine therefrom whether the charge is well 
founded. 

Will Contest — Injustice or Unnaturalness of Gifts. — A will cannot be 
contested on the ground that it is foolish, unnatural, capricious or un- 
just. 

Prob. Dec, Vol. Ill — 1 (1) 



2 Coffey's Probate Decisions, Vol. 3. 

Will Contest. — In Pleading Fraud and Undue Influence it is not suf- 
ficient to state the nature of the fraud and undue influence, but the 
facts should be alleged; and they should be stated with certainty and 
expressly connected with the testamentary act. 

Will Contest. — Allegations of Fraud and Undue Influence should be 
as positive, precise and particular as the nature of the case will al- 
low. The mere fact that the beneficiary had an opportunity to pro- 
cure a will in his own favor or that he had a motive for the exercise 
of undue influence, does not raise a presumption of its exercise. Such 
exercise must be directly pleaded as bearing upon the testamentary 
act. 

Will Contest — Evidence of Undue Influence. — The fact that the pro- 
ponent of a will was the son of the testatrix and lived in the same 
house with her for years, and acted as her agent in certain business 
affairs, does not import fraud or undue influence. It may have af- 
forded an opportunity coexistent with a motive, but the law does not 
presume, from the mere fact that there was an opportunity or a mo- 
tive for its exercise, that undue influence was exerted. 

Will Contest. — Undue Influence, in Order to Invalidate a will, must 
be such as to destroy the free agency of the testator at the time and 
in the very act of making the testament; it must bear directly upon 
the testamentary acts. 

Will Contest. — The Facts Constituting tlie Cause of Action in a will 
contest should be stated in ordinary and concise language. 

Will Contest — Manner of Pleading. — Under Our System of Pleading 
facts only must be stated. This means the facts, as contradistin- 
guished from the law, from argument, from hypothesis, and from the 
evidence of the facts. Those facts, and those only, must be stated, 
which constitute the cause of action or the defense. 

Will Contest — Pleading Undue Influence. — An allegation that influ- 
ence was overpowering or that the testatrix was unable to resist, with- 
out the recital of the facts supporting such conclusion, is not suffi- 
cient. 

Will Contest. — An Allegation that "Contestants are Informed and 
Believe" that a certain event occurred is not positive. The averment 
must be direct, although it may be based on such information and be- 
lief. The fact itself must be alleged in set terms. 

Will Contest, — Allegations of Fraud Should State the Facts suflScient 
to constitute the fraud; otherwise a special demurrer will be sustained. 

Testamentary Capacity — Manner of Acquiring Property, — Persons 
contesting a will may introduce evidence of the manner of acquisition 
of the property disposed of in the will, as bearing in some degree, 
however remotely, on the question of testamentary capacity. 



Estate of Harris. 3 

Contest to probate of will ; demurrer to contest. 

Vogelsang & Brown, for demurrant. 

Frank J. Sullivan, for contestants. 

Galpin, Elkins & Frost, also for contestants. 

COFFEY, J. Contestants insist that this court has juris- 
diction where a guardian ad litem appears for minors and 
cites sections 372 and 373 of the Code of Civil Procedure and 
certain cases in support of this claim ; but the supreme court, 
in the Matter of Carpenter, 75 Cal. 596, seemed to hold the 
contrary, saying that they did not think the provisions re- 
ferred to applied to probate proceedings. At that time, how- 
ever, section 1718, Code of Civil Procedure, was in existence, 
and there was no necessity for a guardian ad litem, if the trial 
court in a will contest exercised its power to appoint an at- 
torney to represent minor heirs. In the Carpenter case the 
supreme court cited the Estate of Scott, 15 Cal. 220, and Ex 
parte Smith, 53 Cal. 204, to the effect that probate proceed- 
ings are not "civil actions," and the court repeated that they 
are not to be considered such within the purview of sections 
372 and 373 ; but in the circumstances of that case the court 
thought the mxere name or description of the officer of the 
court appointed was not material, since the purpose of the 
statute was accomplished and the rights of the infant pro- 
tected by the appointee. 

Since that decision, section 1718, Code of Civil Procedure, 
has been repealed, and now the court, sitting in probate, has 
no power to appoint an attorney to represent minor heirs, as 
such, and seems to be limited to the general laws of guardian- 
ship. Counsel for contestants say that section 1747, Code of 
Civil Procedure, prescribed that the "court may appoint a 
guardian of minors who have a guardian legally appointed 
by will." This is a misapprehension. The section says: 
"The court may appoint guardians of minors who have no 
guardian legally appointed by will or deed." 

Estate of Cahill, 52 Cal. 52, in contestants' brief is a mis- 
citation. The correct citation is 74 Cal. 52, 15 Pac. 364, in 
which the opinion was written by the same judge who decided 



4 Coffey's Probate Decisions, Vol. 3. 

the Carpenter case later, in April, 1888. The precise point 
decided in the latter case was not raised in the former. The 
power of the probate tribunal was not challenged ; it was only 
the regularity of its exercise. In the Carpenter case, the 
power of a court in probate to appoint a guardian ad litem 
under sections 372 and 373 was denied by the court; but the 
circumstances made the denial merely dictum, and it may now 
be considered as at least open to discussion, although the 
dictum may have attained the dignity of a decision of the 
appellate tribunal, since it has been followed in this forum 
up to the time of the case at bar, but the reasoning of the 
court still remains. 

The supreme court has determined that a contest of a will 
is not a civil action. It is a proceeding in probate, although 
by special provision (part 3, "Of Special Proceedings of a 
Civil Nature," title 11, "Of Proceedings in Probate Courts," 
chapter 2, article 2, sections 1312, 1313, 1314, Code of Civil 
Procedure), the trial must be conducted in the same manner as 
in civil actions. On the trial the contestant is plaintiff, and 
the petitioner defendant. This applies simply to the mode 
of trial, but it does not alter the nature of the case; it does 
not make this proceeding a civil action. 

A civil action is an ordinary proceeding in a court of 
justice, by which one party prosecutes another for the en- 
forcement or protection of a right, the redress or prevention 
of a wrong, or the punishment of a public offense : Code Civ. 
Proc, sec. 22. Every other remedy is a special proceeding: 
Code Civ. Proc, sec. 23. 

Part 2, Code of Civil Procedure, treats of civil actions. In 
this part is found the sections authorizing appointment of 
guardians ad litem. If there were any conflict between these 
parts or titles, the probate act must prevail as to all matters 
and questions arising out of its subject matter; but there is 
no such conflict, and, therefore, there can be no dispute that 
a will contest is a special proceeding of a civil nature, and not 
subject except as to the mode of trial, to the provisions of 
part 2, concerning civil actions. The term "special proceed- 
ing" is used in contradistinction to "civil action." This dis- 
tinction is well recognized : In re Central Irr. Dist., 117 Cal. 
387, 49 Pac. 354. 



Estate of Harris. 5 

The proceeding's for the settlement of an estate, and matters 
connected therewith, are not civil actions within the meaning 
of the practice act, sections 18 to 21 (corresponding to Code 
of Civil Procedure, 392-395; Estate of Scott, 15 Cal. 221), 
and it is manifest they are not a civil action within the mean- 
ing of section 15 of article 1 of the constitution of California : 
Ex parte Smith, 53 Cal. 207. 

In substance, the supreme court so said in Estate of Davis, 
136 Cal. 590, 69 Pac. 412, and in numeroui? other cases. In the 
Davis case, Mr. Justice Garoutte said that the character and ex- 
tent of probate jurisdiction is a matter solely under legislative 
control, and the procedure by which that jurisdiction may be 
invoked and rights thereunder adjudicated is expressly laid 
down by the probate statute, and that that procedure must 
be followed or relief under such jurisdiction cannot be 
secured; that is to say, relief sought in probate must be de- 
pendent at all points upon the power conferred by the probate 
statutes. The same justice said in Re Flint, 100 Cal. 400, 34 
Pac. 865, that a contest arising upon the probate of a will 
is a civil action within the meaning of subdivision 4 of sec- 
tion 1881 of the Code of Civil Procedure; but that w^as a 
point of evidence incident to the mode of trial, and in no wise 
affected the question of jurisdiction here suggested. 

Contestants assert that the law is clear that the guardian 
ad litem is the proper person to act in this situation, for the 
mother's interest might be adverse to the minors; she might be 
the sole heir and wish to support a will obtained by fraud. 
Will it be argued that a guardian ad litem is not necessary 
in such case? If it be true in one, why not in all where a 
judge approves? Contestants argue that this construction is 
clearly the right one, and that the sections of the Code of 
Civil Procedure must be read together. 

Counsel says that section 1307 prescribes that heirs may 
contest a will through guardians appointed by themselves, or 
by the court for that purpose. This is not the literal lan- 
guage of the statute which reads : 

"Sec. 1307. Who may appear and contest the will. Any 
•person interested may appear and contest the will. Devisees, 
legatees, or heirs of an estate may contest the will through 
their guardians, or attorneys appointed by themselves or by 



6 Coffey's Probate Decisions, Vol. 3. 

the court for that purpose ; but a contest made by an attorney 
appointed by the court does not bar a contest after probate 
by the party so represented, if commenced within the time 
provided in article four of this chapter; nor does the nonap- 
pointment of an attorney by the court of itself invalidate the 
probate of the will." 

Since the adoption of that section the power to appoint 
attorneys has been abrogated. 

In this case, it appears that the mother's interest is not ad- 
verse to the minors, for it was on her petition that the appoint- 
ment was made. Her petition alleged that the minors were 
under the age of ten years; that they were interested in the 
estate of Clara Harris, their grandmother, as the heirs of her 
son, Stephen Loring Harris, and that a guardian ad litem was 
necessary to defend their interests. Whereupon the court 
made an order appointing a guardian ad litem as prayed for. 

Counsel for contestants contend that this order was valid 
and proper under section 373, Code of Civil Procedure, which 
is to the effect that a court appoints a guardian when an in- 
fant is plaintiff under the age of fourteen years upon the 
application of a relative or friend, and that this was the 
procedure here. The practice in all civil cases is to apply 
before the suit is filed to a judge to have a guardian ad litem 
appointed ; then when the order is made, the suit in his name 
as guardian is filed with the county clerk. It is the same in 
probate cases, also, say the counsel, and it is necessary to 
allege appointment of guardian, citing Crawford v. Neal, 56 
Cal. 321; but this was a civil action, and, as has been seen 
already, does not apply to probate matters. 

Counsel for contestants further assert that there is no show- 
ing here that there is a general guardian, and as all the papers 
in the probate proceedings of Stephen L. Harris are de- 
stroj^ed, and as restoration of them has never been made, 
it must be assumed that the mother is the general guardian. 
This is not a legal assumption in these premises, and if it 
were, there would be no necessity of a guardian ad litem, her 
interest not being adverse or hostile, but friendly, as is estab- 
lished by her application in this instance; and, in that ease, 
if she were general guardian, it would be proper for her to 
institute the contest on behalf of the minors as such general 



Estate op Harris. 7 

guardian. She is the guardian by nature and for nurture, 
and, being otherwise competent, is entitled by appointment to 
the guardianship of the estate of the minor: Civ. Code, sec. 
246 ; Lord v. Hough, 37 Cal. 669. 

The fact and manner of the appointment should be pleaded 
so as to permit proof or traverse; although if the traverse 
were found to be true and the appointment held defective, 
the error could be cured by judicial leave to file a new peti- 
tion and secure a valid order. At worst, this would be mere 
inconvenience and not operate a hardship to the infants. It 
is corrigible error, and does not necessarily invalidate the pro- 
ceeding otherwise correct : Reed v. Ring, 93 Cal. 96, 28 Pac. 
851 ; Foley v. California Horseshoe Co., 115 Cal. 195, 47 Pac. 
42. 

In ordinary civil actions a judgment against an infant 
where no guardian has been appointed is not for that reason 
void (Childs v. Lauterman, 103 Cal. 387, 37 Pac. 382), but 
it may be questioned whether that rule applies to a probate 
contest where the statute provides a saving clause for infants, 
allowing a period of one year after majority to contest the 
will : Code Civ. Proc, sec. 1333. 

Ordinarily, the judgment is not void, but is merely voidable 
at his instance ; it may be affirmed by him, and, as in the case 
of any other obligation that he has assumed during infancy 
which is susceptible of ratification, it will be considered as 
affirmed by him if he takes any action in reference thereto, 
after he becomes of age, which is consistent only with assum- 
ing its validity. 

Counsel for contestants say that if this court have any 
doubt as to the power of appointment in probate of a guardian 
ad litem, they would prefer to test this point at once by an 
appeal, rather than go to trial and have the case reversed on 
the plea of lack of jurisdiction. Whatever doubt the court 
may have otherwise, the supreme court itself in the Carpenter 
case held that the sections depended upon by counsel did not 
apply in probate matters, w^hile there was a statute providing 
for the appointment of an attorney to represent infants in 
such proceedings; but there is now no such statute, hence no 
power at all in probate except through a general guardian . 
Now, where the interest of the guardian in a particular matter 



8 Coffey's Probate Decisioxs, Vol. 3. 

is contrary to that of his ward, or where he occupies a dual or 
duplex position, as, for instance, where he is simultaneously 
administrator and guardian, manifestly he cannot legally 
occupy these antagonistic attitudes. So far as general uses are 
concerned, the two situations are not necessarily incompatible ; 
but if by reason of circumstances, as an attempt by the ad- 
ministrator to divest the title of the infant heir by a sale, 
under a probate order, of lands to pay debts of an intestate, 
his position became hostile to the infant, he could not repre- 
sent the ward: Townsend v. Tallant, 33 Cal. 52. The minor 
then having no guardian quoad the petition, it became the 
duty of the court, before acting, **to appoint some disinter- 
ested person his guardian for the sole purpose of appearing 
for him and taking care of his interests." This was the lan- 
guage of section 159 of the old probate act ; but these words 
are not to be found in section 1539 of the Code of Civil Pro- 
cedure, which is the statute that superseded the old act. The 
present probate law mentions "any general guardian of a 
minor so interested," and so differs from the former. 

The code, with characteristic brevity, declares that guard- 
ians are either general or special; a guardian of the person, 
or of all the property of the ward within the state, being a 
general guardian, and all others being special guardians: 
Civ. Code, 236-240; 2 Ross' Probate Law and Practice, 936. 

Now, if the general guardian is adverse in interest, as in 
Townsend v. Tallant, 33 Cal. 52, above cited, although the 
language of the statute has been changed by the code, it 
should seem anomalous that the infant may not be protected 
by a special guardian with functions limited to the particular 
action or proceeding in probate, whether it be a sale of real 
estate, as in that case, or an application for the revocation of 
a probate of a will, as in the matter under advisement. Such 
a provisional order was made in a contemplated contest in the 
Estate of Robert P. Hastings, Deceased, at the instance of the 
former Judge Serranus Clinton Hastings, where the widow 
was executrix of the will and guardian of the minor, although 
this court questioned the technical power, yet it deemed it 
advisable for the protection of the infant to make the special 
appointment. 



Estate of Harris* 9 

So in this case the court might act in like manner; but in- 
asmuch as the interests of the mother and minors are not ad- 
verse, there should seem to be no similar reason for a special 
guardian, as she could be appointed general guardian and in 
that way protect the legal rights of the infants, 

I choose, however, to pretermit this point for the present 
and to pass to the main grounds of demurrer, formally over- 
ruling the objections stated in paragraphs 1 and 2 of demurrer. 

Paragraph 3 of demurrer is addressed to the sixth ground 
of contest, to wit, the allegation on information and belief 
that the alleged will and testament of decedent admitted to 
probate is not her last will, and was never executed by her 
because, "as they are informed and believe, the said original 
will was destroyed by fire in April, 1906." This averment 
is technically ill in form, because it should be direct and 
pleaded absolutely as a fact. The physical destruction of the 
original will by fire in and of itself would not operate to prove 
the nonexecution of the instrument propounded, nor to sus- 
tain an implication of forgery of the latter. Counsel for con- 
testant in support of this allegation claim that, in connection 
with their fourth ground of contest, that there is here a dis- 
tinct charge of forgery, but this is not as clear to the court as 
to the counsel. 

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 other causes are to go to the jury, 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 
embrace duress, menace, fraud, undue influence, due execu- 
tion and attestation, subsequent will or the lil^e, 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 stated, and the issues relating thereto submitted to 
the jury, to the end that the court, either upon demurrer to 
the statement of the grounds of contest, or upon the verdict, 
may determine whether, as a matter of law, such facts so 
pleaded or found constitute a valid reason why the proposed 



10 Coffey's Probate Decisions, Vol. 3. 

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 jnry ; 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 : Estate of Gharky, 57 Cal. 279. 

The fourth "ground of contest" is a conclusion, and as 
such cannot be connected as a statement of fact with this 
sixth ground. Demurrer sustained as to the sixth ground of 
contest. 

The count on fraud should be recast to correspond to the 
requirements of the code rules of pleading as interpreted 
by the supreme court. It is a well-known rule, says that 
tribunal, that in pleading fraud the facts must be clearly 
stated, so that the court may determine therefrom whether 
the charge is well founded: Estep v. Armstrong, 69 Cal. 538, 

11 Pac. 56. 

Counsel for contestants say that their pleading clearly 
states the facts of undue influence and fraud, "if forgery of 
a Vvill is fraud." But there is no specific allegation of fraud. 

It is urged that the will is unnatural as to the contestants ; 
but that does not constitute a ground of opposition, and does 
not enter into the issue of fraud or undue influence. A tes- 
tator of sound mind and free from restraint has a right to 
make a will, whether it be foolish, unnatural, capricious, or 
unjust : Estate of Donovan, 140 Cal. 394, 73 Pac. 1081 ; citing 
Estate of McDevitt, 95 Cal. 33, 30 Pac. 101, and Estate of 
Kaufman, 117 Cal. 289, 49 Pac. 192. 

Counsel for contestants say in their brief under the head of 
"Fraud," that it is alleged that this will of May, 1902, is not 
the will of decedent; that the original will was destroyed by 
fire, and that the document on file was procured by the fraud 
of Lawrence Harris and Vogelsang & Brown, attorneys. 
Here, say counsel, is a distinct charge of forgery which is 
made to state a fact connected with the allegation not demur- 
red to by proponents, namely, in paragraph 4: "That said 
alleged will is not the will of Clara Harris, deceased, and 
was never executed by her and was not her free act and 
deed." 

Counsel for contestants say that the demurrer does not at- 
tack this allegation nor the allegation 5 which alleges that 
decedent in J\Iay, 1902, was incompetent to make a will. 



Estate of Harris. 11 

As already seen, these allegations are assailed by the de- 
murrants in their grounds 1 and 2, which have been formally 
overruled, although paragraph 4 is a conclusion, and para- 
graph 5 is subject to some slight verbal criticism as to its 
form. In the opinion of the court the facts constituting the 
alleged fraud on the part of proponent and the complicity 
of his attorneys are not stated with the particularity re- 
quired by the authorities cited. 

The terms of the charges are general, and not pointed to the 
act itself. It is not sufficient to state the nature of the fraud, 
undue influence, or fraudulent representations, but the facts 
should be properly alleged: Estate of Clark, Myr. Rep. 265. 
These facts should be stated with sufficient certainty and pre- 
cision, and should be expressly connected with the testa- 
mentary act. 

The cases cited by contestants are mainly upon the evidence 
required and the presumptions indulged and not upon the 
pleadings. The distinction between what is pleadable and 
what is probative may be difficult; but it must be observed 
according to all the authorities. It is quite possible to re- 
construct this seventh ground of contest and free it from the 
objections advanced by the demurrer. The allegations of 
fraud and undue influence should be as positive, precise and 
particular as the nature of the case will allow. The mere 
fact that the beneficiary had an opportunity to procure a will 
in his own favor, or that he had a motive for the exercise of 
undue influence, does not raise a presumption of its exercise. 
Such exercise must be directly pleaded as bearing upon the 
testamentary act. 

Ross V. Conway, 92 Cal. 632, 28 Pac. 785, relied upon by 
contestants, was a case of a spiritual adviser who employed 
an attorney and directed his conduct in concocting the docu- 
ments disputed, and there were direct allegations connecting 
him in that confidential capacity with the execution of the 
instruments for the benefit of himself and his church. The 
question was whether he had used the influence which he had 
acquired over her bj^ virtue of being her spiritual adviser for 
the purpose of procuring her to make such disposition of her 
property, and the court declined upon the proof to uphold the 
transaction. The supreme court very properly said that the 
influence which the spiritual adviser of one who is about to 



12 Coffey's Probate Decisions, Vol. 3. 

die has over such person is one of the most powerful that can 
be exercised upon the human mind, especially if such mind is 
impaired by physical weakness, is so consonant with human 
experience as to need no more than its statement; and in any 
transaction between them wherein the ad\aser receives any ad- 
vantage, a court of equity will not enter into an investigation 
of the extent to which such influence has been exercised. 
Any dealing between them under such circumstances will be 
set aside as contrary to all principles of equity, whether the 
benefit accrue to the adviser or to some other recipient who, 
through such influence, may have been made the beneficiary 
of the transaction. In such case the testatrix should have 
had independent advice and be at arm's-length with the bene- 
ficiary. 

In the case under advisement the proponent was not a 
spiritual adviser, but a member of the family who acted in 
business affairs for the decedent, and it does not necessarily 
follow that his relation was such as to raise a presumption 
of undue influence, although evidence might establish that 
fact. 

That he was her son and lived in the same house with 
her for years and acted as her agent in certain business 
affairs does not import fraud or undue influence. It may 
have afforded an opportunity coexistent with a motive, but 
the law does not presume from the mere fact that there was 
an opportunity or a motive for its exercise, that it was used, 
that undue influence was exerted, for it is not a presumption, 
but a conclusion from the facts and circumstances established 
by proof under the pleading. 

The fact that the son transacted business as alleged is not 
of itself evidence of undue influence. Influence not brought 
to bear upon the testamentary act is not undue influence 
such as will operate to set aside a will on that ground. Un- 
due influence must, in order to have such eft'ect, destroy the 
free agency of the testatrix at the time and in the very act 
of making the testament'. It must bear directly upon the 
testamentary act: Estate of Donovan, 140 Cal. 394, 87 Pac. 
380. 

The demurrer to the seventh ground of contest should be 
sustained. 



Estate op Harris. 13 

Contestants say that the code does not demand that the 
evidence to be given at the trial be stated, and it points out 
clearly what is necessary in a pleading and how it shall be 
construed. The facts constituting the cause of action should 
be stated in ordinary and concise language. It does not say 
the evidence of those facts. It is the ultimate fact, and not 
the prior or probative facts, which should be set forth. Pre- 
sumptions of evidence cannot dispense with averments of 
ultimate facts. Probably no better statement can be made 
of what is required than that contained in the opinion of 
Mr. Chief Justice Field in Green v. Palmer, 15 Cal. 414, in 
which he engaged at length in a discussion upon this topic. 
The syllabus on page 412 of that volume is an accurate ab- 
breviation of the context. 

Under our system of pleading, facts only must be stated. 
This means the facts, as contradistinguished from the law, 
from argument, from hypothesis, and from the evidence of 
the facts. Those facts, and those only, must be stated, which 
constitute the cause of action or the defense. Each party 
must allege every fact which he is required to prove, and 
will be precluded from proving any fact not alleged; and he 
must allege nothing affirmatively which he is not required to 
prove. Negative allegations, however, are frequently neces- 
sary, though they are not to be proved. If every fact essen- 
tial to the claim or defense be not stated, the adverse party 
may demur; and if any fact not essential to the claim or 
defense — in other words, any except issuable facts — be stated, 
the adverse party may move to strike out the unessential 
parts. An unessential, or what is the same thing, an im- 
material allegation, is one which can be stricken from the 
pleading without leaving it insufficient, and need not be 
proved or disproved. Whether an allegation be material 
may be determined by the question, "Can it be made the 
subject of a material issue?" In other words, "If it be 
denied, will the failure to prove it decide the case in whole 
or in part?" If it will not, then the fact alleged is not 
material. All statements in a pleading must be concisely 
made, and when once made, must not be repeated. 

It is true that judicial construction must be liberal, and 
that no error or defect should be regarded unless it atfects 
substantial rights; but liberal construction must not incline 



14 Coffey's Probate Decisions, Vol. 3. 

to laxity where the rules of pleading are well established and 
have been so for many decades interpreted by the supreme 
courts, as in this class of cases. Substantial rights can be 
conserved only by adherence to those rules. 

The points raised by the demurrer in regard to paragraph 

7 of the contest do not seem to be technical ; if this court 

so regarded them, they would be overruled, but they appear 

to conform to the authorities requiring particularity in plead- 

■ ings of this kind. 

It has ever been the rule that it is essential to the issue 
that there shall be certainty, clearness, distinctness and par- 
ticularity^ in pleading. When it is said that the issue must 
be certain, the meaning is that it must be particular or 
specific as opposed to general. Each issue tendered must 
be single, certain and material in its quality. The allegations 
should be definite, precise and positive, so as to acquaint the 
respondent with the matter that he is called upon to traverse. 
These rules are recognized, adopted and universally approved 
by the courts, and need not be enlarged upon here: See 
Stephen's Pleading, Andrews' Am. ed. 1894, sees. 100-103. 

An allegation that influence was overpowering or that the 
testatrix was unable to resist, without the recital of the facts 
supporting such conclusion, is not sufficient. An allegation 
that "contestants are informed and believe" that a certain 
event occurred is not positive. The averment must be direct, 
although it may be based on such information and belief. 
The fact itself must be alleged in set terms. 

An allegation "on information and belief" that the will 
of Clara Harris was absolutely overpowered by the lies and 
misrepresentations of Lawrence Harris continued daily after 
the death of Stephen L. Harris in February, 1902, lacks 
certainty, under the rule, because it does not specify the lies 
nor particularize the species of misrepresentations which dom- 
inated the wiU of decedent. Allegations of fraud should 
state the facts suiScient to constitute the fraud, otherwise a 
special demurrer should be sustained: Scearce v. Glenn 
County, 100 Cal. 419, 35 Pac. 302. 

These are specimens of imputed infirmities in the pleading 
here demurred to, of which the court feels compelled to take 
notice and which may be cured by an amended contest. The 
court does not favor dilatory pleas, nor does it design to en- 



Estate of Harris. 15 

courage the demurrer habit, but there are certain well-recog- 
nized rules of pleading which it cannot, if it would, dis- 
regard. 

Paragraph 8 of the contest is subject to the foregoing re- 
marks, as all the allegations of 7 are incorporated therein, 
except, perhaps, the part beginning with line 17 on page 4 
down to and including line 18 on page 6. This seems to be 
fairly within the matters of Ruffino, 116 Cal. 301, 48 Pac. 
127, and Wilson, 117 Cal. 280, 49 Pac. 711. The contestants 
may introduce evidence of the manner of acquisition of the 
property disposed of in the will, as bearing in some degree, 
however remotely, on the question of testamentary capacity. 
The substance of this clause may be considered proper to sup- 
port evidence within the limitation suggested, although the 
form might be remodeled to correspond to the views of this 
opinion. 

Otherwise, the demurrer should be and it is sustained, with 
ten days within which to file an amended contest. 



The Principal Case in Denying the Power of the superior court in 
probate to appoint a guardian ad litem is important, in that it decides 
a question not infrequently raised and hitherto perhaps not free from 
doubt. The notes in the pages to follow have to do with guardians ad 
litem in civil actions generally, not in probate proceedings, and hence 
the authorities and statements therein are not to be construed as in any 
way modifying the decision of Judge Coffey in the principal case. 

RIGHTS, DUTIES, AND POWERS OF GUARDIAN AD LITEM. 

Power to Sue. — Infants, being persons under disability, cannot con- 
duct their own legal proceedings, and the usual custom is for them to 
appear either by next friend or guardian ad litem. Under a Missis- 
sippi statute, a guardian ad litem is considered the full representative 
of the rights and interests of the minor for the particular case in 
which he was appointed, and has the same pow'ers as a general guard- 
ian: Burrus v. Burrus, 56 Miss. 92; while in Pennsylvania a next friend 
of an infant, though recognized for certain purposes, is held not to 
have the power of a trustee or guardian: Turner v. Patridge, 3 Penr. 
& W. (Pa.) 172. 

A suit may be brought by the next friend of an infant without 
first obtaining leave of the court or of the infant: Bethea v. Mc- 
Call, 3 Ala. 449; Barwick v. Eaekley, 45 Ala. 215; O'Donnell v. 
Broad, 11 Pa. Co. Ct. 622, 1 Pa. Dist. Rep. 650. But see In re Whit- 
lock, 19 How. Pr. 380. He is, however, under the control of the 
court, and may be removed and another appointed if the interests 
of the infant require it: Ex parte Kirkman, 40 Tenn. (3 Head) 517. 
And in proceedings for the sale of real estate of a minor, the spe- 



16 Coffey's Probate Decisions, Vol, 3. 

cial guardian appointed was held to be an officer of the court; and 
that until he reached his majority, and the purchase money had in 
fact been paid over to him, and as long as it remained in the hands 
of the special guardian, the court had control over it and over all 
the proceedings in the application: In re Price, 67 N. Y. 231, affirm- 
ing 6 Hun, 513. 

Where a life insurance policy provided that in case of death the 
insurance should be paid to the children or their guardian, if under 
age, the guardian ad litem may sue therefor, and it need not be in 
the name of the general guardian: Price v. Phoenix etc. Ins. Co., 17 
Minn. 497, 10 Am. Eep. 166. 

Such Representative of an Infant can Act Only in the Matter for 
which he was appointed: Waterman v. Lawrence, 19 Cal. 210, 79 Am. 
Dec. 212. So a special guardian appointed to represent a minor in 
a private sale of land cannot bind him by a judgment in a suit 
brought by the guardian to compel a purchaser to take title: Arm- 
strong v. Weinstein, 53 Hun, 635, 6 N. Y. Supp. 148. His authority 
does not extend to bringing or prosecuting more than the one par- 
ticular action in which he was appointed: Kosso v. Second Ave. R. 
Co., 13 App. Div. 375, 43 N. Y. Supp. 216. Therefore a guardian ad 
litem cannot agree that a decision in one case shall determine that 
in another, although the same facts are involved, the same parties, 
and substantially the same points of controversy: McClure v. Farth- 
ing, 16 Mo. 109. Where such a guardian is appointed in an action 
for the settlement of a trust, he cannot bind the infant by a stipu- 
lation in regard to the expenditure of money coming from a totally 
distinct source: In re Kennedy's Estate, 120 Cal. 458, 52 Pac. 820. 

The Power of a Next Friend Commences with the suit; and he can 
therefore maintain a suit for such causes of action only as may be 
prosecuted without a previous special demand, unless the defendant 
has waived the necessity therefor: Miles v. Boyden, 20 Mass. (3 
Pick.) 213. His authority terminates with the judgment in the case: 
Davis V. Gist, Dud. Eq. (S. C.) 1; or with the minority of the infant: 
Lang V. Belloflf, 53 N. J. Eq. 298, 31 Atl. 604. 

The Acts of a Guardian Ad Litem are Binding on Infant parties for 
whom they are performed, when not impeached for fraud, collusion 
or gross misconduct: Smith v. Taylor, 34 Tex. 589. So if a party is 
served with process and a guardian ad litem is appointed to repre- 
sent him, who appears and files an answer, the ward is brought into 
court for all purposes of the suit and is charged with notice of all 
new pleadings that may be filed either by the original parties or any 
others who may come into the case; and he is bound by whatever 
judgment may be recovered by or against any person who was a party 
to the suit at the time of its rendition: Deering v. Hurt (Tex.), 2 S. 
W. 42. 

Duty to Make Vigorous Defense. — The law is exceedingly jealous in 
guarding the interests of infant suitors, and exacts of their next 



Estate of Harris. 17 

friends or guardians ad litem as vigorous a defense to the action as its 
nature will admit: Sconce v. Whitney, 12 111. 150; Rhoads v. Rhoads, 
43 111. 239; Tyson v, Tyson, 94 Wis. 225, 68 N. W. 1015. In Stunz v. 
Stunz, 131 111. 210, 23 N. E. 407, it is said: "It is the duty of the 
guardian ad litem, when appointed, to examine into the case and de- 
termine what the rights of his wards are, and what defense their in- 
terest demands, and to make such defense as the exercise of care and 
prudence will dictate. He is not required to make a defense not war- 
ranted by law, but should exercise that care and judgment that rea- 
sonable and prudent men exercise, and submit to the court for its 
determination all questions that may arise, and take its advice, and 
act under its direction in the steps necessary to preserve and secure 
the rights of the minor defendants. The guardian ad litem who per- 
functorily files an answer for his ward, and then abandons the case, 
fails to comprehend his duties as an officer of the court." See, also, 
Stammers v. McNaughten, 57 Ala. 277; Stark v. Brown, 101 111. 395. 
He cannot fail to plead just because the infants are necessary or 
improper parties: Farmers' etc. Trust Co. v. Reid, 3 Edw. Ch. 414. 
And if the interests of the minors are prejudiced through the failure 
of the guardian ad litem to raise a proper objection to an action he 
is liable to them therefor: Reed v. Reed, 46 Hun, 212, 13 Civ. Proc. 
Rep. 109. See, also, Banta v. Calhoun, 9 Ky. (2 A. K. Marsh.) 166. 

Making Prejudicial Admissions. — So far as concerns the substan- 
tial rights of his ward, a guardian ad litem can make no admissions to 
bind him, but everything must be proved against an infant: Hooper v. 
Hardie, 80 Ala. 114; Pillow v, Sentelle, 39 Ark. 61; Evans v. Davies, 
39 Ark. 235; Waterman v. Lawrence, 19 Cal. 210, 79 Am. Dec. 212; 
Cochran v. McDowell, 15 111. 10; Taylor v. Parker, 1 Smith (Ind.), 
225; Melton v. Brown, 20 Ky. Law Rep. 882, 47 S. W. 764; Benson v. 
Wright, 4 Md. Ch. 278; Burt v. McBain, 29 Mich. 260; Cooper v. May- 
hew, 40 Mich. 528; and this holds good both at law and in equity: 
Atchison etc, R. Co. v. Elder, 50 111. App. 276; Collins v. Trotter, 81 
Mo. 275. 

In Atchison etc. R. Co. v. Elder, 50 111. App. 276, an infant was 
injured in a railroad accident. His father, as next friend, entered 
into a compromise with the railroad company, whereby a suit was 
instituted, attorneys employed by the company preparing the papers. 
The matter was submitted to the court, without a jury and without evi- 
dence, and a judgment for plaintiff entered for $250, pursuant to the 
compromise. An amended declaration was filed, whereon a hearing 
was had and the recovery increased to $2,500. The appellate court af- 
firmed this judgment, holding that no estoppel applicable to the father 
could affect the infant. That a plaintiff in ejectment may be estopped 
from claiming land by recitals of ownership in a deed of his special 
guardian, see Esterbrook v. Savage, 21 Hun, 145. . 

Must Exclude Illegal Evidence. — If incompetent and illegal evi- 
dence is introduced, without any objection on the part of the guardian, 
Prob. Dec, Vol. Ill —2 



18 Coffey's Probate Decisions, Vol. 3. 

the court is bound to notice and exclude it: Cartwright v. "Wise, 14 HI. 
417; Turner v. Jenkins, 79 111. 228. And such guardian cannot consent 
to the taking of testimony before a person not properly authorized to 
take it: Fischer v. Fischer, 54 111. 231. 

A guardian ad litem should not consent to a general reference to 
a master to take an account against an infant, until he has ascer- 
tained that his rights can be protected on such reference: Jenkins v. 
Freyer, 4 Paige, 47. Where infants sue by their next friend to ob- 
tain a settlement of an administrator's account, an attorney employed 
by such next friend cannot bind the infants by an agreement to waive 
proof of the vouchers and accounts presented by the administrator, or 
^0 allow commissions other than allowed by law: Crotty v. Eagle, 35 
W., Va. 143, 13 S. E. 59. ^ 

Assenting to Acts not Prejudicial to the Infant. — While a next 
friend cannot admit or stipulate away any substantial rights of the 
minors whom he represents, he may assent to arrangements which will 
facilitate the trial, and the infant is bound thereby. So he may con- 
sent to a trial of the case at the first term of court: McMillan v. 
Hunnicutt, 109 Ga. 699, 35 S. E. 102. A similar question arose in 
Kingsbury v. Buekner, 134 U. S. 650, 10 Sup. Ct. 638, where Justice 
Harlan, speaking for the court, said: "It is undoubtedly the law in 
Illinois, as elsewhere, that a next friend or guardian ad litem, cannot, 
by admissions or stipulations, surrender the rights of the infant. 
The court, whose duty it is to protect the interests of the infant, should 
see to it that they are not bargained away by those assuming, or 
appointed, to represent him. But this rule does not prevent a guard- 
ian ad litem or prochein ami from assenting to such arrangements as 
will facilitate the determination of the case in which the rights of the 
infant are involved. There is but one supreme court of Illinois, al- 
though for the convenience of litigants it sits in different places in 
that state, and, unless the consent of parties is given, can take cogni- 
zance, when holding its session in a particular grand division, only of 
cases arising in such division. But it is the same court that sits in 
the respective divisions, and a consent by the next friend or guard- 
ian ad litem that a case be heard i;i a particular division could not 
possibly prejudice the substantial rights of the infant. It is true that 
the consent of the plaintiff's next friend and guardian ad litem, that 
the case should go to the central grand division, brought it to a more 
speedy hearing than it would otherwise have had, if such consent had 
not been given. But, certainly, it was not to the interest of the plain- 
tiff that the final determination of his case should be delayed." So he 
may consent to the removal of a cause from one court having juris- 
diction thereof to another court of like jurisdiction: Lemmon v. Her- 
bert, 92 Va. 653, 24 S. E. 245, citing Morriss v. Virginia Ins. Co., 85 
Va. 588, 8 S. E. 383. And he may, in his answer, admit such facts as 
do not tend to prejudice his ward: Ealston v. Lahee, 8 Iowa, 17, 74 
Am. Dec. 291. He may also stipulate as to the condition of a bank 
account and so obviate the necessity of introducing the bank books in 



Estate of Harris. 19 

evidence, such not prejudicing the infant: Karick v. Vandovier, 11 
Colo. App. 116, 52 Pac. 743. In Biddinger v, Wiland, 67 Md. 359, 
10 Atl. 202, an infant defendant was regularly summoned, and, un- 
der the law then in existence, a commission to assign a guardian and 
take her answer was issued, and returned unexecuted. A second 
commission was issued, and also returned unexecuted. Meanwhile, 
and before the court, under the new rules, appointed a guardian to 
defend, the case being at issue as to other parties, adults, testimony 
was taken which fully established plaintiff's case. After that tes- 
timony was taken and returned, the court appointed a solicitor of 
the court to answer and defend for the infant, who did so, submit- 
ting the infant's rights to the protection of the court. It was then 
agreed in writing between the plaintiff's solicitor and the guardian, 
that the case should be submitted without argument to the court, the 
testimony already taken to have the same effect as if taken by the 
examiner after the infant 's answer had been filed. This agreement 
was objected to as unauthorized, but the court held it proper; that 
the guardian must be presumed to have done his duty, and knew of no 
other testimony which could be procured in the infant's behalf; and 
the judgment was affirmed. 

A guardian may adopt a report of the division of land in a parti- 
tion suit, after the infants have been served, and so avoid the neces- 
sity for another division, where they were not made parties to the 
suit, and it was therefore reversed: Kentucky etc. Land Co. v. El- 
liott, 12 Ky, Law Eep. 812, 15 S. W, 518. 

Where by statute a different rule is prescribed as to the power of a 
guardian ad litem to admit material facts in the conduct of a trial, 
or to control the case with as full authority as the minor could if he 
were of full age, such guardian may bind his ward by stipulation in 
the nature of a waiver of proof: Le Bourgeoise v. McNamara, 82 Mo. 
189, affirming 10 Mo. App. 116. 

Power of Compromise. — The general rule undoubtedly is, that the 
next friend or guardian ad litem of an infant has no power to com- 
promise or settle the claim of his ward, and no agreement to that 
end can bind his ward, unless sanctioned by the court: Isaacs v. Boyd, 
5 Port. (Ala.) 388; Johnson v. McCann, 61 111. App. 110; Edsall v. 
Vandemark, 39 Barb. 589; and especially is this so after it has been 
prosecuted to a judgment: O'Donnell v. Broad, 2 Pa. Dist. Rep. 84; 
Fletcher v. Parker, 53 W. Va. 422, 97 Am. St. Eep. 991, 44 S. E. 422. 
So if a next friend commutes a debt or judgment due his infant ward, 
he is responsible for the amount thereof and interest: Forbes v. Mitchell, 
24 Ky. (1 J. J. Marsh.) 440; or the court may set aside such wrongful 
compromise: In re Etna, 1 Ware (462), 474, Fed. Cas. No. 4542. Where 
a next friend of minors died, and they inherited from him a greater 
amount of property than the judgment which he compounded, chancery 
will not prevent their looking to the judgment debtor, especially 
where the composition is of a doubtful nature, and make the debtor 



20 Coffey's Probate Decisions, Vol. 3. 

resort to the estate of the next friend: Miles v. Kaigler, 18 Tenn. (10 
Yerg.) 10, 30 Am. Dec. 425. 

In George v. Knox, 23 La. Ann. 354, an agreement was made by 
the attorney of the vendor of real estate with the curator ad hoc, 
who represented the vendee in a suit to rescind the sale, by which the 
vendee was to take the rents of the property during the time that 
he had it in possession as an equivalent for a part of the price that 
he had already paid. This agreement was held not binding on the 
vendee, the curator ad hoc not being authorized to make it. 

While holding that a next friend cannot enter into a compromise 
made out of court and not approved by the court, or where judgment 
is not entered in pursuance thereof, the case of Tripp v. Gifford, 155 
Mass. 108, 31 Am. St. Rep. 530, 29 N. E. 208, is to the effect that a 
fair adjustment in court is allowable. It is there said: "We see 
no reason why the next friend should not have authority to institute 
or to entertain negotiations for a settlement of the controversy. His 
position with reference to it is like that of a general guardian, or the 
guardian ad litem of an infant defendant. It is to be expected that 
he will act fairly and intelligently for the real interest of the plaintiff; 
but it cannot be said that every suit brought in the name of the 
infant is upon a good cause of action, or that, if well brought, the just 
amount of the recovery cannot be arrived at without a trial, or that 
when the next friend and the defendant, and their respective counsel, 
who are sworn officers of the court, act in good faith, it is necessary 
that an investigation of the fairness of a proposed adjustment should 
be made or ordered by the court before disposing of the cause. The 
next friend is intrusted with the rights of the infant so far as they 
are involved in the cause, and acts under responsibility both to the 
court and the plaintiff. It may well be considered to be within his 
official duty to negotiate, if possible, a fair adjustment, without sub- 
jecting the plaintiff to the expense and risk of a trial." 

Power to Arbitrate Claim. — A guardian ad litem or next friend can- 
not bind his wards by submitting the suit in their name to arbitra- 
tion; but it is his duty alone to conduct the suit in court: Fort v. 
Battle, 21 Miss. (13 Smedcs & M.) 133; Hannum v. Wallace, 28 Tenn. 
(9 Humph.) 129; Tucker v. Dabbs, 59 Tenn. (12 Heisk.) 18. 

Power to Eeceive Money Recovered and to Satisfy Judgment. — The 
weight of authority is to the effect that a next friend has no authority 
to receive the money recovered in the action prosecuted by him, 
his power of representation ending with the suit; and for the same 
reason he cannot enter satisfaction on the record: Isaacs v. Boyd, 
5 Port. (Ala.) 388; Smith v. Eedus, 9 Ala. 99, 44 Am. Dec. 429; Glass 
V. Glass, 76 Ala. 368; Westbrook v. Comstock, Walk. Ch. (Mich.) 
314; Carpenter v, Schermerhorn, 2 Barb. Ch. 314; Miles v. Kaigler, 
18 Tenn. (10 Yerg.) 10, 30 Am. Dec. 425; American Lead Pencil Co. 
v. Davis (Tenn.), 67 S. W. 864. Therefore, a judgment for the plain- 
tiff, a minor, for personal injuries, should not direct payment of the 
money to his next friend, but should require it to be deposited with 



Estate of Harris. 21 

the clerk of the court, and hy him paid to the minor's guardian: 
City of Austin v. Colgate (Tex. Civ. App.), 27 S. W. 896. Where 
by statute it is provided that any judgment recovered by a minor not 
exceeding $500 may, if he have no guardian, be taken charge of by 
his next friend, such next friend has no authority to receive a 
recovery of a sum exceeding that amount: Gulf etc. Ry. Co. v. Younger, 
19 Tex. Civ. App. 242, 45 S. W. 1030. 

If a next friend admits sa'tisfaction of judgment on the record, 
it will be set aside in equity at the suit of the plaintiff therein after 
he has attained his majority: Cody v. Roane Iron Co., 105 Tenn. 515, 
58 S. W. 850. There the court, after stating the general rule that a 
payment made to the next friend will not operate as a satisfaction, 
continued: "Hence the payment made to the next friend of this com- 
plainant was and is, in legal contemplation, the same as no payment 
at all. 

"Such being true, the case now before the court is one in which 
there is a recited satisfaction in the face of a judgment where, in 
fact and in law, no satisfaction has been had, and that recitation, 
if allowed to stand, must inevitably preclude the complainant from 
the collection of his recovery, and thereby work a great wrong and 
fraud upon his confessed and adjudged rights. 

"It is the peculiar province and pride of a court of equity to 
vouchsafe all needed and appropriate relief in such a case. 

"It cannot be said against the complainant that he has been guilty 
of any wrong or fault at any point. The loss, if any, to be sustained 
through the payment already made, is due alone to the joint and 
illegal act of this defendant and the next friend, each of whom was 
charged with knowledge that such payment was wholly unauthorized 
in law; and it is better, if sueb be the ultimate result, that a partici- 
pant in that act pay twic*, than that the only person entitled to the 
money, and who is entirely innocent, should not be paid at all." 

Payment to a prochein ami may, however, be legal satisfaction of 
recovery if ratified by the minor after attaining his majority or his 
legal representative after his death: Allen v. Roundtree, 1 Spear (S. 
C), 80. 

The minority view holds that the next friend may receive the 
recovery, give a sufiicient acquittance and satisfy the judgment: 
Baltimore etc. R. Co. v. Fitzpatrick, 36 Md. 619; O'Donnell v. Broad, 
2 Pa. Dist. Rep. 84; and it may be paid to his regularly appointed 
attorney, but the right of the next friend or his attorney to receive 
the money is subordinate to that of the regular guardian: Baltimore 
etc. R. Co. V. Fitzpatrick, 36 Md. 619. See, also, Stroyd v. Traction 
Co., 15 Pa. Super. Co. 245. 

In Cody v. Roane Iron Co. (Tenn.), 53 S. W. 1002, affirmed, 105 
Tenn. 515, 58 S. W. 850, it is held that though a next friend has no 
right to take the money paid him out of court, he may acknowledge 
■a tisf action on the record; that the proper course is for the court to 
direct the money to be paid into court, for the purpose of being 



22 Coffey's Probate Decisions, Vol. 3. 

subsequently paid out to the regular guardian, or of being lent out un- 
der order of court for the benefit of the infant. 

Power to Contract for Legal Services. — Where it is for the in- 
fant's benefit that counsel be employed, the guardian ad litem or next 
friend may do so: Glass v. Glass, 76 Ala. 368; Baltimore etc. E. Co. 
V. Fitzpatrick, 36 Md. 619; Colgate v. Colgate, 23 N. J. Eq. 372, 
But see In re Johnston, 6 Dem. Sur. (N. J.) 355, holding that a guard- 
ian ad litem in the surrogate's court will employ counsel at his own 
expense. 

There is a conflict as to whether such guardian may enter into a 
contract for the services of an attorney. In Yourie v. Nelson, 1 
Tenn. Ch. 614, it is held to be his duty to make a contract with 
counsel for professional services, or agree with him as to his com- 
pensation, and such expenses fall under the head of just allowances 
to which fiduciaries are entitled. Other cases take an opposite view, 
under which he cannot bind his ward by a contract for attorney's 
fees: Cole v. Superior Court, 63 Cal. 86, 49 Am. Eep. 78; Houck v. 
Birdwell, 28 Mo. App. 644. In the former of those cases it is said: 
"The guardian ad litem is an officer of the court appointing him; 
his duties 'are to represent the infant, insane or incompetent person 
in the action or proceeding': Code Civ. Proc, sec. 372. He may, 
doubtless, employ an attorney to assist him in the prosecution or de- 
fense of the action, but he may not make a contract for the pay- 
ment of compensation which shall absolutely bind the ward or his 

estate His powers are certainly no greater than those of a 

general guardian. Like the latter he may be allowed a credit for 
moneys advanced or paid out of the fund collected, as reasonable 
compensation for the expenses, and for the services of an attorney. 
But he has no power by specific agreement with the attorney to fix 
such compensation absolutely. An attorney accepting employment, 
and rendering services under such circumstances, must rely upon the 
subsequent action of the court in ascertaining and adjusting proper 
compensation. He cannot determine the amount, nor can he retain 
what he or the guardian ad litem may deem a proper sum, leaving 
it to the general guardian to sue for the excess. There is no place 
here for the doctrine of an implied promise upon a quantum meruit. 
The presumption of a promise is rebutted by the fact that the guard- 
ian had no power to contract in such manner as to bind the assets 
of the ward except conditionally." 

Power to Purchase at Sale of Infant's Property. — The question has 
arisen as to how far a next friend or guardian ad litem is a trustee 
in such a sense as to be prohibited from purchasing the infant's 
property at a sale. The Kentucky courts hold that he is not such a 
trustee, and the rule does not apply: Mitchell v. Berry, 58 Ky. (1 Met.) 
602. In Spencer v. Milliken, 4 Ky. Law Eep. 856, it was held that a 
sale was not void because a guardian ad litem was the purchaser, 
the infant having been represented by a trustee who defended for 
him. 



Estate of Harris. 23 

The decisions of the other courts, however, consider a guardian ad 
litem as a trustee within the meaning of the rule, and will not up- 
hold a purchase by him at a sale of the infant's property: Collins 
V. Smith, 38 Tenn. (1 Head) 251; Starkey v. Hammer, 60 Tenn. (1 
Baxt.) 438; Gallatian v. Cunningham, 8 Cow. 361; nor can he acquire 
the property of infant heirs pending a litigation in respect to it: 
Massie v. Matthews, 12 Ohio, 351. 

The rule prohibiting a purchase by a guardian ad litem, not made 
for the benefit nor in behalf of his infant wards, is absolute, and it 
mates no difference that the purchase was made, not for the guard- 
ian's own benefit, but for that of some other person: Le Fevre v. 
Laraway, 22 Barb. 167. The presumption in the case of a purchase 
by the guardian ad litem is that it is for his benefit, and the burden is 
on him to show that it was made for the infant's good: O'Donoghue 
V. Boise, 92 Hun, 3, 37 N. Y. Supp. 961. That the remedy of infants 
against persons purchasing from their guardian ad litem, who bought 
the property at a sale, is, in the absence of any statutory provision, 
in equity, and hence voidable and not void, see Dugan v. Denyse, 13 
App, Div. 214, 43 N. Y. Supp. 308. 

Power to Waive Service of Process. — As a general rule, a guardian 
ad litem cannot waive service of process: Bobbins v. Eobbins, 2 Ind. 
74; Pugh V. Pugh, 9 Ind. 132; Cormier v. De Valcourt, 33 La. Ann. 
1168. So the answer of guardian ad litem does not make his wards 
parties and dispense with the necessity of services of process: Frazier 
V. Pankey, 31 Tenn. (1 Swan) 75. In Hannum v. Wallace, 28 Tenn. 
(9 Humph.) 129, however, it was held that, if not prejudicial to their 
interests, the guardian might waive service of a copy of the declara- 
tion and notice, thus saving delay and a useless accumulation of 
costs. 

In Banta v. Calhoun, 9 Ky. (2 A, K. Marsh.) 166, it was held that 
if the guardian appeared, it was not necessary for process to be 
served on the infant. And where a minor has been served with cita- 
tion, and a guardian ad litem appointed for him, such guardian may 
waive notice of citation, and consent to a hearing: Pollock v. Buie, 
43 Miss. 140. Where a warning order published against a minor de- 
fendant was not entirely definite as to the place at which he was 
warned to apjjear, and a guardian ad litem was appointed by the 
court, who filed an answer for his ward, it was held that the notice 
and appearance were sufficient to bind the latter: Williams v. Ewing, 
31 Ark. 229. 

Right to Appeal. — A guardian ad litem may and should appeal when- 
ever, in his opinion^ it is necessary to protect his ward's interest: 
Sprague v. Beamer, 45 111. App. 17; Loftis v. Loftis, 94 Tenn. 232, 28 
S. W. 1091; Tyson v. Tyson, 94 Wis. 225, 68 N. W. 1015; and leave of 
the court is not necessary: Jones v. Eoberts, 96 Wis. 427, 70 N. W. 
685, 71 N. W. 883. 

Under a statute restricting the right of appeal to parties to a suit, 
a guardian ad litem may be a party thereto, and as such has the right 



24 Coffey's Probate Decisions, Vol. 3. 

of appeal on behalf of the infants, to protect or advance their inter- 
ests: Thomas v. Safe Deposit etc. Co., 73 Md. 451, 21 Atl. 367, 23 
Atl. 3. In Harlan v. Watson, 39 Ind. 393, it is held that such a guard- 
ian cannot appeal in his own name. 

Power to Make Oath for Infant. — ^The next friend of an infant may 
verify a pleading in the action in which he is acting: Turner v. Cook, 
36 Ind. 129; and he may make an affidavit in replevin: Wilson v. 
Me-ne-chas, 40 Kan. 648, 20 Pac. 468; and also for an attachment, and 
stating therein that he has commenced the action as next friend suffi- 
ciently avers the agency: McDowell v. Nims, 15 Week. Law Bull. 
(Ohio) 359. 

Duty to Use Good Faith. — A guardian ad litem must act toward the 
infant whom he represents in good faith: Spelman v. Terry, 74 N. Y. 
448, In that case a special guardian attempted to make use of an in- 
valid claim and to put a purchaser of such claim from him in possession 
of land of an infant. The court condemned any such action in the 
following words: "We do not hold that one appointed special guard- 
ian to sell infants' real estate, who then holds a valid encumbrance 
upon or a claim against the same, thereby loses his rights in his en- 
cumbrance or claim, or is to forego the sale of it to his own advantage. 
What we do hold is, that he may not, after he is appointed, so use 
an invalid claim held by him as to put a purchaser of it from him into 
possession of the lands; whereby an action of ejectment is made 
necessary to regain possession by the one lawfully entitled. It is 
an act in hostility to the interests of his ward, and inconsistent with 
the duty he owes. For the damage from such act he should make 
just compensation. Such rule is a branch of the principle that one 
holding a relation of trust to another cannot deal with the trust es- 
tate or fund to his own profit and the harm of the cestui que trust." 
If the next friend plays his infant ward false, the judgment is not 
thereby rendered void, but the defrauded plaintiff may resort to a 
court of equity to set aside and undo the fraudulent work and to 
wipe out the record, falsely obtained, by which he is confronted: 
Cudleigh v. Chicago etc. Ry. Co., 51 111. App. 491. 

In Ivey v. McKinnon, 84 N. C. 651, it is held that if in partition 
proceedings the interest of a prochein ami is adverse to that of the 
infant, a decree therein will not on that account be disturbed unless 
fraud or collusion is established. Where an infant sues a guardian 
personally for positive and specific fraud, no prior accounting from 
the guardian is necessary, as it is where an action upon a guardian's 
bond against his sureties is sought to be brought: Koch v. Le Frois, 
61 Hun, 205, 15 N. Y. Supp. 928. It is not a badge of fraud that a 
decree, rendered on a certain day, was entered as of a week previous, 
without objection from the guardian ad litem; nor that he failed to 
apply for a rehearing: Kingsbury v. Buchner, 134 U. S. 650, 10 Sup. 
Ct. 638. And taking a second mortgage by a special guardian is 
not wrongful, nor necessarily a breach of trust, where appointed for 



Estate of Harris. 25 

the sale of infants' lands: Monroe v. Osborne, 43 N. J. Eq. 248, 10 
Atl. 267. 

Miscellaneous Eights and Duties. — The powers of a guardian ad litem 
are strictly limited to the matter before the court. Hence he cannot 
bind his ward by a release, to qualify a witness to testify: Walker v. 
Ferrin, 4 Vt. 523; nor can he make a demise in ejectment: Massies 
V. Long, 2 Ohio, 287, 15 Am. Dec. 547. He cannot consent to a sale 
of his ward's real estate to satisfy notes for purchase money, before 
their maturity: Melton v. Brown, 20 Ky. Law Rep. 882, 47 S. W. 764. 
If, however, a sale of the minor's property is for his benefit, it will 
not, without complaint on his part, be set aside on the application of 
the purchaser: Curd v. Bonner, 44 Tenn. (4 Cold.) 632. Where a 
special guardian of infants entered into a contract of sale conjointly 
with the adult owners, and the deed tendered the purchaser was exe- 
cuted by the guardian jointly with the other owners, it was held no 
objection, the fact that other parties owning other interests joined 
in the same contract and deed not depriving either instrument of its 
binding effect upon all concerned: O'Reilly v. King, 28 How. Pr. 408. 

Where an order is made by a court of chancery appointing a guard- 
ian for certain infants, and authorizing him to cancel a bond and 
mortgage belonging to them, upon receiving another one on unen- 
cumbered real estate, this latter provision is a condition precedent 
to his discharging the bond and mortgage, and he has no right to do 
so unless he receives the security mentioned in the order: Swarthout 
V. Swarthout, 7 Barb. 354. 

A replevin bond in a suit by an infant is valid, though executed 
by his next friend as one of the two sureties required by statute, he 
not being a party, but in the nature of an attorney: Anonymous, 2 
Hill, 417. He may elect to bring the infant's estate into hotchpot: 
Andrews v. Hall, 15 Ala. 85. 

Where a mortgage is given to the special guardian of an infant 
for the latter 's benefit, such special guardian is the proper person to 
file a bill for the redemption and assignment of a senior mortgage 
upon the same premises: Pardee v. Van Anken, 3 Barb. 534. The in- 
vestment of infant's money by a guardian ad litem in the capital 
stock of a bank is legal, though it afterward fail: Haddock v. Plant- 
ers' Bank, 66 Ga. 496. 

A next friend falls within the principle that statements made in 
the course of judicial proceedings with regard to third persons are 
conditionally privileged and not actionable if made without malice, 
with probable cause, and under such circumstances as to reasonably 
create the belief that they were true: Euohs v. Backer, 53 Tenn. (6 
Heisk.) 395, 19 Am, Rep. 598. 



26 Coffey's Probate Decisions, Vol. 3. 



Estate op JAMES IMcGINN, Deceased. 

[No. 7,054; decided April 20, 1889.] 

Jurors — Consideration of Rejected Evidence. — Jurors should banish 
from their minds all evidence ordered stricken out by the court in 
the course of the trial, all questions -which the court ruled should 
not be answered, and all remarks of counsel in presenting or arguing 
such matters for the consideration of the court. (Court's Charges 
A, B.) 

Jurors — Consideration of Testimony Stricken Out. — If proof of an 
essential fact is dependent upon testimony stricken out by the court, 
such essential fact must be considered by the jury as not proved. 
(Court's Charge B.) 

Jurors — Consideration of Question When Evidence Stricken Out. — 
If proof of an essential fact in an issue submitted to a jury is ren- 
dered incomplete because of testimony struck out by the court, the 
jury must consider such fact as unproved, unless the defect of proof 
is supplied by other testimony. (Court's Charge B.) 

Jurors — Weight of Testimony and Credibility of Witnesses. — Any 
Remark or Statement by the Court during the course of a trial by 
jury, which concerns the weight of testimony or the credibility of a 
witness, or any matter within the jury's province, should be utterly 
disregarded by the jury; a consideration of it in reaching their ver- 
dict would be error. (Court's Charge C.) 

Special Verdict — Instruction as to Form. — Special Verdicts with 
blanks to be filled out by the jury, by way of answer to each issue. 
(Court's Charge D.) 

Special Verdict — Instruction as to Manner. — Reaching and return- 
ing verdict by a jury; and duty as to required information touching 
evidence or law during the deliberations. (Court's Charges E, F.) 

Will Contest — Verdict of Jury. — "Whenever three-fourths of a jury 
on a will contest agree on an answer to an issue, it becomes the 
jury's verdict on that issue; and whenever three-fourths agree on a 
verdict, the jury must be conducted into court and the verdict ren- 
dered in writing by the foreman, whereupon, if more than one-fourth 
of the jurors disagree, upon polling, the jury must be sent out again, 
otherwise the verdict is complete. (Instruction 1. Court's Charges 
E, F.) 

Evidence. — Direct Evidence Proves the Litigated Fact in a direct 

manner, without (the necessity of) inference or presumption. (In- 
struction 4.) 

Evidence. — Indirect Evidence is Proof of a Fact other than the 
litigated fact, but which justifies an inference or presumption of the 
existence of the litigated fact. (Instruction 4.) 



Estate of McGinn. 27 

Evidence. — Indirect Evidence is of Two Kinds, namely, inference 
and presumption. (Instruction 4.) 

Evidence. — A Presumption is a Deduction Made by the Law from 
proof of particular facts. (Instruction 4.) 

Evidence. — An Inference is a Deduction Made by the Reason of 
the jury from proved facts; the law being silent as to the effect of 
such facts. (Instruction 4.) 

Evidence — Conclusive Presumption. — A Jury must Find a Fact in 
accordance with a conclusive presumption of law announced by the 
court. (Instruction XXVIII.) 

Evidence. — An Inference must be Founded upon a Fact Legally 
Proved, and upon such a deduction from that fact as is warranted 
by a consideration of the usual propensities or passions of men, the 
particular propensities or passions of the person whose act is in ques- 
tion, the course of business, or the course of nature. (Instruction 4.) 

Evidence — Weight and Reliability of Expert Testimony. — ^The testi- 
mony of experts (here medical witnesses) based upon hypothetical 
questions, is frequently unsatisfactory and often unreliable; and while 
accepted in law, and so requiring consideration, is not entitled to as 
much weight as are facts, especially in cases of conflict between 
opinion and fact. (Instruction XLV.) (This instruction is hardly in 
accord with Estate of Blalce, 136 Cal. 306, 70 Pac. 171, holding that it 
is the sole province of the jury to determine the credibility of experts 
and the weight to he given their testimony.) 

Evidence. — Experts and Opinion Evidence, Contrasted with Non- 
experts and nonopinion evidence (facts), and discussion as to char- 
acteristic differences in the certainty or uncertainty of the various 
subjects themselves, embraced within the domain of expert evidence. 
(Instruction XLV.) 

Evidence — Estimation According to Intrinsic Weight and Power to 
Produce. — Evidence is to be estimated not only by its own intrinsic 
weight, but also in view of the evidence which it is in the power of 
one side to produce, and of the other side to contradict. (Instruc- 
tion 3.) 

Evidence — Power to Produce. — Evidence Should be Viewed with 
Distrust when it appears that stronger and more satisfactory evidence 
was within the power of the parties to produce. (Instruction 3.) 

Evidence. — Jurors are the Exclusive Judges of the Credibility of 
each and every witness. (Instruction 3.) 

Evidence. — While Jurors are tlie Sole and Exclusive Judges of the 
value or effect of the evidence in a case, their power is not arbitrary, 
but subordinate to the rules of evidence and the exercise of legal 
discretion. (Instruction 2.) 

Will Contest. — The Failure of a Party to a Will Contest to be a 
Witness in his own behalf does not authorize a jury -to draw any 
inference therefrom. (Instruction XL VIII.) 



28 Coffey's Probate Decisions, Vol. 3. 

Evidence— Failure of Party to Testify.— There is No Presumption 
or inference of law from the default of a party to be a witness in his 
own behalf. (Instruction XLVIII.) 

Evidence — Failure of Party to Testify. — The Nonlegal Effect of the 
election of a party to an action or proceeding to refrain from eier- 
cising his right to be a witness in his own behalf only refers to the 
want of legal bearing upon the entire evidence in the case, as being 
thereby rendered weaker or stronger, or satisfactory or unsatisfac- 
tory; and has no application to the question of the quantum or totality 
of the evidence offered. (Instruction XLVIII.) 

Evidence. — In Determining the Weight and Credibility of the Tes- 
timony of a party to a will contest, a jury may take into considera- 
tion his interest in the result of the verdict, and all the circumstances 
of the case and environment of the party. (Instruction XL VII.) 

Evidence. — A Jury is not Bound to Decide in Conformity with the 
declarations of any number of witnesses which do not produce con- 
viction, as against a smaller number, or as against a presumption from 
the evidence of the latter which satisfies the minds of the jury. (In- 
struction 3.) 

Evidence. — A Witness is Presumed to Speak the Truth, but this pre- 
sumption may be rebutted by the manner in which he testifies, or the 
character of his testimony, or evidence affecting his character for 
truth, honesty and integrity, or evidence in contradiction of it. (In- 
struction 3.) 

Evidence. — If a Jury Believes that a Witness has Willfully Sworn 
Falsely upon a material matter, it may disregard his entire testimony 
except to the extent of its corroboration. (Instruction XL VI.) 

Wills — Subscription and Attestation. — A Will not Olographic or 
Nuncupative in Character may be set aside, if it was not subscribed 
and attested as prescribed by the Civil Code, section 1276. (Issues 1 
to 10, inclusive. Instructions VII, 6.) 

Wills — Lack of Testamentary Capacity. — A Will may be Set Aside 
if the testator was not of sound and disposing mind at the time of 
the alleged execution thereof. (11th Issue, Instructions VIII, 31, 58.) 

Wills— Undue Influence.— A Will may be Set Aside if made through 
undue influence exerted upon the testator by any beneficiary there- 
under, touching the subscription or publication of the will, or the 
making of any disposition therein. (12th Issue. Instructions XVII, 
5, 12.) 

Wills — Misrepresentation to Testator. — A Will may be Set Aside if 
made through fraudulent misrepresentation exerted upon testator by 
any beneficiary thereunder, touching the subscribing or publishing of 
the will, or the making of any disposition or provision therein, or the 
disherison of any heir. (13th Issue. Instructions XXXVI, 5, 13, 14.) 

WiUs— Fraud Against Testator.— A Will may be Set Aside if made 
through fraud practiced upon testator by any beneficiary thereunder, 



Estate of McGinn. 29 

touching the subscribing or publishing of the will, or the making of 
any disposition therein. (14th Issue. Instructions XL, 5, 14.) 

Wills — Insane Delusion. — A Will may be Set Aside if executed under 
a delusion or illusion, affecting the testator, as to any beneficiary or 
heir at law. (15th Issue. Instructions XLI, 40.) 

Wills — Revocation by Subsequent Will. — A Will may be Set Aside 
if, subsequent to the execution thereof, the testator duly executed 
another will which in express terms revoked all former wills. (ICth 
Issue. Instruction 7.) 

Wills — Revocation by Subsequent Will. — A Will may be Set Aside 
if, subsequent to the execution thereof, the testator revokes it (as 
prescribed by Civil Code, section 1292). (17th Issue. Instruction 7.) 

Will Contest. — The Decree Admitting a Will to Probate, in the First 
Instance, is not evidence as to any issue raised in a subsequent con- 
test, or of any fact contained in any issue. (Instructions 61, 62.) 

Will Contest. — The Respondent in a Will Contest must Establish by 
a preponderance of evidence the formal statutory execution of the 
propounded will, where the contestant has raised an issue as to the fact 
of execution. (Instruction 18.) 

Will Contest.— The Contestants in a Will Contest have the Burden 
of Proof as to establishing the issues raised by them; and this burden 
must be sustained by a preponderance of evidence. (Instructions VI, 
17, XXXVIII, XL.) 

Will Contest. — The Preponderance of Evidence is Determined not by 
the number of witnesses, but by a consideration of the opportunities 
of the several witnesses as to the subject matter of their respective 
testimony, their manner while testifying, their interest or lack of in- 
terest in the case, and the probability or improbability of their testi- 
mony in view of all the other evidence or circumstances of the case. 
(Instruction XLIX.) 

Separate Property. — All Property of a Married Man owned by him 
before marriage, and all property which he acquires during marriage 
by way of gift, bequest, devise or descent, together with the rents, 
issues and profits of all such property, is his separate estate. (In- 
struction I.) 

Separate Estate. — All Property of a Married Woman owned by her 
before marriage, and all property which she acquires during marriage 
by way of gift, bequest, devise or descent, together with the rents, 
issues and profits of all such property, is her separate estate. (In- 
struction I.) 

Community Property. — All Property Acquired During the Marriage 
by either husband or wife, which is not acquired by way of gift, be- 
quest, devise or descent, or as the rents, issues or profits of property 
so acquired, or as the rents, issues or profits of property owned by 
such spouse at the time of marriage, is community property. (Instruc- 
tions I, 60.) 



30 Coffey's Probate Decisions, Vol. 3. 

Commimity Property. — Upon the Death of a Married Man, the Com- 
munity Property devolves one-half to the surviving vrife, and the other 
half as follows: First, subject to the husband's testamentary disposi- 
tion; and, second, in the absence of such disposition by him, to his 
descendants, equally if in the same degree of kindred. (Instructions 
II, 60.) 

Community Property. — The Admission of a WiU to Probate does not 
Affect the Surviving Wife's statutory right to one-half of the com- 
munity property. (Instruction 60.) 

Minors. — The Father is Entitled to the Custody, Services and Earn- 
ings of his legitimate unmarried minor child, until its majority or 
marriage, provided he has not relinquished such right. (Instruction 
V.) 

Minors — Compensation for Services to Parent. — If a child remain in 
the father's home after reaching majority, continuing in the same 
services rendered during minority, there is no presumption of a con- 
tract or obligation by the father to pay therefor; an express agree- 
ment must be proved to create a liability. (Instruction V.) 

Wills — Eight of Owner to Dispose of Property. — The law places prop- 
erty wholly under the owner's control, and subject to such final dis- 
position as he chooses to make by will. (Instruction HI.) 

Succession. — AU Property of a Person, which is not effectually dis- 
posed of by his will, devolves upon the persons who are prescribed by 
the law as his legal successors. (Instructions II, III, IV, 60.) 

Wills — ^Who may Make and What may be Disposed of. — Every person 
over the age of eighteen years, if of sound mind, may by will dispose 
of all his estate, real and personal; provided that a married man, as 
to community property, has no power of testamentary clisposition as 
to the one-half thereof specially devolving upon his surviving wife. 
(Instructions II, III, 60.) 

Wills — Manner of Execution. — Every will, except a nuncupative 
will, must be in writing; and every will, other than olographic and 
nuncupative wills, must be executed and witnessed as provided in 
section 1276 of the Civil Code. (Issues 1 to 10, inclusive. Instruc- 
tion 6.) 

Wills. — The Paramount Eight of Testamentary Disposition is re- 
garded as one of the most sacred of rights, and as the most efficient 
means which a person has in protracted life or old age to command 
the attention due his infirmities. (Instruction XIV.) 

Wills. — The Paramoimt Eight of Testamentary Disposition gives 
the owner of property the right to elect and determine whether he 
will allow his estate to descend, upon his death, to the persons desig- 
nated by the law as his successors, or whether he will prevent such 
descent, and make a disposition by will. (Instructions III, IV.) 

Wills.— The Paramount Eight of Testam.entary Disposition Given 
by law is absolute; it is not subject to any power of prevention by 



Estate of McGinn. 31 

testator's children, or widow, excepting only as to the statutory rights 
of the widow, by survivorship, in the community property. (In- 
struction III.) 

Wills. — A Parent may Elect Whether to Allow His Estate to 
Descend by the law to his children equally, or dispose of it by will 
to one or more of his children to the exclusion of the others. (In- 
struction IV.) 

Wills. — Parents, as Well as All Other Testators, have the Absolute 
Eight to judge who are the proper objects of their bounty; and 
children have no right, legal or equitable, in the parent's estate which 
can be asserted against a competent parent's free act. (Instruction 
III.) 

Wills — Testamentary Capacity — Bodily Affliction. — The paramount 
right of testamentary disposition is not forfeited, nor subject to be 
defeated, because a person may have been stricken with apoplexy, or 
afflicted with hemiplegia or paralysis, or stutters or stammers in 
speech, or suffers from any bodily affliction. (Instruction XIV.) 

Wills — Immoral or Unjust Testator. — The paramount right of testa- 
mentary disposition is not forfeited, nor subject to deprivation, be- 
cause a person may be immoral or unjust. (Instruction XIV.) 

Wills. — Intellectual Feebleness or Weakness of the Understanding, 
of whatever origic, is not of itself a disqualification of the testa- 
mentary right. (Instruction X.) 

Will Contest. — Upon an Issue of Unsoundness of Mind in a will con- 
test the jury must determine, and the real point is, whether the tes- 
tator was or was not of sound and disposing mind at the precise time 
of the subscription and declaration of the instrument. (11th Issue. 
Instructions VIII, XIII, 31, 58.) 

Wills. — Unsoundness of Mind Embraces Every Species of Mental 

incapacity, from raging mania to that debility and extreme feeble- 
ness of mind which verges upon and even degenerates into idiocy. 
(Instruction 46.) 

Wills. — A Person is of Sound and Disposing Mind Who is in full pos- 
session of his mental faculties, free from delusion and capable of 
rationally thinking, acting and determining for himself. (Instruction 
8.) 

Wills. — A Person may be Said to be of Sound and Disposing Mind 
who is capable of fairly and rationally considering the character and 
extent of his property; the persons to whom he is bound by ties of 
blood, affinity or friendship, or who have claims upon him or may be 
dependent upon his bounty; and the persons to whom and the manner 
and proportions in which he wishes the property to go. (Instruction 
IX. And see XII, XVI, 8, 33, 34, 35, 36.) 

Wills. — A Partial Failure of Mind and Memory, even to a consider- 
able extent, from whatever cause arising, will not disqualify testator, 
if there remain sufficient mind and memory to enable him to com- 



32 Coffey's Probate Decisions, Vol. 3. 

prehend what he is about, and ability to realize that he is disposing 
of his estate by will, and to whom disposing. (Instruction XI.) 

Wills. — In Deciding as to Testamentary Capacity, It is the Soundness 
of Mind and not the state of bodily health that is to be considered. 
(Instruction XII,) 

Wills. — A Person's Bodily Health may be in a State of Extreme 
Imbecility, and yet he may possess testamentary capacity; i. e., suffi- 
cient understanding to direct the disposition of his property, (In- 
struction XII, And see 33, 36,) 

Wills. — Neither Old Age, Distress, nor Debility of Body Incapaci- 
tates to make a will, provided there remain possession of the mental 
faculties and understanding of the testamentary transaction. (In- 
struction XIII.) 

Wills — Injustice of as Showing Want of Testamentary Capacity. — 
The prima facie character of a will as just or unjust, equitable or in- 
equitable, is no test of testamentary capacity. (Instruction XV.) 

Wills. — Weakness of Mind is not the Opposite of Soundness of 
Mind; weakness is the opposite of strength, and unsoundness the 
opposite of soundness. (Instruction 8. And see XLI.) 

Wills. — A Weak Mind may be a Sound Mind, while a strong mind 
may be unsound. Illustration of men of contrasting grades of in- 
tellect. (Instructions 8, XLI.) 

Wills. — Neither Weakness nor Strength of the Mind determines its 
testamentary capacity; it is the healthy condition and healthy ac- 
tion — the even balance — ^which we denominate soundness. (Instruc- 
tion 8.) 

Wills. — There may be Partial Insanity, or Monomania Insanity, as 
to one or more persons or subjects, coexistent with soundness other- 
wise. (Instruction 8.) 

Wills. — In Cases of Partial Insanity or Monomania, the testa- 
mentary capacity is affected as to the subject matter of such un- 
soundness. (Instruction 8.) 

Wills. — Monomania Consists in a Mental or Moral Perversion, or 
both, as to some particular subject or class of subjects, whilst other- 
wise the person seems to have no such morbid affection. (Instruc- 
tion 9.) 

Wills. — Monomania has Various Degrees; in many cases the person 
is entirely capable of transacting business out of the range of his 
peculiar infirmity, and as to such matters may be entirely sound; while 
as to matters within the range of his infirmity he may be quite 
unsound. (Instruction 9.) 

Wills. — A Will Which is the Direct Offspring of Partial Insanity 
or monomania is invalid, notwithstanding the general capacity is un- 
impeached. (Instruction 9.) 

Wills. — ^Unsoundness of Mind may be the Result of Disease, Drunk- 
enness, or one of many other causes. (Instructions 10, 33, 36.) 



Estate of McGinn. 33 

Wills. — Drunkenness, to Result in Unsoundness of Mind, must over- 
come the judgment and unseat the reason, either temporarily — the 
litigated moment — or permanently. (Instructions 10, 33, 36.) 

Wills. — There are Two Conditions of Drunkenness Which may re- 
sult in mental unsoundness, viz.: Where a person is overcome by the 
delirium of intoxication, or where the use of intoxicants has been so 
extended and excessive as to permanently disable the mind; in either 
case the judgment must have been overcome and the reason unseated. 
(Instructions 10, 33, 36.) 

Wills. — The Commitment of a Person to the State Asylum for the 
Insane, on the ground of insanity, makes the legal presumption of 
continued insanity conclusive, where no evidence is offered to show 
restoration to mental sanity. (Instruction XXVIII.) 

Wills. — In Determining the Soundness of a Testator's Mind, it is 
the right and the duty of the jury to take into consideration the 
provisions of the will and the condition and nature of the estate dis- 
posed of; the condition, mental and physical, of the beneficiaries, 
their age, and whether dependent upon the testator's bounty; the 
relations between the testator and any excluded children, their age, 
condition and dependence upon his bounty, and their conduct toward 
him; and in connection with all other admitted evidence as to the 
testator's mental soundness. (Instructions XVI, 55.) 

Wills — Discrimination Against Children. — It will not be Presumed 
that a parent was of unsound mind because he discriminated between 
his children in his testamentary disposition. (Instruction IV.) 

Wills — Condition of Testator Before and After Execution. — The 
mental condition of the testator, before and after the alleged execu- 
tion of a will, is only important to throw light upon and show the 
actual mental condition at the time of execution. (Instructions XIII, 
58.) 

Will Contest — Effect of Admitting to Probate. — Upon the contest 
of a will after probate, the decree in the first instance admitting the 
will does not create anj^ presumption of law, nor is it evidence that 
the testator was mentally sound at the time of the execution. (In- 
structions 61, 62.) 

Wills. — If Mental Unsoundness Existed at the Time of Execution 
of a probated will, no act or declaration of testator, subsequent to 
the execution, could validate the same as a will. (Instruction 58. 
And see XIII.) 

Wills. — If Mental Unsoundness Existed at the Time of the Execu- 
tion of a will, the jury should disregard all evidence of sanity exist- 
ing at a subsequent date. (Instruction 58.) 

Wills. — The Issue of Undue Influence is Entirely Distinct from that 
of unsoundness of mind; and the principles governing each are entirely 
different. (Instruction 12.) 
Prob. Dec, Vol. Ill —3 



34 Coffey's Probate Decisions, Vol. 3. 

Wills— Undue Influence. — A Person of Sound Mind may be the 
victim of undue influence; so, also, may a person of unsound mind. 
(Instruction 12.) 

Wills — Undue Influence, Wliat Amounts to. — To define or exactly 
describe that influence which in law amounts to undue influence is 
not possible; it can be done only in general and approximate terms. 
The decision must be reached, in each case, by applying the general 
principles on the subject to the special litigated facts and their sur- 
roundings. (Instruction 12.) 

Wills — Undue Influence, What is not. — All influences are not un- 
lawful. Persuasion, appeals to the afi'ections, or ties of kindred, or 
sentiment of gratitude for past services, or pity for future destitu- 
tion or the like, are legitimate, and may be fairly pressed on a 
testator. (Instruction XIX.) 

Wills. — ^Undue Influence Consists in: The use, for the purpose of 
an unfair advantage, of a confidence reposed by another, or a real or 
apparent influence over him; or taking an unfair advantage of an- 
other's weakness of mind; or taking a grossly, oppressive or unfair 
advantage of another's necessity or distress. (Instructions XVII, 
XXIX, 11.) 

Wills. — Undue Influence is not that Influence which arises from 
gratitude, affection or esteem; but must be the control of another 
will over that of the testator's, whose faculties are so impaired that 
he has ceased to be a free agent, and submits and has succumbed to 
such control. (Instruction XVIII.) 

Wills — Undue Influence. — The Question for Determination upon an 
issue of undue influence over a testator is whether at the time of the 
alleged execution of the will he was free to do as he pleased, or was 
so far under the influence of the beneficiaries charged, or any of 
them, that the will is not his will, but is the will of one or more of 
the beneficiaries. (Instruction 12.) 

Wills — Undue Influence. — Before a WiU can be Set Aside upon the 
ground of undue influence, the jury must believe and find that at 
the execution of the will the mind of the testator was so under the 
control and influence of the beneficiaries charged, or some or one of 
them, that testator eould not, if he had wished, have made a will 
difl'erent from that executed. (Instruction XXXIV.) 

Wills — ^Undue Influence. — Before a Will can be Set Aside upon the 
ground of undue influence, the jury must believe that the testator 
had not at the time of the execution of the will sufficient strength of 
mind to resist the influence of the beneficiaries, and each of them, 
charged as undue. (Instruction XXXIV.) 

Wills. — Proof of Undue Influence must generally be gathered from 
the circumstances of the case; very seldom is a direct act of influence 
patent; persons intending to control another's actions, especially as 
to a will, do not proclaim the intent. (Instruction 12.) 



Estate of McGinn. 35 

Wills — Undue Influence, Circumstances Showing. — 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 will is such as would probably be urged upon 
him by those surrounding him; whether the persons who surrounded 
him were benefited by the will to the exclusion of formerly intended 
beneficiaries. (Instruction 12.) 

Wills, — Undue Influence is not a Presumption, but a conclusion 
from proven facts and circumstances, (Instructions XXXII, 
XXXIII.) 

Wills. — Undue Influence Should not be Fovmd upon mere suspicion, 
(Instruction XXXIII.) 

Wills. — Undue Influence cannot be Presumed; and it lies upon the 
contestants of a will to prove it by a preponderance of evidence. 
(Instructions XXXI, XXXII, XXXIII.) 

Wills. — The Law will not Presume Undue Influence from the mere 
fact of opportunity or a motive for its exercise; or because of the 
testator's mental or physical coudition; or because his children, or 
any of them, were excluded from the will. (Instruction XXXIII.) 

Wills — Undue Influence. — It is Only that Degree of Influence which 
deprives a testator of his free agency, and makes the will more the 
act of others than his own, which in law avoids it, (Instruction 
XVIII.) 

Wills, — Undue Influence must be Exerted upon the Very Act con- 
tested; it must be a present influence acting upon the testator's mind 
at the time of alleged execution, (Instruction XVIII,) 

Wills, — To Exert an Undue Influence the Person charged must be 
of sound mind, (Instructions XXIX, XXX, And see XXVIII.) 

Wills — Undue Influence Exercised by Lunatic. — Where a beneficiary 
under a will who was charged with having exerted undue influence 
over the testator had been adjudged insane at a date before the 
execution of testator's will, and there had been no judicial restora- 
tion to sanity, the jury were instructed that such beneficiary must be 
deemed incompetent to have entered into any agreement or con- 
spiracy with anybody. (Instructions XXX, XXVIII.) 

Wills, — Procuring a Will to be Made, Unless by Foul Means, is 
nothing against its validity. (Instruction XVIII.) 

Wills — What is not Undue Influence. — A will procured to be made 
by kindness, attention and importunate persuasion which delicate 
minds would shrink from, cannot on that ground alone be set aside. 
(Instruction XVIII.) 

Wills — ^What is not Undue Influence. — Neither advice, argument 
nor persuasion vitiates a will which is executed freely and from eon- 



36 Coffey's Probate Decisions, Vol. 3. 

viction, notwithstanding the will might not have been made but for 
such advice and persuasion. (Instruction XVIII.) 

Wills. — Influence Arising from Legitimate Family and Social rela- 
tions must be allowed to produce its natural result, even in the 
making of last wills; such influence being a lawful one. (Instruction 
XX.) 

Wills. — However Great may be the Influence Exerted by and 
through legitimate family and social relations, there is no taint of 
unlawfulness in it; and there can be no presumption of its actual 
unlawful exercise merely from the fact of its known existence and 
its manifest operation on the testator's mind as a reason for his 
testamentary dispositions. (Instruction XXI.) 

Wills. — The Influences Arising from Legitimate Family and Social 
relations are naturally very unequal and naturally productive of 
inequalities in testamentary dispositions, and no will can be con- 
demned because of their proved existence, and evidence in the will 
itself of their effect; for such influences are lawful in general, and 
the law cannot criticise and measure them so as to attribute to them 
their proper effect. (Instruction XXII.) 

Wills — Undue Influence. — A Wife has the Right to advise and to 
exercise her influence to move and satisfy the testator's judgment. 
(Instruction XXVII.) 

Wills — Undue Influence. — A Husband's Testamentary Disposition to 
a Wife cannot be denied effect because it was due to the influence 
she acquired over him by her good qualities and kind attention. 
(Instruction XXIII.) 

Wills — Undue Influence. — If a Wife Urge upon Testator the pro- 
priety of leaving her his property, and excluding others, it does not 
constitute undue influence. (Instruction XXVI.) 

Wills — Undue Influence. — If a Wife, by Her Virtues, has gained 
such ascendency over her husband and so riveted his affections that 
her good pleasures are law to him, such influence can never be ground 
for impeaching a will in her favor, even though it exclude the rest 
of the family. (Instruction XXIV.) 

Wills — Undue Influence. — Children may Exert Influence to induce 
the parent to make a will. (Instruction XXVII.) 

Wills — Undue Influence. — A Will cannot be Set Aside because it 
is the result of an undue fondness for one member of testator's 
family, or a causeless dislike for another. (Instruction XXV.) 

Wills — Undue Influence. — While a Person of Unsound Mind may be 
the victim of undue influence, the question as to any influence, or the 
character of it, becomes immaterial if the jury finds mental unsound- 
ness at the execution of the contested act — a probated will — there 
being an issue, also, as to soundness of mind. (Instruction 12.) 

Wills— Undue Influence.— The Court Instructed the Jury that their 
verdict upon the issue of undue influence must be "No," if they be- 



Estate of McGinn. 37 

lieved from the evidence that the will was prepared upon and ac- 
cording to testator's instructions, and was read to and understood 
by him, and accorded with his wishes; that at such times and at 
execution of the will he possessed sufficient mental strength and 
control of his faculties to determine such matters; and that if he 
had wished he could have made other disposal of his estate. (In- 
struction XXXV.) 

Fraud. — A Fraudulent Misrepresentation must Contain these ele- 
ments: materiality; falsity; knowledge of its falsity by the party 
making it, or want of reason by him for belief and lack of belief 
in its truth; intent to deceive; accomplishment of intent; resultant 
act of party deceived contrary to what it otherwise would have 
been. (Instructions XXXVI, XXXVII, XXXVIII, 13.) 

Wills. — A Fraudulent Misrepresentation Sufficient to Avoid a Will 
must have been made by a beneficiary, and have operated upon the 
testator, and so operated that the will would not have been made, 
or would have been different, except for misrepresentations. (In- 
structions 13, XXXVI, XXXVIII, XXXVII.) 

Fraud.' — The Materiality Essential to Characterize Misrepresentation 
as fraudulent in law is lacking if the transaction would have taken 
place without the representation. (Instruction XXXVII.) 

Fraud. — The Character of Materiality Essential to a Fraudulent 
misrepresentation must exist notwithstanding that there were no 
other inducements than the misrepresentation charged to cause the 
party to act as he did. (Instruction XXXVII.) ' 

Fraud. — Fraudulent Misrepresentations must be Proved as they 
are alleged; and only the acts alleged can be proved. (Instructions 
XXXIX, XXXVIII, 13.) 

Will Contest. — Upon an Issue of Fraudulent Misrepresentations in 
the execution of a will, a jury cannot raise a presumption of falsity 
as to a representation by a beneficiary. (Instruction XXXVIII.) 

Will Contest. — Upon an Issue of Fraudulent Misrepresentation in 
the execution of a will, the consideration of delusion or insanity is 
not involved. (Instruction 13.) 

Will — Fraud in Procuring. — A Testator may be of Sound Mind, and 
yet the victim of fraudulent misrepresentation, (Instruction 13.) 

Will Contest. — The Issue of Fraud in a Will Contest can be 
Established Only by proof of the commission of a fraud; the con- 
stituent facts, and of what the fraud consisted; the influence of the 
fraud upon the testator, and the execution of the will as its result, 
and that otherwise the will would have been different. (Instruction 
XL.) 

Will Contest. — The Actual Fraud Sufficient to Set Aside a Will 
must involve the commission by a beneficiary or with his connivance 
of some one of the acts set forth in section 1572 of the Civil Code, 



38 Coffey's Probate Decisions, Vol. 3. 

with intent to deceive the testator, or induce him to subscribe oi 
publish the will, or make a provision therein. (Instructions XL, 14.) 

Wills — Fraud in Procuring. — If a testator be circumvented by 
fraud, the testament is without legal force. (Instruction 1-i.) 

Wills. — Circumvention of a Testator by Means of Fraud is to be 
considered in the same light as "constraint by force," and will have 
the same effect in setting aside the will. (Instruction 14.) 

Wills — Fraud in Procuring. — ^Honest Intercession or Request is not 
prohibited; but it is otherwise as to those fraudulent and malicious 
means which secretly induce the making of testaments. (Instruction 
14.) 

Wills — Durens in Procuring Execution. — ^If a testator is compelled 
by violence, or urged by threats, to make a will (or part of it), it is 
ineffectual. (Instructions 14, 5.) 

Fraud. — Fraud is Never Presumed, but must always be proved. 
(Instruction XL.) 

Will Contest. — Proof Under the Issue of Fraud in a Will Contest 
must be confined to the particular fraud alleged. (Instruction XL.) 

Wills. — Delusion of Mind is to an Extent Insanity. The main 
character of insanity, in a legal view, is the existence of a delusion. 
(Instructions XLI, 37, 38, 40, 41, 42.) 

"Wills. — A Sound Mind is One WTioUy Free from delusion. (Instruc- 
tion XLI.) 

Wills. — It is not Strength of Mind, but Soundness of Mind, that is 
the test of freedom from delusion; a weak mind is sound if free from 
delusion. (Instruction XLI, and see X.) 

Wills. — Delusion Easts upon No Evidence, but is based on mere 

surmise. (Instruction XLIII.) 

Wills. — An insane delusion is the pertinacious belief in the ex- 
istence of something nonexistent, and acting upon the belief. (In- 
structions 15, XLI.) 

Wills. — Belief in Things Without Foundation in Fact, which no 
sane person would believe, is insane delusion. (Instructions 15, XLI, 
38, 42.) 

Wills — Insane Delusion. — Belief Based on Evidence, however slight, 
is not delusion. (Instruction XLII.) 

Wills — Insane Delusion. — A Person Who Against All Evidence and 
probability believes and supposes facts to exist which have no ex- 
istence, and who acts, though logically, on such assumption, is essen- 
tially mad or insane as to those matters; notwithstanding that as to 
other subjects he possesses reason, or acts or speaks like a sensible 
person. (Instruction 38.) 

Wills — Insane Delusion. — A Person may as to Some Subjects, and 
even generally, possess sufficient mind, memory and sense; while as to 



Estate of McGinn. 39 

his cliildron, or some of them, he may be unsound in mind. (Instruc- 
tions 39, 40.) 

Wills. — A Will can be Revoked or Altered in the manner and cases 
prescribed in section 1292 of the Civil Code. (Instruction 7.) 

Wills. — Subscribing Witnesses to a Will are not Required to be in- 
formed or have any knowledge of the contents of the instrument. 
(Instruction L.) 

Wills — Testamentary Capacity. — The Court Instructed the jury to 
return a verdict of unsoundness of mind, if they found that the tes- 
tator had not sufficient mind and memory to enable him to remember, 
weigh and consider the relations, connections and obligations of 
family and blood, and the claims of his disinherited children, 
whether resulting from excessive indulgence in intoxicants, apoplexy, 
paralysis or other disease, any mental delusion as to any of the 
children, or their filial affection, or any other cause. (Instructions 
33, 34, 35, 36.) 

Wills — Insane Delusion. — The Court Instructed the Jury to return 
a verdict of unsoundness of mind, if they found that the testator 
labored under a delusion as to any of his disinherited children; and 
that such delusion caused or affected the dispositive clauses of the 
will; although the testator might have been mentally sane as to 
everybody else. (Instructions 37, 41.) 

V/ills — Insane Delusion. — The Court Instructed the Jury to return 
a verdict of unsoundness of mind, as the result of insane delusion, 
if they found that the testator believed that his disinherited children 
hnd no affection for him, and that there was no foundation therefor, 
and that he could not be permanently reasoned out of such belief. 
(Instruction 42.) 

Will Contest — Finding as to Fact of Execution. — The court in- 
structed the jury that upon an issue contesting the formal execution 
of a will, they must return the year, month and date of signing, if 
they found the fact of execution. (Instruction VII.) 

This was a contest of a will after probate, instituted by two 
of the testator's six children by his first marriage. The will 
disposed of all the estate to his second wife and the five chil- 
dren of the second marriage. The contest was based upon 
every statutory ground against the validity of a propounded 
will, viz. : 1. The alleged will was never signed by testator ; 2. 
Testator never declared it to any witness; 3. Testator never 
requested the action or subscription of any person as wit- 
ness; 4. Testator was of unsound mind; 5. Testator was the 
victim of fraud; 6. Of fraudulent misrepresentation; 7. Of 
duress; 8. Of menace; and 9. Of undue influence. 



40 Coffey's Probate Decisions, Vol. 3. 

Issues were raised as to each of these grounds by all the 
beneficiaries, and also, separately, by the executors. 

The contest was had before a jury and occupied sixty- 
seven days of actual trial, beginning November 15, 1888, and 
ending April 20, 1889. There were seventeen special issues 
submitted to the jurj^ Each issue was answered against the 
contestants except the eleventh issue, the response to which 
declared the testator to have been of unsound mind. Upon 
the coming in of the jury's verdict, the court ordered the 
will set aside, and the previous probate annulled as to every- 
body, noncontestants as well as contestants. Afterward a 
motion for new trial was made, heard and denied, and an 
appeal taken to the supreme court. The judgment and order 
of Judge Coffey was affirmed on this appeal, sub nom. 
Clements v. McGinn, by opinion filed August 30, 1893 (33 
Pac. 920). 

In the meantime — since April, 1889 — the instructions 
given to the jury by Judge Coffey, in this case, had been 
used and approved by other judges in various will contests 
throughout the state. The affirmance by the supreme court 
may be taken as an approval of the entire instructions be- 
cause, while the appellants' instructions (proponents of the 
will) were not the subject of specific exception on the ap- 
peal, yet the refused instructions upon which the appeal was 
based necessitated an examination of all the instructions, as 
to which the supreme court said: "The instructions were 
voluminous, and presented to the jury the questions of law 
applicable to the case with great clearness." And the court 
further specially held that the instructions "given on behalf 
of contestants were proper." There is also a special discus- 
sion by the supreme court of the meaning of the legal phrases 
"sound mind" and "unsound mind," which renders of 
especial interest the elaborate instructions of Judge Coffey on 
this head. Two important rulings of Judge Coft'ey, apart 
from the instructions, were also sustained on the appeal, viz. : 
That where a will is set aside under a contest begun before 
the year after probate has elapsed, the will is absolutely 
annulled, and not merely set aside as to the contesting heirs. 
Also, that an objection to a witness on the ground of mental 
incompetency is a question of fact purely, and should be 



Estate of McGinn. 41 

determined with reference to the competency at the time of 
objection. 

Instruction XLV should be read with Estate of Blake, 136 
Cal. 306, 70 Pac. 171. 

The special issues submitted to the jury and the instruc- 
tions and special charge given by the court are here reported 
in toto. 

The respondents* allowed instructions are designated by 
Roman numerals, the contestants' by Arabic notation, and the 
court's own special charge by letters. 

James L. Crittenden, for contestants (Mary 'A. Clem- 
ents and Emma Burns). 

Smith & Murasky, for executors (Eugene McGinn and 
Joseph Byrne). 

Reddy, Campbell and Metson, for beneficiaries under will 
(Johanna McGinn and others). 

INSTRUCTIONS OF THE COURT. 

Allowed and Given on the Part of Respondents. 

I. All property of the wife owned by her before marriage, 
and that acquired afterward by gift, bequest, devise or 
descent, with the rents, issues and profits thereof, is her 
separate property. 

All property owned by the husband before marriage, and 
that acquired afterward by gift, bequest, devise or descent, 
with the rents, issues and profits thereof, is his separate 
property. 

All other property acquired after marriage by either hus- 
band or wife, or both, is community property. 

II. Upon the death of the husband, one-half of the com- 
munity property goes to the surviving wife, and the other 
half is subject to the testamentary disposition of the hus- 
band, and, in the absence of such disposition, goes to his 
descendants equally, if such descendants are in the same 
degree of kindred to the decedent. 

III. Every person over the age of eighteen years, of sound 
mind, may by last will dispose of all his estate, real and 



42 CoFrEY^s Probate Decisions, Vol. 3. 

personal; and such estate, not disposed of by will, is suc- 
ceeded to, if it be community property, in the manner 
described in the instructions last above given — that is to say : 
Upon the death of the husband, one-half of the community 
property goes to the surviving wife ; and, if there be no 
testamentary disposition by the husband of the other half, 
such half goes to his children, if there are any, in equal 
shares. 

From this you will see that every person over the age of 
eighteen years, of sound mind, is given the right to elect and 
determine whether he will allow his estate to go to his 
descendants in equal shares, as provided by law, or whether 
he will prevent such descent and succession and dispose [of 
it] by will. Every person has the right, by his last will and 
testament, to bestow his property on whomsoever he pleases, 
and his children cannot prevent such disposition of his prop- 
erty, for they have no right, either legal or equitable, in such 
estate, which can be asserted against his disposition of it by 
will. The law of the land has placed every person's estate 
wholly under the control of the owner, subject to such final 
disposition of it as he may choose to make by his last will 
and testament, limited only by the statutory rights of his 
widow. 

All parents have a right to judge as to who are the proper 
objects of their bounty ; and if free from undue influence and 
insane delusions, and of sufficient mental capacity, may give 
their property to any person whomsoever. 

IV. The law having conferred on every person over the age 
of eighteen years, and of sound mind, the right to elect and 
determine whether he will allow his estate to descend to his 
children in equal shares, or whether he will bestow his entire 
estate upon one or more of his children, to the exclusion of 
all others, it will not be presumed in law that he was insane, 
or of unsound mind, because he has exercised that right, and 
discriminated between his children in the disposition of his 
estate. 

V. The father of a legitimate unmarried minor child is 
entitled to its custody, services and earnings, until the major- 
ity or marriage of the child, unless the parent relinquishes 
such earnings or services. 



Estate op McGinn. 43 

If any child remain in the domicile of the father after at- 
taining its majority, and continne in the services in which 
it had been engaged prior to its majority, no contract or 
obligation on the part of the father will be presumed to pay 
for such services, unless an express agreement to that effect 
is proved. 

VI. The burden is upon the contestants in this proceeding 
to prove and establish the issues made herein, by a pre- 
ponderance of evidence, and, unless so established, you will 
find each and every issue against said contestants. 

VII. As to the Tenth Issue, you are instructed to deter- 
mine, from the evidence in the case, in what year and month, 
and on what date, the will in evidence was signed by said 
James McGinn, and set forth the month, year and day so 
determined upon, in your answer, if you should find that 
it was ever signed by said McGinn. 

VIII. Upon the Eleventh Issue, the court instructs you 
that you should determine, from all the evidence in the case 
bearing upon the question, whether the said James McGinn 
was of sound and disposing mind at the time of signing the 
instrument offered in evidence, and purporting to be the last 
will and testament of said James McGinn, and if you find. 
from the evidence, that he was of sound and disposing mind 
at the time the said instrument was subscribed by him, and 
when the said James F. Tevlin and James F. Smith signed 
their names to the same, your answer to said Eleventh Issue 
should be ''Yes." 

IX. A person may be said to be of sound and disposing 
mind who is capable of fairly and rationally considering 
the character and extent of the property to be disposed of, 
the persons to whom he is bound by ties of blood, affinity 
or friendship, or who have claims upon him, or who may 
be dependent upon his bounty, the persons to whom, the man- 
ner and proportions in which, he wishes the property to go. 

X. Intellectual feebleness alone, or mere weakness of the 
understanding — whether this condition of mind is brought 
about by natural causes, or the result of an injury or dis- 
ease — does not disqualify a person from making a valid will. 

XI. A partial failure of mind or memory, -even to a con- 
siderable extent, whether it arises from an attack of apoplexy, 



44 Coffey's Probate Decisions, Vol. 3. 

hemiplegia, or paralysis, or from any other cause, is not in 
itself sufficient ground for setting aside a will, if there still 
remain sufficient mind and memory to enable the testator to 
comprehend and understand what he is about, or what he is 
doing, and ability to understand that he is disposing of his 
estate by his will, and to whom he is disposing of it. 

XII. In deciding upon the capacity of the testator to make 
his will, it is the soundness of mind, and not the particular 
state of bodily health, that is to be attended to. The latter 
may be in a state of extreme imbecilit}^, and yet he may 
possess sufficient understanding to direct how his property 
shall be disposed of. 

XIII. Neither old age, distress, nor debility of body, in- 
capacitates to make a will, provided the testator has pos- 
session of his mental faculties and understands the business 
in which he is engaged. The real point in issue and for you 
to determine is, whether the testator was of sound or un- 
sound mind at the precise date of the making and execution 
of the will in question. "What his mental condition was be- 
fore and after executing the will is only important as it 
throws light upon his mind, and shows its actual condition 
when the will was executed. 

XIV. The law gives to every man of sound mind the fighf 
to dispose of his property by last will, and this is regarded 
as one of the most sacred rights and the most efficient means 
which he has, in protracted life or old age, to command the 
attention due to his infirmities, and a man cannot legally 
be deprived of this right and power because he may have 
been stricken with apoplexy, or afflicted with hemiplegia, or 
paralysis, or because he may stutter or stammer in speech. 
However that may be, a person cannot be deprived of it for 
any of the reasons stated, or because of any bodily affliction 
— whatever it may be. He may be moral or immoral, just 
or unjust — the right belongs to him, if he be of sound and 
disposing mind. 

XV. It makes no difference whether the will appears to 
your mind to be just or unjust, equitable or inequitable ; you 
are not for that reason to find that the testator was of un- 
sound mind; for a man may be of sound mind and strong 
mind, and yet be exceedingly unjust. 



Estate of McGinn. 45 

XVI. In determining the question of the soundness of mind 
of the testator, James McGinn, the jury have the right and 
it is their duty to take into consideration the provisions of 
the will itself, and the condition and nature of the estate 
disposed of; the condition, mental and physical, of the bene- 
ficiaries under the will, their age, and whether otherwise 
independent, or dependent upon the bounty of the testator; 
the relations between the testator and any children excluded 
from any benefit under the will, their age, condition, and 
whether dependent or independent of his bounty in the mat- 
ter of self-support, and their conduct toward him, in con- 
nection with all the other evidence that has been offered on 
the question as to whether the deceased was or was not of 
sound mind at the time of the execution of the will in evi- 
dence. 

XVII. The Twelfth Issue is: Was the signing or sub- 
scribing, or publication or acknowledgment of said instru- 
ment, or any part thereof or therein, or any one or more 
of the dispositions of the property in said instrument con- 
tained, made under or procured by, or made by or under 
any undue influence exercised by Johanna McGinn, the sur- 
viving wife of said James McGinn, Ellen Frances McGinn, 
the daughter of said James McGinn, and Joseph McGinn, the 
son of said James McGinn, or by either of them. 

Undue influence consists: 

1. In the use by one in whom a confidence is reposed by 
another, or who holds a real or apparent authority over him, 
of such confidence or authority, for the purpose of obtain- 
ing an unfair advantage over him; 

2. In taking an unfair advantage of another's weakness 
of mind ; or 

3. In taking a grossly unfair advantage of another's neces- 
sity or distress: Civ. Code, 1575. 

XVIII. The undue influence must be present influence act- 
ing upon the mind of the testator at the time of making his 
will, and the exertion of the undue influence upon the very 
act must be proved. 

Procuring a will to be made, unless by foul means, is 
nothing against its validity. A man has a right by fair argu- 



46 Coffey's Probate Decisions, Vol. 3. 

ment to induce another to make a will, and even to make it 
in his own favor. 

A will procured by honest means, by acts of kindness, at- 
tention, and by importunate persuasion which delicate minds 
would shrink from, would not be set aside on that ground 
alone. 

It is only that degree of influence which deprives a tes- 
tator of his free agency, and makes the will more the act of 
others than his own, which will avoid it. 

Neither advice or argument nor persuasion would vitiate 
a will made freely and from conviction, though such will 
might not have been made but for such advice and per- 
suasion. 

Undue influence is not such as arises from the influence 
of gratitude, affection or esteem ; but it must be the control 
of another will over that of the testator, whose faculties have 
been so impaired as to submit to that control, and that he 
has ceased to be a free agent, and has quite succumbed to 
the power of the controlling mind or will. 

XIX. All influences are not unlawful. Persuasion appeals 
to the affections or ties of kindred, to a sentiment of grati- 
tude for past services, or pity for future destitution or the 
like — these are all legitimate, and may be fairly pressed on 
a testator. 

XX. Lawful influence, such as that arising from legitimate 
family and social relations, must be allowed to produce its 
natural result, even in influencing last wills. 

XXI. However great the influence thus exerted may "be, 
it has no taint of unlawfulness in it, and there can be no 
presumption of its actual unlawful exercise, merely from 
the fact that it is known to have existed, and that it has 
manifestly operated on the testator's mind as a reason for 
his testamentary disposition. 

XXII. Such influences are naturally very unequal, and 
naturally productive of inequalities in testamentary disposi- 
tions ; and as they are also lawful in general, and as the law 
cannot criticise and measure them so as to attribute to them 
their proper effect, no will can be condemned because the 
existence of such an influence is proved, and because the 
wiU contains in itself proof of its effect. 



Estate of McGinn. 47 

XXIII. A wife cannot be denied the place accorded to her 
in her husband's will, because it was due to the influence 
which she acquired over him by her good qualities and kind 
attention in his lifetime. 

XXIV. If a wife, by her virtues, has gained such an 
ascendency over her husband, and so riveted his affections 
that her good pleasures are law to him, such influence can 
never be a reason for impeaching a will made in her favor, 
even if it exclude the residue of the family. 

XXV. A will cannot be set aside because it is the result 
of an undue fondness for some member of the testator's 
family, or a causeless dislike for another. 

XXVI. If a wife urged upon a testator the propriety of 
leaving her his property, and to exclude others, it does not 
constitute undue influence to vitiate the will. 

XXVII. The wife has the right to advise and to exercise 
her influence to move and satisfy the judgment of the testa- 
tor. 

And a son and daughter may exert some influence to induce 
the father to make a will. 

XVIII. The record of the commitment of Mrs. McGinn to 
the State Asylum for the Insane at Napa, California, on ac- 
count of her insanity, has been admitted in evidence. As 
appears by the record, Mrs. Johanna IMcGinn was committed 
to said Insane Asylum long prior to the alleged execution 
of the will offered in evidence. There is no evidence to prove, 
or tending to prove, that Mrs. McGinn has been restored to 
mental sanity, and, under the circumstances, it is a con- 
clusive presumption of law that she is, and hjis been ever 
since said order of commitment, insane, and it is your duty 
to find in accordance with said presumption — that is to say, 
that she has been, ever since said commitment, insane. 

XXIX. To constitute undue influence there must be an 
intention on the part of the person exercising it to take an 
unfair advantage of another's weakness of mind, or to take 
a grossly unfair advantage of another's necessity or distress. 
In order that such an intention may exist in the mind of 
the person exerting influence, it must appear that such person 
was at the time of sound mind, and capable of forming such 
intention. 



48 Coffey's Probate Decisions, Vol. 3. 

XXX. You are also instructed that by reason of the ad- 
judged insanity above mentioned of Mrs. Johanna McGinn, 
she must be deemed incompetent to enter into any agreement 
or conspiracy with any person or persons whomsoever. 

XXXI. Undue influence cannot be presumed, but must be 
proved in each case, and the burden of proving it by pre- 
ponderance of evidence lies on the contestants in this case. 

XXXII. Undue influence is not a presumption, but a con- 
clusion from the facts and circumstances proved. 

XXXIII. Undue influence is not to be presumed, nor 
should it be found upon mere suspicion, but upon facts 
proved to your satisfaction. The law will not presume, from 
the mere fact that there was an opportunity or a motive for 
the exercise of undue influence, nor is there any presumption 
of law, that undue influence was exerted, because of the men- 
tal or physical condition of the testator, or that his children, 
or any of them, were excluded from any benefit under his 
will. 

XXXIV. Before this will can be set aside, you must be- 
lieve and find from the evidence that at the time of the 
execution of the will the mind of James McGinn was so 
under the control and influence of his wife, Johanna McGinn, 
his daughter, Nellie McGinn, and his son, Joseph S. McGinn, 
or some one of them, that he could not, if he had wisihed, 
have made a will different from this. 

You must believe that he had not sufficient strength of 
mind to resist such influences exerted by them at the time 
of the execution of the will. 

XXXV. If you believe from the evidence that James Mc- 
Ginn gave the instructions to his attorney for the preparation 
of the will, that it was prepared according to those instruc- 
tions, that said will was read to him, that he heard it read, 
and knew its full contents, and understood its provisions, and 
that its provisions were in accordance with his wishes, and 
that at these times, and when the will was executed, he had 
sufficient strength of mind and control of his faculties to 
determine for himself that this will disposed of his property 
as he wished, and that he could if he had wished have made 
any other disposition of his estate, your answer to and ver- 
dict on the Twelfth Issue should be the word "No." 



Estate of McGinn. 49 

XXXVI. The Thirteenth Issue is: Wcas said James Mc- 
Ginn induced to sign said instrument, or to acknowledge, or 
publish, or declare the same to be his will, or to make any 
disposition of his property, or any provision therein con- 
tained, by the, or any, fraudulent misrepresentations or 
statements made to him, the said James McGinn, by Johanna 
]\IcGinn, the surviving wife of said James IMcGinn, Ellen 
Frances IMcGinn, the daughter of said James McGinn, or 
Joseph S. McGinn, the son of said James McGinn, or either 
of them? 

To constitute a fraudulent misrepresentation, it must be 
made wdth the intention of deceiving the person to whom it 
is made. The statement or misrepresentation must be false, 
and it must be known to the party making it to be so, or the 
party making it must have no reason for believing it to be 
true. 

XXXVII. The fraudulent misrepresentation must be ma- 
terial, and it is not material if the transaction would have 
taken place without it. 

A representation must be material, even though there were 
no other inducements to cause the party to act as he did. 
That is to say, the representations — if any were made in this 
case — must have been false; they must have been made with 
the intention of deceiving James McGinn; they must have 
had that effect, and they must have been such that the tes- 
tator, James McGinn, would not have made the will in ques- 
tion without them, or would have made a different will if 
such alleged misrepresentations had not been made. 

XXXVIII. You are not to presume that any false repre- r 
sentations were made to the testator by Johanna McGinn, 
Ellen F. McGinn, Joseph S. McGinn, or any of them, and 
you should find that no such representations were made un- 
less the contestants have proved by a preponderance of evi- 
dence : 

1. That the representations were made; 

2. What the representations were; 

3. That they were false; 

4. That the parties making them knew them to be false, 
or had no reason to believe them to be true, and did not 
believe them to be true; 

Prjb. Dec, Vol. II] — 1 



50 Coffey's Probate Decisions, Vol. 3. 

5. That they were made with the intention of deceiving; 

6. That they did deceive the testator, and cause him to act 
contrary to what he otherwise would have acted. 

XXXIX. The representations, if any were made, must be 
such as are alleged in the petition filed by the contestants. 
No other representations than those set forth therein should 
be regarded by you. 

If the representations which are alleged in the petition of 
contestants are not proved, no others can be. 

XL. The Fourteenth Issue is: "Was said James McGinn 
induced to sign said instrument, or to acknowledge, or pub- 
lish, or to declare the same to be his will, or to make any 
disposition of his property therein contained, by the, or any, 
fraud practiced upon him, the said James McGinn, or com- 
mitted by said Johanna McGinn, and Ellen Frances McGinn, 
and Joseph S. McGinn, or by any of them? 

Actual fraud has been defined in our code, section 1572 
of the Civil Code, as consisting in any of the following acts 
committed by a party to the contract, or with his connivance, 
with intent to deceive another party thereto, or to induce 
him to enter into the contract: 

1. The suggestion as a fact of that which is not true, by 
one who does not believe it is true; 

2. The positive assertion, in a manner not warranted by 
the information of the person making it, of that which is not 
true, though he believed it to be true; 

3. The suppression of that which is true by one having 
knowledge of the fact; 

4. A promise made without any intention of performing 
it; or 

5. Any other act fitted to deceive. 

Fraud is never presumed; it must always be proved, and 
it can be established only by proving the facts constituting 
the fraud; and, in this case, you should find that no fraud 
was practiced upon the testator, James IMcGiun, by any of 
the parties named, unless the contestants have proved to 
your satisfaction, by a preponderance of evidence: 

1. That a fraud was committed; 

2. The facts constituting that fraud, and showing of what 
it consisted; 



Estate of McGinn. 51 

3. That it influenced the testator, James McGinn, and 
caused him to make the will in question, and that he would 
have made a different will but for the perpetration of such 
fraud. 

The fraud must consist of the fraud alleged in contestants' 
petition ; no other should be regarded by you. 

XLI. The Fifteenth Issue is : Was the said James McGinn, 
at the time when the said instrument was signed by him, and 
by said James F. Tevlin, and James F. Smith, and prior and 
subsequent thereto, laboring under or affected with or by 
any delusion or illusion as to ]\Iary Clements, Emma Burns, 
P. H. McGinn, James McGinn, John McGinn, or Thomas 
McGinn, or as to any of them, or as to the filial affection 
of them, or any of them, towards him? 

As to insane delusions : A sound mind is one wholly free 
from delusions. Weak minds differ from strong minds only 
in the extent and power of their faculties ; unless they betray 
symptoms of delusions, their soundness cannot be questioned. 

It is not the strength of a mind which determines its free- 
dom from delusion ; it is its soundness. 

Thus, it is often said that such and such a distinguished 
man has a sound mind ; yet a man in the plainer walks of 
life, of faculties of less extent or power, may be equally 
sound. The latter is one of sound mind equally with the 
former if free from delusions. Delusion of mind is, to an 
extent, insanity. The main character of insanity, in a legal 
view, is said to be the existence of a delusion ; that is, that a 
person should pertinaciously believe something to exist which 
does not exist, and that he should act upon that belief. 

Belief of things which are entirely without foundation in 
fact, and of the existence of which the testator had no evi- 
dence, and which no sane person would believe, is insane 
delusion ; that is, when a person believes things to exist only, 
or at least in that degree only, in his own imagination, and 
of the nonexistence of which neither argument nor proof can 
convince him — that person is of unsound mind. 

XLII. Belief based on evidence, however slight, is not de- 
lusion. One person, from extreme caution, or from a nat- 
urally doubtful frame of mind, will require proof before 
acting, amounting perhaps to demonstration j while another, 



52 Coffey's Probate Decisions, Vol. 3. 

of different faculties, but of equally sound mind, will act 
upon very slight evidence. 

XLIII. Delusion rests upon no evidence whatever; it is 
based on mere surmise. 

XLIV. It is alleged in the contestants' petition, paragraph 
XIII, that said supposed or pretended will was made under 
the false and insane delusion that he, said James McGinn, 
had, during his lifetime, made provisions for and advances 
to these contestants, and to each of them, and that he had 
advanced to them, and to each of them, a just and equitable 
share of his property and estate. 

This is the delusion, and the only delusion, alleged in con- 
testants' petition; and, unless the contestants have proved 
to your satisfaction, by a preponderance of evidence, that said 
James McGinn labored under that particular delusion at the 
time of the execution of said will, your answer to and ver- 
dict on the Fifteenth Issue should be ''No." 

XLV. Medical witnesses have been examined in this con- 
test, and, so far as their testimony is dependent upon hypo- 
thetical questions, the court instructs you that: 

The testimony of experts is frequently unsatisfactory, and 
many times unreliable. It is unsatisfactory, because it can- 
not convey to our minds the precise reasons why the con- 
elusions are reached; and it is unreliable, because it is fre- 
quently based upon speculations instead of facts. Experts 
in the exact sciences and in mechanics, who base their opin- 
ions upon the laws of nature and of the exact sciences, and 
their own experience with those laws, have tangible facts 
before them; but where the opinions are based upon specu- 
lation, where the subject of the inquiry, namely, the operation 
and condition of the human mind, is beyond the possibility 
of human knowledge, we should receive those opinions as at 
least uncertain. So, when we see a person perform such or 
such an act, we can form an opinion whether the act is 
rational or irrational, whether it is consistent with the stand- 
ard or average human intelligence and reasonableness; but 
when we advance to speculations upon what would or would 
not follow upon some supposed existence of mental condi- 
tions, we go beyond the scope of knowledge and tread upon 
the realm of imagination or conjecture. 



Estate of McGinn. 53 

You are instructed, therefore, that while we receive and 
you will take into consideration the opinion of experts, such 
opinions are not entitled to as much weight as facts, especially 
where there is a conflict between an opinion and a fact. 
When a fact is established, it is a fact and cannot be over- 
come; while an opinion is but an opinion, and it may be 
true and it may be untrue. Opinions of different experts are 
often diametrically opposed to each other, even when based 
upon the same supposed conditions.* 

XLVI. If the jury believes from the evidence that any 
witness examined in this proceeding has willfully sworn 
falsely as to any matter or thing material to the issues in 
the case, then the jury are at liberty to disregard his entire 
testimony, excepting in so far as it may have been corrobo- 
rated by other credible evidence or facts and circumstances 
proved on the trial. 

XL VII. You 'are instructed that while our statute renders 
parties to a suit or proceeding of this character competent 
witnesses, and allows them to testify, still the jury are the 
judges of the credibility and weight of such testimony, and, 
in determining such weight or credibility, the fact that such 
witnesses are interested in the result of the suit may be taken 
into account by the jury, and they may give such testimony 
only such weight as they think it is entitled to under all the 
circumstances of the case, and in view of the interest of such 
witnesses. 

The jury have the right to take into consideration the 
situation and interest in the result of your verdict and all 
the circumstances which surround such witnesses, and give 
to their testimony only such weight as in your judgment it is 
fairly entitled to. 

XLVIII. The court instructs the jury as a matter of law 
that, while the statute of this state authorizes a party to a 
suit to go upon the stand and testify in his own favor, he is 
under no obligation to do so, and if he fails to do so, the 
jury have no right to infer, from this fact alone, anything 
for or against such party. 

There is no presumption or inference of law that such wit- 
nesses were not called to testify because of a consciousness 

•But see Estate of Blake, 136 Cal. 307, 70 Pac. 171. 



54 Coffey's Probate Decisions, Vol. 3. 

that their knowledge, if disclosed, would make against their 
side of the case, and in favor of the contestants. 

A party is not bound to become a witness in his own behalf 
in order to avoid unfavorable legal inferences against him. 

The instruction heretofore given you by the court, and to 
which reference is now made, refers to the character of the 
evidence as weaker or stronger, or satisfactory or unsatis- 
factory, and does not apply to the amount or sum total of 
the evidence offered. 

XLIX. The jury are instructed that the preponderance of 
evidence in a case is not alone determined by the number of 
witnesses testifying to a particular fact, or state of facts. 
In determining upon which side the preponderance of evi- 
dence is, the jury should take into consideration the oppor- 
tunities of the several witnesses for seeing or knowing the 
things about which they testified, their conduct and demeanor 
while testifying, their interest or lack of interest, if any, in 
the result of the suit, the probability or improbability of the 
truth of their several statements in view of all the other evi- 
dence adduced or circumstances proved on the trial, and 
from all the circumstances determine upon which side is the 
weight or preponderance of the evidence. 

L. The court instructs you that it is not at all nec^sary 
to the validity or due execution and publication of a will, 
that the subscribing witnesses, or any of them, should be 
informed of or have any knowledge whatever of the contents 
of the document purporting to be the last will of the tes- 
tator. It is sufficient, so far as the execution of the will is 
concerned, if the testator signs in their presence, and de- 
clares the instrument to be his last will and testament, and 
they subscribe their names thereto, in his presence, at his re- 
quest. 

Allowed and Given on the Part of Contestants. 

1. Whenever nine of your number agree on an answer to 
an issue, it becomes your verdict on that issue. Your ver- 
dict must be in writing, signed by your foreman, and nine 
of you must agree on that verdict. 

2. You are the sole and exclusive judges of the value or 
effect of the evidence. Your power of judging of the effect 



Estate op McGinn. 55 

of the evidence is not arbitrary, but to be exercised with 
legal discretion, and in subordination to the rules of evidence. 

3. You are not bound to decide in conformity with the 
declarations of any number of witnesses which do not produce 
a conviction in your minds against a less number, or even 
against a presumption from their evidence satisfying your 
minds. Evidence is to be estimated not only by its own 
intrinsic weight, but also according to the evidence which it 
is in the power of one side to produce and of the other side 
to contradict; therefore, if weaker and less satisfactory evi- 
dence is offered, when it appears that stronger and more sat- 
isfactory was within the power of the party, the evidence 
offered should be viewed with distrust. A witness is pre- 
sumed to speak the truth, but this presumption may be re- 
pelled by the manner in which he testified or by the character 
of his testimony, or by evidence affecting his character for 
truth, honesty and integrity, or by contradictory evidence ; 
and you, the jury, are the exclusive judges of the credibility 
of each and every witness, and as to every part of the testi- 
mony and evidence of each and every witness. 

4. Direct evidence is that which proves the fact in dispute 
directly, without an inference or presumption. Indirect evi- 
dence is that which tends to establish the fact in dispute 
by proving another fact, and which, though true, does not 
itself conclusively establish that fact, but which affords an 
inference or presumption of the existence of that fact. In- 
direct evidence is of two kinds, inference and presumption. 
Inference is a deduction which the reason of the jury makes 
from the facts proved, without an express direction of law 
to that effect. A presumption is a deduction which the law 
expressly directs to be made from particular facts. The in- 
ference must be founded on a fact legally proved, and on 
such a deduction from that fact as is warranted by a con- 
sideration of the usual propensities or passions of men, the 
particular propensities or passions of the person whose act is 
in question, the course*^of business, or the course of nature : 
Code Civ. Proc, 1958-1960. 

5. A will or a part of a will, procured to be made by 
duress, menace, fraud or undue influence, is invalid. 



56 Coffey's Probate Decisions. Vol. 3. 

6. Every will, other than a nuncupative will, must be in 
writing, and every will, other than an olographic will and 
a nuncupative will, must be executed and attested as follows : 
Civ. Code, sec. 1276 : 

First. It must be subscribed at the end thereof by the tes- 
tator himself, or some person in his presence and by his 
direction must subscribe his name thereto. 

Second. The subscription must be made in the presence of 
the attesting witnesses, or acknowledged by the testator to 
them to have been made by him or by his authority. 

Third. The testator must, at the time of subscribing or 
acknowledging the same, declare to the attesting witnesses 
that the instrument is his will; and. 

Fourth. There must be two attesting witnesses, each of 
whom must sign his name as a witness, at the end of the 
will, at the testator's request and in his presence. 

7. A will can be revoked or altered : 1. By a written will, 
or other writing of the testator, declaring such revocation or 
alteration, and executed with the same formalities with which 
a will should be executed by such testator; or 2. By being 
burnt, torn, canceled, obliterated or destroyed, with the intent 
and for the purpose of revoking the same, by the testator 
himself, or by some person in his presence and bj' his direc- 
tion: Civ. Code, sec. 1292. 

8. 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. "Weakness of mind is not the opposite of sound- 
ness, but is the opposite of strength of mind, and unsound- 
ness is the opposite of soundness. A weak mind may be a 
sound mind, and a strong mind maj' be unsound. The strong 
mind of a man possessed of superior talents and of a deter- 
mined will may be so wrought upon or affected by some 
delusion as to be unsound ; and a weak mind — that is, a mind 
of what we call a lower grade of intellect — may be so evenly 
balanced as to be sound. It is not the weakness or strength 
of mind which determines its testamentary capacity; it is 
its soundness; that is, its healthy condition and healthy 
action. It frequently occurs that there is partial insanity, 
or monomania — insanity as to one or more persons, or upon 



Estate of McGinn. 57 

one or more subjects, and soundness as to all others ; and 
in such cases the testamentary capacity is afit'ected as to a 
person or subject in regard to which the unsoundness exists. 

9. Monomania consists in a mental or moral perversion, or 
both, in regard to some particular subject, or class of sub- 
jects, while in regard to others the person seems to have no 
such morbid affection. The degrees of monomania are vari- 
ous. In many cases the person is entirely capable of trans- 
acting any matters of business out of the range of his peculiar 
infirmity; and, as to those matters out of that range, he may 
be entirely sound ; while, as to matters within the range of 
the infirmity, he may be quite unsound: 1 Redfield on Wills, 
72 et seq. 

Whenever it appears that a will is the direct olTspring of 
partial insanity, or monomania, it should be regarded as in- 
valid, though the general capacity be unimpeached. 

10. Unsoundness of mind may be the result of disease, 
drunkenness, or of one of many other causes. In case of 
drunkenness there are two conditions, a will made under 
either of which is invalid, viz. : Where the will is made during 
the period while the person is overcome by the delirium of 
intoxication, or where the use of intoxicating drinks has been 
so extensive and so excessive as to permanently disable the 
mind. But, in either case, the effect must be to have either 
temporarily or permanently overcome the judgment and un- 
seated the reason. 

11. Undue influence consists in the use, by one in whom a 
confidence is reposed by another who holds a real or apparent 
authority over him, of such confidence or authority for the 
purpose of obtaining an unfair advantage over him, or in 
taking an unfair advantage of another's weakness of mind, 
or in taking a grossly oppressive or unfair advantage of 
another's necessities or distress: Civ. Code, see. 1575. 

12. The issue of undue influence and the principles gov- 
erning it are entirely different from the principles applicable 
to unsoundness of mind. Undue influence is entirely dis- 
tinct from unsoundness. A person may be of sound and 
disposing mind and yet be the victim of undue influence, and 
he may also be a \actim of such undue influence when of un- 
sound mind. If James McGinn was of unsound mind on 



58 Coffey's Probate Decisions, Vol. 3. 

September 26, 1887, when said instrument was signed and 
published by him — if it was ever signed and published by 
him — it is entirely immaterial whether or not any person 
exercised any undue influence over him in the matter of 
the making and execution of said instrument, because un- 
soundness of mind, of itself, incapacitates from making 
a will, influence or no influence. The question to deter- 
mine here is, whether at the time of executing this alleged 
will — if it was ever executed — James McGinn was free to 
do as he pleased, or whether he was then so far under the 
influence of Johanna McGinn, Nellie Frances McGinn and 
Joseph McGinn, or any or either of them, that the will is 
not his will, but the will of said persons, or of one or more 
of them. Of course, persons who intend to control another's 
actions, especiall}^ in regard to making a will, do not pro- 
claim that intent. Very seldom does it occur that a direct 
act of influence is patent ; the existence of the influence must 
generally be gathered from circumstances. Such as, whether 
he had formerly intended a different disposition of his prop- 
erty ; whether he was surrounded by those who had an object 
to accomplish, to the exclusion of others ; whether he w^as 
of such weak mind as to be subject to influence ; whether the 
paper offered is such a paper as would probably be urged 
upon him by the persons surrounding him ; whether they w^ere 
benefited thereby to the exclusion of formerly intended bene- 
ficiaries. The question for you to determine is, Was James 
IMcGinn, from infirmity of age, or from disease or other cause, 
constrained to act against his will, and to do that which he 
was unable to refuse by importunity or threats, or by any 
other means, or in any other way, by which one person 
acquires and exercises dominion and control over another? 
It is not possible to define or describe with exactness what 
influence amounts to undue influence in the sense. of the law; 
this can only be done in general and approximate terms. 
In each case the decision must be arrived at by application 
of these general principles to the special facts and surround- 
ings of the case. 

13. In order that the will should have been execvited under 
fraudulent misrepresentations, it is not necessary to consider 
the question of delusion or insanity. A person may be of 



Estate of McGinn. 59 

perfectly sound mind, and j^et be influenced by fraudulent 
misrepresentations. You will, therefore, inquire whether the 
will contains any provision which was the product of such 
fraudulent misrepresentations as are alleged in contestants' 
petition, which were made to the testator, or by any or either 
or all of the persons named, to wit: Johanna McGinn, Nellie 
Frances McGinn and Joseph McGinn, for the purpose of 
inducing him, and which did induce him, to disinherit any 
one. You will inquire whether James McGinn was induced 
to sign, or to acknowledge, or to publish, the document pro- 
pounded to be his will, or to make any of the dispositions 
of his property, or any of the propositions therein contained, 
by or under fraudulent misrepresentations made by Johanna 
McGinn, Nellie Frances McGinn and Joseph McGinn, or by 
either or any of them, or by any statements made to him by 
them, that certain things existed which did not in truth 
exist, and which caused him to make a will different from 
what he would otherwise have made. 

14. Circumvention by means of fraud will be considered 
in the same light as constraint by force, and will have the 
same effect in setting aside a will as such constraint has. 

If the testator be compelled by violence or urged by threat- 
enings to make his testament, the testament, being made by 
fear, is ineft'ectual. 

Likewise, if he be circumvented by fraud, the testament 
loses its force ; for, although honest intercession or request is 
not prohibited, yet those fraudulent and malicious means, 
whereby men are secretly induced to make their testaments, 
are no less detestable than open force. 

Actual fraud has been defined in our code (Civil Code, 
section 1572) as consisting in any of the following acts com- 
mitted by a party to a contract, or with his connivance, with 
intent to deceive another party thereto, or to induce him to 
enter into the contract: 

1. The suggestions of that which is not true by one who 
does not believe it is true ; 

2. The positive assertion, in a manner not warranted by 
information of the person making it, of that which is not 
true, though he believes it to be truej 



60 Coffey's Probate Decisions, Vol. 3. 

3. The suppression of that which is true by one having 
knowlede:e of the fact; 

4. A promise made without any intention of performing it ; 
or, 

5. Any other act fitted to deceive. 

15. An insane delusion is the pertinacious belief of the 
existence of something which does not exist, and the acting 
upon that belief. Belief of things which are entirely with- 
out foundation in fact, and which no sane person would be- 
lieve, is insane delusion. If a person be under a delusion, 
though there be but partial insanity, yet, if it be in relation 
to the act in question, it will defeat a will which is the direct 
offspring of that partial insanity. 

17. In arriving at your verdict, you are to determine the 
different questions of fact, and each of the issues submitted 
to you, in accordance with the preponderance of evidence. 

18. If you believe and are satisfied, bj'^ and from the evi- 
dence, that the respondents have not established and proved, 
by a preponderance of evidence, that the said instrument, 
claimed to be the last will and testament of James McGinn, 
deceased, M^as subscribed at the end thereof by said James 
McGinn, himself, or by some person in his presence, by his 
direction, then you will find as your answer to the First 
Issue, "No." 

31. If you believe and are satisfied, from and by the evi- 
dence, that said James McGinn, deceased, was not of sound 
mind at the time the said instrument was subscribed by him, 
and when said James F. Smith and J. F. Tevlin signed their 
names to the same, then you will find, as your answer to and 
your verdict upon Special Issue No. 11, the word "No." 

33. If you believe and are satisfied, from and by the evi- 
dence, that the mind and memory of said James McGinn had 
become so weakened and impaired, or deranged, from ex- 
cessive indulgence in intoxicating liquors, or from any other 
cause, that he did not have or possess a sound and disposing 
mind and memory sufficient, or such a mind and memory as 
would enable him to recollect, discern and tell the relations, 
connection and obligations of family and blood, then it will 
be your duty to find, as your answer to and verdict upon 
Special Issue No. 11, the word "No." 



Estate of McGinn. 61 

34. If you believe and are satisfied, from and by tbe evi- 
dence, tliat the said James MJcGinn, at the time when said 
instrument was signed and attested, was laboring or suffering 
under any mental delusion in relation to his children, or in 
relation to their affection, or want of affection for him, and 
that such delusion incapacitated him mentally from con- 
sidering and weighing the relations and claims of his children 
upon him, then it will be your duty to find, as your answer 
to and verdict upon Special Issue No. 11, the word "No." 

35. If you believe and are satisfied, from and by the evi- 
dence, that said James McGinn, at the time when said in- 
strument was signed by him and attested by James F. Smith 
and J. F. Tevlin, was laboring under or suffering from any 
mental delusion as to his daughters, Mary A. Clements and 
Emma Burns, or as to either of them, and that such delusion 
so far affected his mind toward his said daughters, or either 
of them, as to make him mentally incapable of duly weighing 
and considering their claims upon him as his children, or the 
claims of either of them upon him as his child, then it is 
your duty to find, as your answer to and verdict upon 
Special Issue No. 11, the word **No." 

36. If you believe and are satisfied, from and by the evi- 
dence, that said James McGinn, at the time when said instru- 
ment was signed and attested, had become and was by reason 
of excessive indulgence in intoxicating liquors, or by or 
through apoplexy, paralysis, or other diseases, idiotic or imbe- 
cile, to such a degree as to render him incapable of remem- 
bering and w^eighing the relations, connections and obligations 
of family and blood, and the claims of his children upon 
him, then it will be your duty to find, as your answer and 
verdict upon Special Issue No. 11, the word "No." 

37. If you believe and are satisfied, from and by the evi- 
dence, that the deceased, James McGinn, at the time when 
said instrument was signed and attested, was laboring under 
or suffering from a delusion in respect to his children, or in 
respect to any of his children who might have been the ob- 
jects of his testamentary bounty, and that the disposing pro- 
visions of said instrument were caused or affected by such 
delusion, then you will find, as your answer to and verdict 
upon Special Issue No. 11, the word "No." 



62 Coffey's Probate Decisions, Vol. 3. 

38. If you believe and are satisfied, from and by the evi- 
dence, that said James McGinn, deceased, believed and sup- 
posed facts to exist which had no real existence, and against 
all evidence and probability, and conducted himself, however 
logically, upon the assumption of their existence, then he 
was, so far as such matters are concerned, under a morbid 
delusion, a delusion in the sense of insanity, and was a person 
essentially mad or insane on those subjects, though on other 
subjects he might have had reason, or have acted or spoken 
like a sensible man. 

39. A person may have upon some subjects, and even gen- 
erally, mind, memory and sense sufficient to know and com- 
prehend ordinary transactions and sufficient to enable him 
to attend to biLsiness, and yet upon the subject of his chil- 
dren, or upon the subject of some of his children, who would 
naturally be the objects of his care and bounty, he might 
be of unsound mind. 

40. If you believe and are satisfied, from and by the evi- 
dence, that the deceased James McGinn, was, at the time 
when said instrument was signed and attested, laboring under 
a delusion in respect to his daughters, Mary A. Clements and 
Emma Burns, or either of them, and that this delusion in- 
fluenced the making of said instrument, as to them, or either 
of them, then the instrument proposed is not the expression 
of the will of a testator of sound and disposing mind, and 
cannot be regarded as the will of James McGinn, and you 
will find, in answer to Special Issue No. 11, the word "No." 

41. If you believe and are satisfied, from and by the evi- 
dence, that James McGinn was, at the time when said instru- 
ment was signed and attested, laboring under the delusions 
alleged in contestants' petition, with respect to his children, 
or any of them, then he cannot be regarded as, or accounted 
as, mentally sane in making said alleged will, so far as his 
said children or any of them are concerned, though he might 
be mentally sane as to the rest of the world. 

42. If you believe and are satisfied, from the evidence, that 
said James McGinn, at the time of signing and attestation 
of said instrument, had conceived or believed that his 
daughters, Mary A. Clements and Emma Burns, or either of 
them, had no affection for him, and that there was no 



Estate of McGinn. 63 

foundation for any such belief, and that he was incapable 
of being permanently reasoned out of that belief, then you 
will be warranted in concluding that said James McGinn was 
laboring under an insane delusion, and it will be your duty 
to find, as your answer to and verdict upon Special Issue 
No. 11, the word "No." 

46. Unsoundness of mind, in the sense of Special Issue No. 
11, embraces every species of mental incapacity, from raging 
mania to that debility and extreme feebleness of mind which 
approaches near to and even degenerates into idiocy. 

55. In determining whether or not said James McGinn was 
of sound or unsound mind at the time of the making, signing 
and attestation of said instrument, you can take into con- 
sideration the disposition of property and the provisions made 
and contained in said instrument, as well as the manner in 
which the same is written and signed. 

58. If you believe and are satisfied, from and by the evi- 
dence, that James McGinn was of unsound mind at the time 
of making, signing and attestation of said instrument, then 
no subsequent act or declaration of his could make said 
instrument valid as a will, and if you so believe, [then] any 
and all evidence of the soundness of mind of James McGinn, 
at a period subsequent to the making of said will, will be 
disregarded by you in finding your verdict upon Special 
Issue No. 11. 

60. If you believe and are satisfied, from and by the evi- 
dence, that all the property of James McGinn was acquired 
after his second marriage, then said property is community 
property, and Johanna McGinn is entitled as his surviving 
wife to one-half of said property, and can claim the same 
though the said instrument is admitted to probate. 

61. In deciding the issues, raised by the pleading in this 
contest and submitted to you, you are instructed that the 
decree which admitted the alleged will to probate is not evi- 
dence as to any of the said issues, or as to any of the facts 
contained in said issues. 

62. The decree of this court admitting said alleged will to 
probate, which has been admitted in evidence, does not raise 
or create any presumption of law that James McGinn was 
of sound and disposing mind or competent to make a will 



64 Coffey's Probate Decisions, Vol. 3. 

at the time when said alleged will was executed, if the same 
was ever executed by him. 

The court, then, of its own motion, further charged the 
jury as follows: 

A. On one point in this connection it may perhaps be 
advisable for the court to caution the jury. It frequently 
happens that, in the course of a trial before a jury, counsel 
desire under their theory of the case to introduce evidence 
which, according to their antagonists, may seem improper, 
and it becomes the province of the judge to decide touching 
the admissibility of such evidence. In arguing and present- 
ing a question, it often becomes necessary for counsel to state 
what is sought to be proved, or to ask some question of the 
witness which will disclose the fact or line of testimony, some- 
times even the ansAver of the witness improvidontly made 
aiding in the matter. 

If the answer has not been made and objection has been 
sustained with or without exception saved, it is the duty of 
the jurors to banish from their minds, in considering theii* 
verdict, any suggestion of a fact or line of testimony intro- 
duced by such question to witness or offer of proof. 

B. It frequently happens, however, that while the ques- 
tion is in itself unobjectionable, yet the witness in his answer 
fails to be responsive to the question, and either states mat- 
ters which are inadmissible as evidence or irrelevant to the 
issue, or are for any other cause objectionable. A motion is 
thereupon made by the aggrieved party to strike out such 
answer or answers. 

Such motion granted is notice to the jury that they are 
not to consider that particular testimony as offered, and if 
any essential fact depends for its proof upon such testimony 
so stricken out, and such proof is not supplied in some other 
way free from objection, such material fact is to be consid- 
ered by the jury as not proved. Inasmuch, as before stated, 
the power of juries and judges as to the effect to be given 
to evidence is not arbitrary, but to be exercised with legal 
discretion, and in subordination to the rules of evidence. 

C. It sometimes occurs that the judge, in the course of 
passing upon the admissibility of particular evidence or some 



Estate of McGinn. 65 

particular question, either misapprehends or misstates the 
fact sought to be proved, or expresses a doubt either as to the 
competency, the efit'ect, or weight to be given to the evidence 
in discussion. 

Any such statement by the court affecting the weight of 
testimony, the credibility of a witness, or any matter what- 
ever, within the province of the jury, would, if adopted by 
the jury, or permitted in any manner to bias their minds 
in reaching a verdict, be error. It is therefore the duty of 
the court to charge the jury to utterly disregard and banish 
from their minds any chance expression of the judge before 
finally determining any question of admissibility which may 
concern either the weight of the testimony or the credibility 
or the want of credibility of any witness or statement made, 
and which may incautiously or unadvisedly have crept into 
the trial, and you are so cautioned. 

D. I believe, gentlemen of the jury, that these instruc- 
tions cover all the propositions of law upon which it is neces- 
sary for me to give you instructions. You may take with 
you the form of special verdict, in which blanks have been 
left for your foreman to attach the result of the jury's delib- 
erations. In this form you will answer in the appropriate 
blanks, yes or no, to each issue, as you may determine it. If 
you desire, you can take with you the instrument here in dis- 
pute. 

E. You may decide in court without retiring, or you may 
retire for deliberation. 

If you retire, you must be kept together in some con- 
venient place, under charge of an officer, until at least three- 
fourths of your number may agree on a verdict. Whenever 
nine of your number agree on an answer to an issue, it be- 
comes your verdict on that issue. 

If, after you retire, there be any disagreement between you 
as to any part of the testimony, or if you desire to be in- 
formed on any point of law arising in the case, you may 
require the officer to conduct you into court, and, upon your 
being brought into court, the information required must be 
given you in the presence of, after notice to, the parties or 
counsel. 

Piob. Dec, Vol. Ill — 5 



66 Coffey's Probate Decisions, Vol. 3. 

F. Whenever three-fourths of you have agreed on a ver- 
dict, you must be conducted into court, your names called 
by the clerk, and the verdict rendered by your foreman. 

Your verdict must be in writing, signed by your foreman, 
and must be read by the clerk to the jury, and the inquiry 
made whether it is your verdict. Either party may require 
the jury to be polled,- which is done by the court or clerk, 
asking each juror if it is his verdict ; and if, upon such in- 
quiry or polling, more than one-fourth the jurors disagree 
thereto, the jury must be sent out again ; but if no such dis- 
agreement is expressed, the verdict is complete, and you will 
be discharged from the case. 

The case is now with you. 

THE SPECIAL ISSUES SUBMITTED. 

The court then submitted the following special issues to 
the jury for their special verdict and answer to each of said 
issues, to wit: 

First Issue. Was the instrument in evidence in this case, 
and dated September 26, 1887, purporting to be the last will 
and testament of James McGinn, deceased, subscribed at the 
end thereof by said James McGinn? 

Second Issue. Was said instrument subscribed at the end 
thereof by said James McGinn, in the presence of James 
Tevlin and James F. Smith, as attesting witnesses thereto? 

Third Issue. If said instrument was ever subscribed at the 
end thereof by said James McGinn, deceased, did said James 
McGinn acknowledge to said James F. Tevlin and said James 
F. Smith that said instrument had been made and subscribed 
by him? 

Fourth Issue. Did said James McGinn, at the time of sub- 
scribing said instrument at the end thereof, in the presence 
of attesting witnesses, declare to said James F. Tevlin and 
said James F. Smith as attesting witnesses to said instrument, 
that the said instrument was his will ? 

Fifth Issue. Was James F. Tevlin requested by said 
James McGinn to sign his name as witness to said instrument 
as the last will of said James McGinn ? 



Estate of McGinn. 67 

Sixth Issue. Was James F. Smith requested by said 
James McGinn to sign his name as a witness to said instru- 
ment as the last will of said James McGinn ? 

Seventh Issue. Did James F. Tevlin and James F. Smith 
each sign his name to said instrument at the end thereof as 
a witness to the same as a will of said Jp.mes McGinn, and so 
sign as a witness at said James IMcGinn's request, and in the 
presence of said James INIcGinn? 

Eighth Issue. Was said instrument witnessed as a will of 
said James McGinn by two competent witnesses, each sign- 
ing his name as a witness thereto at the end thereof, in the 
presence of said James McGinn, and at the said James 
McGinn's request? 

Ninth Issue. If the said instrument was signed by the 
said James McGinn, did he publish and declare the same to 
James F. Tevlin and James F. Smith, and to each of them, 
and in the presence and hearing of both of them, to be his 
last will and testament? 

Tenth Issue. If you shall find that said instrument was 
ever signed by said James INIcGinn, in what year and month, 
and on what date was the same so signed by him ? 

Eleventh Issue. Was the said James McGinn of sound 
mind at the time the said instrument was subscribed by 
him, and when the said James F. Tevlin and said James 
F. Smith signed their names to the same? 

Twelfth Issue. Was the signing or subscribing, or pub- 
lication or acknowledgment of said instrument, or any part 
thereof or therein, or any one or more of the dispositions 
of property in said instrument contained, made under or pro- 
cured by, or made by or under any undue influence exerted 
by Johanna McGinn, the surviving wife of said James Mc- 
Ginn, and Ellen Frances McGinn, the daughter of said James 
McGinn, and Joseph S. McGinn, son of James McGinn, or by 
either of them ? 

Thirteenth Issue. Was said James McGinn induced to sign 
said instrument, or to acknowledge or publish or declare the 
same to be his will, or to make any disposition of his prop- 
erty, or any provisions therein contained, by the, or any, 
fraudulent misrepresentations or statements made to him. 



68 Coffey's Probate Decisions, Vol. 3, 

said James IMcGinn, by Johanna McGinn, the surviving wife 
of said James McGinn, and Ellen Frances McGinn, the 
daughter of said James McGinn, and Joseph McGinn, or by 
either of them? 

Fourteenth Issue. "Was said James McGinn induced to 
sign said instrument, or to acknowledge or publish or to 
declare the same to be his will, or to make any dispositions 
of his property therein contained, by the, or any, fraud prac- 
ticed upon him, the said James McGinn, or committed by 
said Johanna McGinn and Ellen Prances McGinn and Joseph 
S. McGinn, or by either of them? 

Fifteenth Issue. Was the said James McGinn, at the time 
when the said instrument was signed by him, and by said 
James F. Tevlin and James F. Smith, and prior and subse- 
quent thereto, laboring under or affected with or by any 
delusion or illusion as to Mary Clements, Emma Burns, P. H. 
McGinn, James McGinn, John McGinn or Thomas McGinn, 
or as to any one of them, or as to the filial affection of them, 
or anj" one of them, towards him? 

Sixteenth Issue. Did said James McGinn, subsequent to 
the signing of said instrument by said James F. Tevlin and 
James F. Smith, duly make, publish and declare another 
instrument in writing as his last will and testament, wherein 
and whereby he revoked and annulled any and all former 
wills made, signed and executed or published by him? 

Seventeenth Issue. Did said James ]\IcGinn, subsequent 
to the said time when said instrument was signed by him and 
by said James F. Tevlin and said James F. Smith, revoke the 
said instrument? 



Estate of Byrne. 69 



Estate of BRIDGET BYRNE, Deceased. 

[No. 9,383; decided December 14, 1889.] 

Account. — Sections 1632 and 1633 of the Code of Civil Procedure, 
as to the settlement of accounts of administrators, do not apply to 
an exhibit filed pursuant to section 1622, but to an account filed 
under section 1628. 

Account. — An Order Settling an Annual Account is Final and Con- 
clusive as to all parties in interest, subject only to appeal, and can- 
not, after the time for appeal has passed, be placed again in a posi- 
tion for appeal by motion to set it aside. 

Account — Setting Aside for Fraud. — Allegations of fraud give the 
superior court, sitting in probate, no jurisdiction to vacate an order 
settling an account on motion, but such charges of fraud are tlie 
subject of an independent proceeding in equity. 

This was an application, filed September 12, 1889, to set 
aside an order, made on August 14, 1885, settling an account 
of the administrator. 

King & Saufley and W. F. Sawyer, for the Petitioner. 

Thos. F. Barry, contra. 

COFFEY, J. I have made a careful examination of the 
briefs of the respective counsel for applicant and respond- 
ent in this matter, and have come to the conclusion that the 
order settling the account is final and appealable and con- 
clusive as to all parties in interest: Code Civ. Proc, sees. 
1637, 1908 ; Reynolds v. Brumagim, 54 Cal. 257. 

The counsel for the petitioner say, on page 7 of their reply 
brief, that they can see no difference between an order set- 
tling an administrator's account required under Code of Civil 
Procedure, sections 1622 to 1624, and an order settling an 
annual account under Code of Civil Procedure, section 1628. 
This court has decided frequently that an order settling the 
account or exhibit under section 1622, Code of Civil Proce- 
dure, does not signify, as there is no provision made for a 
judgment of the court upon any such exhibit, it being simply 
for the information of the court, and, therefore, the pre- 
visions of the Code of Civil Procedure, sections 16:>^ and 



70 Coffey's Probate Decisions, Vol. 3. 

1633, as to the settlement of accounts of an administrator, do 
not apply to an account or exhibit under Code of Civil Pro- 
cedure, section 1622, which is to be made six months after 
the appointment of an administrator. The decision of this 
court in the Estate of Caroline Fisher has no application to 
the matter now before the court, as the ''experimental ac- 
count," so called, in that case was presented m.erely to raise 
certain issues for the purpose of obtaining from the court 
directions to the executors as to their duties in the premises. 

The order settling the annual account in this case was the 
subject of appeal to the supreme court (Code Civ. Proc, sec. 
963), and cannot be placed again in position for appeal by a 
motion to set it aside : Coombs v. Hibbard, 43 Cal. 453 ; Dor- 
land V. Cunningham, 66 Cal. 484, 6 Pac. 135 ; Tripp v. Santa 
Rosa St. R. R. Co., 69 Cal. 631, 11 Pac. 219. 

The allegations of pretended fraud give this court no juris- 
diction to vacate said order settling the account. They are. 
if true and sufficient, the subject of an independent proceed- 
ing in a court of equity : Estate of Hudson, 63 Cal. 454 ; 
Dean v. Superior Court, 63 Cal. 474 ; affirmed. In re Cahalan, 
70 Cal. 605, 12 Pac. 427 ; Estate of Maxwell, 74 Cal. 384, 16 
Pac. 206. These cases are conclusive on the point that the 
order settling the account of the administrator is not assail- 
able in this court in the manner attempted, and that if this 
court should set aside the order its action would be a nullity. 

As to so much of the application as attacks the validity of 
the order settling the annual account this proceeding cannot 
be sustained, as the court concludes it has not the power or 
jurisdiction to set aside the order made heretofore settling 
the first annual account; but, with respect to so much of the 
petition as requires the administrator to file his final account, 
the court is of opinion that the petition is sufficient ; and the 
demurrer as to that part is overruled, and counsel are in- 
structed to draw an order upon the administrator to show 
cause why he should not file his final account. 



The Settlement and Allowance of the Account of an Executor or 
Administrator, if not appealed from, is conclusive as to all matters 
and items contained in it and upon all persons interested, saving to 
persons under disability the right to reopen the account or proceed 
against the executor or administrator at any time before final dis- 



Estate of Blanc. 71 

tribution. In this respect there is, in general, no difference between 
a final and any other account. Once settled and approved, accounts 
can be questioned only on direct attack by motion to open, or other 
like remedy in the superior court, or on appeal. They are not sub- 
ject to collateral attack: 1 Ross on Probate Law and Practice, 793. 
Courts of equity, however, not infrequently review the accounts of 
administrators and guardians, on the ground of fraud or mistake, 
after the time for relief on motion or by appeal has passed: See the 
note to Estate of McLaughlin, 1 Cof. Pro. Dec. 263. 



Estate of ALEXANDER BLANC, Deceased. 

[No. 11,082; decided May 5, 1892.] 

Wills — Testamentary Capacity. — A person is of sound and disposing 
mind who is in the full possession of his mental faculties, free from 
delusion, and capable of rationally thinking, acting and determining 
for himself. Weakness of mind is not the opposite of soundness, but 
is the opposite of strength of mind, and unsoundness is the opposite 
of soundness. A weak mind may be a sound mind and a strong mind 
may be unsound. 

Wills. — Undue Influence Consists in the Use, by one in whom a 
confidence is reposed by another, who holds a real or apparent 
authority over him, of such confidence or authority for the purpose 
of obtaining an unfair advantage over him, or in taking an unfair 
advantage of another's weakness of mind, or in taking a grossly 
oppressive or unfair advantage of another's necessities or distress. 

Wills. — Lawful or Unlawful Influence, in procuring the execution of 
a will, discussed and distinguished. 

Wills — Undue Influence, 'What Constitutes. — The influence exerted 
over a testator to avoid his will must be of such a nature as to de- I 
prive him of free agency, and render his act obviously more the 
offspring of the will of others than his own; and it must be specially 
directed toward the object of procuring a will in favor of particular 
parties and must be still operating at the time the will is made. 

Wills — Undue Influence, What Constitutes. — Influence and per- 
suasion may be fairly used on a testator; and a will procured by 
honest means, by acts of kindness, attention and persuasion which 
delicate minds would shrink from, will not be set aside on that 
ground alone. The influence to vitiate a will must not be the in- 
fluence of affection or attachment. 

Wills — Undue Influence, What Constitutes. — In order to avoid a 
will on the ground of undue influence, it must be shown that the in- 



72 Coffey's Probate Decisions, Vol. 3. 

fluence exercised amounted to a moral coercion, which restrained 
independent action and destroyed free agency, or which, by impor- 
tunity that could not be resisted, constrained the testator to do that 
which was against his free will and desire, but which he was unable 
to refuse or too weak to resist. It must not be the promptings of 
affection, the desire of gratifying the wishes of another, the ties of 
attachment arising from consanguinity, or the memory of kindly acts 
and friendly oflSces, but a coercion produced by importunity, or by a 
silent, resistless power which the strong will often exercises over 
the weak and infirm, and which could not be resisted, so that the 
motive was tantamount to force or fear. 

Alexander Blanc died on June 14, 1891, leaving a widow, 
a sister, the children of a deceased brother and the children 
of a deceased sister. 

On June 22, 1891, the widow filed a petition for probate 
of the will of decedent, which was dated June 12, 1891. The 
will was admitted to probate on July 6, 1891. In this will 
the widow and one of the nephews were named as the prin- 
cipal legatees and devisees. 

In February, 1892, the sister and several of the nieces and 
nephews of the decedent filed petitions for the revocation of 
the probate of the will, and alleged, as grounds of contest, 
that the testator was of unsound mind, and that the will was 
made by undue influence of the widow, and of the nephew 
who was named in the will as a devisee. 

These contests were tried before a jury, and on May 5, 
1892, the court instructed the jury and the latter rendered 
a verdict sustaining the will. 

Henry H. Davis, for certain of the contestants. 

Dunne & McPike, of counsel. 

Jones & O'Donnell, for the other contestants. 

W. M. Cannon, for respondents. 

n. N. Clement, of counsel. 

COFFEY. J. (Addressing the Jury.) 1. Whenever nine 
of your number agree on an answer to an issue, it becomes 
your verdict on that issue. Your verdict must be in writ- 



Estate of Blanc. 73 

Ing, signed by your foreman, and nine of you must agree on 
that verdict. 

2. You are the sole and exclusive judges of the value or 
effect of the evidence; your power of judging of the effect 
of the evidence is not arbitrary, but to be exercised with legal 
discretion, and in subordination to the rules of evidence. 

3. You are not bound to decide in conformity with the 
declarations of any number of witnesses which do not pro- 
duce conviction in your minds, against a less number, or 
even against a presumption from the evidence satisfying your 
minds. Evidence is to be estimated not only by its own in- 
trinsic weight, but also according to the evidence which it is 
in the power of one side to produce, and of the other side to 
contradict. A witness is presumed to speak the truth ; but 
this presumption may be repelled by the manner in which he 
testifies or by the character of his testimony, or by evidence 
affecting his character for truth, honesty and integrity, or 
by contradictory evidence; and you, the jury, are the exclu- 
sive judges of the credibility of each and every witness, and 
as to every part of the testimony and evidence of each and 
every witness. 

4. Direct evidence is that which proves the fact in dispute 
directly, without an inference or presumption. Indirect evi- 
dence is that which tends to establish the fact in dispute, and 
which, though true, does not itself conclusively establish that 
fact, but which affords an inference or presumption of the 
existence of that fact. Indirect evidence is of two kinds — 
inference and presumption. Inference is a deduction which 
the reason of the jury makes from the facts proved without 
an express direction of law to that effect. A presumption is 
a deduction which the law expressly directs to be made from 
particular facts. The inference must be founded on a fact 
legally proved, and on such a deduction from that fact as 
is warranted by a consideration of the usual propensities or 
passions of men, the particular propensities or passions of 
the person whose act is in question, the course of business, or 
the course of nature: Code Civ. Proc, sees. 1958-1960. 

5. A will or a part of a will procured to be made by undue 
influence is invalid. 



74 Coffey's Probate Decisions, Vol. 3. 

6. A person is of sound and disposing mind who is in the 
full possession of his mental faculties, free from delusion, 
and capable of rationally thinking, acting and determining 
for himself. "Weakness of mind is not the opposite of sound- 
ness, but is the opposite of strength of mind, and unsound- 
ness is the opposite of soundness. A weak mind may be a 
sound mind, and a strong mind may be unsound. The 
strong mind of a man possessed of superior talents, and of a 
determined will, may be so wrought upon or affected by some 
delusion as to be unsound ; and a weak mind — that is, a mind 
of what we call a lower grade of intellect — may be so evenly 
balanced as to be sound. It is not the weakness or strength 
of mJnd which determines its testamentary capacity; it is its 
soundness ■ — that is, its healthy condition and healthy action. 

7. Unsoundness of mind may be the result of disease, 
drunkenness, or of one of many other causes. In case of 
drunkenness there are two conditions, a will made under 
either of which is invalid, viz. : Where the will is made dur- 
ing the period while the person is overcome by the delirium 
of intoxication, or, where the use of intoxicating drinks has 
been so extended and so excessive as to permanently disable 
the mind. 

8. Undue influence consists in the use, by one in whcm a 
confidence is reposed by another, who holds a real or apparent 
authority over him, of such confidence or authority for the 
purpose of obtaining an unfair advantage over him, or in 
taking an unfair advantage of another's weakness of mind, 
or in taking a grossly oppressive or unfair advantage of 
another's necessities or distress. 

9. The issue of undue influence and the principles govern- 
ing it are entirely different from the principles applicable to 
unsoundness of mind. Undue influence is entirely distinct 
from unsoundness. A person may be of sound and disposing 
mind and yet be the victim of undue influence, and he may 
also be the victim of such influence when of unsound mind. 
If Alexander Blanc was of unsound mind on June 12, 1891, 
when said instrument was signed and published by him — if 
you find that it was signed and published by him — it is 
entirely immaterial whether or not any person exercised any 
undue influence over him in the matter of the making and 



Estate of Blanc. 75 

execution of said instrument, because unsoundness of mind 
of itself incapacitates from making a will, influence or no 
influence. The question to determine here is whether at the 
time of executing this alleged will — if you find that it was 
executed — Alexander Blanc was free to do as he pleased, or 
whether he was then under the influence of Susan Blanc and 
Stewart Blanc ; and, if so, whether he was so far under the 
influence of Susan Blanc and Stewart Blanc, or either of 
them, that the will is not his will, but the will of said persons, 
or of one of them. Of course, persons who intend to control 
another's actions, especially in regard to making a will, do 
not proclaim that intent. Very seldom does it occur that a 
direct act of influence is patent ; the existence of the influence 
must generally be gathered from circumstances — such as, 
whether he had formerly intended a different disposition of 
his property ; whether he was surrounded by those who had 
an object to accomplish, to the exclusion of others; whether 
he was of such weak mind as to be subject to influence; 
M^hether the paper offered is such a paper as would probably 
be urged upon him by the persons surrounding him ; 
whether they were benefited thereby to the exclusion of 
formerly intended beneficiaries. The question for you to 
determine is. Was Alexander Blanc, from infirmity of age or 
from disease or other cause, constrained to act against his 
will and to do that which he was unable to refiise by impor- 
tunity or threats, or by any other means, or in any other way- 
by which one person acquires and exercises dominion and 
control over another? It is not possible to define or describe 
with exactness what influence amounts to undue influence in 
the sense of the law ; this can only be done in general and 
approximate terms. In each case the decision must be ar- 
rived at by application of these general principles to the 
special facts and surroundings of the case. 

10. You are not bound to decide in conformity with the 
declarations of any number of witnesses which do not pro- 
duce conviction in your minds, against a less number, or 
against a presumption or other evidence satisfying your 
minds. 

11. A witness false in one part of his testimony is to be 
distrusted in others. 



76 Coffey's Probate Decisions, Vol. 3. 

12. In deciding the issues raised by the pleadings in this 
contest, and submitted to you, you are instructed that the 
decree which admitted the alleged will to probate is not evi- 
dence as to any of the issues involved in this matter, or as 
to any fact involved in said issues. 

13. The decree of this court admitting said alleged will 
to probate does not raise or create any presumption of law 
that Alexander Blanc was of sound and disposing mind, or 
competent to make a will at the time when said alleged will 
was executed — if the same was ever executed by him. 

If you find from the evidence that the deceased, Alexander 
Blanc, was very strongly attached to his wife, Susan Blanc, 
and to his nephew, Stewart Blanc; that they were both of 
them kind, faithful and devoted to him, and that by reason 
thereof he reposed the greatest confidence in them; and you 
further find that the said Susan Blanc and Stewart Blanc, 
or either of them, did use honest intercession, request and 
argument, and persuasion, to induce said deceased to make 
said will in their favor, to the exclusion of other of his rela- 
tives, and that he voluntarily, and as a result of such honest 
intercession, request, argument and persuasion, executed said 
will in their favor, I charge you that such influence so ex- 
erted is not an unlawful or undue influence, within the mean- 
ing of the law. A lawful influence, such as that arising from 
legitimate family and social relations, must be allowed to 
produce its natural results, even in influencing last wills. 
However great the influence thus generated, there is no taint 
of unlawfulness in it; nor can there be any presumption of 
its unlawful exercise merely because it is known to have ex- 
isted, and to have manifestly operated upon the testator's 
mind as a reason for his testamentary dispositions. 

The influence exerted over the testator to avoid his will 
must be of such a nature as to deprive him of free agency, 
and render his act obviously more the offspring of the will of 
others than his own; and it must be specially directed toward 
the object of procuring a will in favor of particular parties 
and must be still operating at the time the will is made. 

Influence and persuasion may be fairly used; and a will 
procured by honest means, by acts of kindness, attention and 
persuasion which delicate minds would shrink from, will not 



Estate op Blanc. 77 

be set aside on that ground alone. The influence to vitiate a 
will must not be the influence of affection or attachment. 

The fact that the beneficiaries of a will are those by whom 
the testator was surrounded, and with whom he stood in 
confidential relations at the time of its execution, is no 
ground for inferring undue influence. 

Influence gained by kindness and affection will not be 
regarded as undue, if the will induced to be made through its 
exercise is voluntarily made. 

In order to avoid a will on the ground of undue influence, 
it must be shown that the influence exercised amounted to a 
moral coercion, which restrained independent action and 
destroyed free agency, or which, by importunity which could 
not be resisted, constrained the testator to do that which was 
against his free will and desire, but which he was unable to 
refuse or too weak to resist. It must not be the promptings 
of affection ; the desire of gratifying the wishes of another ; 
the ties of attachment arising from consanguinity, or the 
memory of kindly acts and friendly offices, but a coercion 
produced by importunity, or by a silent, resistless power 
which the strong will often exercises over the weak and 
infirm, and which could not be resisted, so that the motive 
was tantamount to force or fear. 

I instruct you that undue influence cannot be presumed, 
but must be proved, and the burden of proving it lies on the 
party alleging it; and, although the evidence of undue in- 
fluence must often be indirect and circumstantial, such evi- 
dence must be so clear and strong as to bring conviction to 
your minds that the respondents did actually use unlawful 
influence upon the direct act of making the will, and at the 
time it was made, and that such influence was not such as a 
wife or other lawful relation is permitted by law to use. 
The undue influence must be proved to exist as a fact — you 
are not justified in finding it upon a suspicion. 

I instruct you that the words "undue advantage," as used 
in the special issues to be submitted to you, mean not such 
an advantage or influence as a wife or lawful relations may 
use over the testator, but it must be such an advantage as 
causes him to make a will essentially contrary to his desire, 
against the dictates of his affections, and not in accordance 



78 Coffey's Probate Decisions, Vol. 3. 

with his intentions; for no matter how great may be the 
advantage used over a testator by one in a lawful relation to 
him, such advantage is not undue, and cannot invalidate his 
will, unless it had the effect of causing him to make such a 
disposition of his property as was against his will and desire, 
and against his intentions. 



The Undue Influence Whicli will Vitiate a Will is considered in 
Estate of Casey, 2 Cof. Pro. Dec. 68, and note; Estate of Ingram, 1 Cof. 
Pro. Dec. 222, and note. This question is further considered with special 
reference to the lawful or unlawful relations between the parties in 
Estate of Tiffany, 1 Cof. Pro. Dec. 478. The supreme court appears 
to take the view, that the real issue is the effect of the influence upon the 
mind of the testator, and not its source or moral attributes: Estate of 
Cahill, 74 Cal. 52, 15 Pac, 364; Estate of Kufiano, 116 Cal. 304, 48 Pac. 
127. 



Estate of CLARA CECILIA BEDELL, Deceased. 

[No. 11,494; decided March 25, 1892.] 

Administrators — Order of Persons Entitled to Letters. — Section 
1365 of the Code of Civil Procedure specifies ten classes of jjersons 
to whom letters of administration may be granted, who are entitled 
to letters in the order of enumeration. The parents constitute the 
third class; the public administrator the eighth class; and any person 
legally competent the tenth class. 

Administrators — Nominee of Parents. — Section 1379 of the Code of 
Civil Procedure provides that administration may be granted to one 
or more competent persons, although not otherwise entitled to the 
same, at the written request of the person entitled, filed in court. A 
nominee of the parents, although in his own right belonging to the 
tenth class, is, by virtue of the written request of the parents, 
entitled to precedence over the public administrator. 

Administrator — Nomination by Surviving Spouse. — A surviving 
husband or wife, though not competent to serve on account of non- 
residence, may nevertheless nominate a suitable person for ad- 
ministrator. 

Administrator — Nomination by Nonresident. — A nonresident, not 
being entitled to letters of administration, cannot, as a general rule, 
under section 1379, make a valid request for the appointment of 
another person. 



Estate of Bedell. 79 

Administration — Right to Nominate. — Section 1379 is limited in 
its operation by subdivision 1 of section 1365 to the particular in- 
stance of the surviving husband or wife only. 

Administration — Estoppel to Retract Nomination. — Where the 
father of the decedent requested the appointment of a competent 
person as administrator, and his nominee applied for letters and thus 
went to expense and trouble, the father is estopped from withdraw- 
ing his waiver or retracting his renunciation. 

Clara Cecilia Bedell died on October 16, 1891, leaving a will 
dated June 20, 1891, in which Richard V. Dey was named as 
executor. 

On November 3, 1891, Edward W. Gunther filed a petition 
for letters of administration with the will annexed, alleging 
that Dey had renounced his right to act as executor, and that 
the mother of the decedent requested his, Gunther 's, appoint- 
ment as administrator. Annexed to the petition was the re- 
quest of the mother. 

On November 14, 1891, A. C. Freese, public administrator, 
filed a petition prating that letters be issued to him. 

On December 7, 1891, Gunther filed an amended petition in 
which he stated that the father of the decedent also requested 
his appointment, and annexed to this amended petition was 
the request of the father. 

On January 11, 1892, there was filed another paper signed 
!)y the father, dated January 9, 1892, and requesting that the 
public administrator be appointed administrator of the estate. 

W. F. Herrin and Arthur Rodgers, for E. W. Gunther, 
nominee of parents. 

J. D. Sullivan and James G. Maguire, for A. C. Freese, Pub- 
lic Administrator. 

COFFEY, J. Testatrix died leaving a will nominating one 
Richard V. Dey as executor. Dey renounced and Gunther 
applied for letters of administration, with the will annexed, 
upon request preferred in writing of the father and mother. 
The father expressly waived and relinquished his right to be 
appointed, and requested the appointment of Gunther. Sub- 
sequently, and after the case was submitted for consideration, 



80 Coffey's Probate Decisions, Vol. ;:■. 

he undertook to retract this relinquishment and requested the 
appointment of the public administrator. 

The first brief was filed January 5th, the last brief Feb- 
ruary 6, 1892; the first requested of the father, in favor of 
Guuther, December 7, 1891, and the second request (the last 
up to date) January 9, 1892. I shall treat the case, first, as it 
stood at the submission, and, secondly, as it is claimed to have 
been modified by the second request of the father. 

Section 1365 of the Code of Civil Procedure specifies ten 
classes of persons to whom letters of administration may be 
granted, who are entitled to letters in the order of enumera- 
tion. The father and mother constitute the third class, the 
public administrator the eighth class, and the last or tenth 
class includes the applicant, Gunther. 

Section 1379 of the Code of Civil Procedure provides: "Ad- 
ministration may be granted to one or more competent persons, 
although not otherwise entitled to the same, at the written re- 
quest of the person entitled, filed in the court. ' ' 

The public administrator contends that the written request 
of the father and mother, in favor of a person within the 
tenth class, cannot supersede his right to letters, as under sec- 
tion 1365 he is entitled before a person of the tenth class. 

This construction of the law denies to section 1379 any effect 
or force whatever, because, if the priority of right to k-tters 
specified in section 1365 must always prevail, then it is idle to 
make a written request for the appointment of any person ex- 
cept he be the one next entitled to letters of administration 
after the person making the request. In such case the person 
entitled could simply decline to apply for letters, and would 
thus accomplish his object fully without making any written 
request. But section 1379 expressly provides that letters of 
administration may be granted to a "competent person," "not 
otherwise entitled to the same, at the written request of the 
person entitled. " If the legislature intended that the right of 
the person next in order could not be superseded by the writ- 
ten request of the person entitled, it certainly would have indi- 
cated such intention by appropriate language. But the statute 
does not say that only the person next entitled to letters may 
be appointed at the request of the person entitled ; on the con- 
trary, it says that a "competent person," "although not other- 



Estate op Bedell. 81 

wise entitled," may be apointed at the request of the person 
entitled. A "competent person" may be included in the 
tenth class of section 1365, and may be appointed at the re- 
quest of the person entitled, whichever class he may be within, 
whether the class immediately preceding or not. 

It is argued that this construction of these sections denies 
any effect to that portion of subdivision 1 of section 1365 which 
provides that the surviving husband or wife may request to 
have appointed any competent person, such person being en- 
titled first in order to letters. But it is obvious that this pro- 
vision of subdivision 1 has application to cases other than those 
governed by section 1379, as under section 1379 only persons 
who are themselves entitled to letters can make a written re- 
quest for the appointment of another person ; but, under sub- 
division 1 of section 1365, a surviving husband or wife can 
make such request, although he or she may not be personally 
entitled to letters. 

That a surviving husband or wdfe, though not competent to 
serve on account of nonresidence, may, nevertheless, nominate 
a suitable person for administrator is decided in the following 
named eases: Estate of Cotter, 54 Cal. 215; Estate of Steven- 
son, 72 Cal. 164, 13 Pac. 404 j Estate of Dorris, 93 Cal. 611, 29 
Pac. 244. 

On the other hand, it is held that a nonresident, not being 
entitled to letters of administration, cannot, under section 
1379, make a valid request for the appointment of another 
person : Estate of Beech, 63 Cal. 458 ; Estate of Hyde, 64 
Cal. 228, 30 Pac. 804. 

As is said in the Stevenson case (72 Cal. 166, 13 Pac. 404) : 
"Section 1379 accords to persons other than the surviving 
husband or wife the right of nominating an administrator, but 
has no reference to such husband or wife and their rights in 
that matter, which are fixed and determined by section 1365." 

Therefore, the construction adopted by this court gives force 
and effect to all the provisions of the sections of the code in 
question, while the contrary construction denies to section 
1379 any force or effect whatever. 

Now, what is the effect of the second request of the father 
filed after the submission of the applications? Does it mate- 

Prob. Dec, Vol. Ill — 6 



82 Coffey's Probate Decisions, Vol. 3. 

rially modify the situation, or change the legal relation or cir- 
cumstances of the parties to this controversy ? 

Section 1379 is limited in its operation by subdivision 1 of 
section 1365 to the particular instance of the surviving hus- 
band or wife only. By this construction both sections can be 
given effect. "They should be so construed as to maintain 
both, if possible": Camp v. Grider, 62 Cal. 26. 

"Such a construction must therefore be given to those pro- 
visions of the codes that both ma}', if possible, have effect": 
Gonzales v. "Wasson, 51 Cal. 297. 

The present being an instance of the request by the mother 
and father, and not embraced in the exceptional case of sub- 
division 1 of 1365, is therefore covered by 1379, and the re- 
quests and petition on behalf of petitioner Gunther should be 
granted as matter of right : Estate of Allen, 78 Cal. 585, 21 
Pac. 426 ; Estate of ]McDougall, 1 Cof . Pro. Dec. 109 ; Estate 
of Lane, 1 Cof. Pro. Dec. 88 ; Estate of Keenan, Myr. Pro. 186. 

Tiie father's second request, filed January 9, 1892, should 
be disregarded, because he had already' exercised his statutory 
right by his written request attached to Gunther 's petition, 
filed December 7, 1891, wherein he states: "I .... do hereby 
waive and relinquish my right to be appointed such adminis- 
trator and to such letters of administration, and do hereby 
request and ask said court to appoint Edw. W. Gunther .... 
administrator, with the will annexed, of the estate of said 
Clara Cecilia Bedell, deceased, and to issue such letters of ad- 
ministration to him," and he cannot revive his privilege, nor 
retract his waiver and request, as against the petitioner Gun- 
ther, who acted upon the same. 

". . . . the appellant, having renounced her right to ad- 
minister in favor of the respondent, cannot now retract her 
renunciation, and her petition for letters was properly de- 
nied": Estate of Moore, 68 Cal. 283, 9 Pac. 164; Estate of 
Arguello Minors, No. 4170, Coffey, J. 

He is, "upon familiar principles, estopped now from with- 
drawing his assent and waiver or renunciation": Estate of 
Kirtlan, 16 Cal. 165 ; Estate of Keane, 56 Cal. 410. 

I think that it may be said that the father "encouraged 
Gunther to go to expense and trouble in applying for this of- 
fice," and that, hence, he was estopped at the date of the sec- 



Estate of Bedell. 83 

ond request from withdrawing his waiver or retracting his 
renunciation. 

I do not think that the Estate of Morgan, upon which coun- 
sel for the public administrator so strongly relies, can be 
properly applied to the case at bar. Certainly not as to the 
first reason assigned by the supreme court (see 53 Cal. 243), 
and the second reason seems to have been hypothesis purely. 
In that case the supreme court said that the fact that "Croly 
had been recommended to the probate court by the next of kin 
as being a suitable person to administer upon the estate (un- 
der the Code of Civil Procedure, section 1379, as amended in 
1878), did not give him any preference over the public admin- 
istrator in claiming the administration of the estate, and this 
for two reasons : 

"1. The distributees and next of kin in this case are mar- 
ried women, and incapable, therefore, themselves, of adminis- 
tering upon the estate, and their expressed preferences for the 
appointment of Croly, as set forth in their petition filed in the 
probate court, were of no legal consequence whatever. 

"2. But had it been otherwise in this respect, and had the 
next of kin been laboring under no such disability, their peti- 
tion requesting the appointment of Croly was addressed to the 
mere discretion of the probate judge; it did not operate to 
supersede the claim of the public administrator, otherwise 
established under the statute, to receive letters of administra- 
tion." 

Application of Gunther granted. 



The Principal Case was AflSrmed by the supreme court in 97 Cal. 
339, 32 Pac. 323. 

A Person Nominating Another for Appointment as Administrator 
must himself be competent to fill the office, except that a surviving 
husband or wife has an absolute right to nominate a fit person to 
serve in his or her stead. It follows that a nonresident father or 
brother of a decedent is not entitled to nominate an administrator 
of his estate; but that a surviving spouse, though incompetent to act 
as administrator because of nonresidence, is entitled to nominate some 
person competent for the position: Estate of McDougal, 1 Cof. Pro 
Dec. 109, and note; 1 Eoss on Probate Law and Practice, 341. 



84: Coffey's Probate Decisions, Vol. 3. 



Estate of SHERWOOD CALLAGHAN, Deceased. 

[No. 11,405; decided November 25, 1892.] 

Accounts.— The Statutes do not Reciuire that Any Particular Desig- 
nation should be given by executors to any account which they may 
file; the code leaves the nature of the account to be determined by 
its intrinsic qualities and contents, and not by any title or heading 
which may irrelevantly be placed upon it. 

Final Account and Final Settlement Defined. — A final account, ex- 
cept as the term is used in Code of Civil Procedure, sections 1652, 
1653, merely means a complete account of all matters necessary for 
the complete administration of the estate, and a "final settlement" 
means such a settlement as completes all matters which the court 
should act upon to cover all the true functions of administration, 
namely, which provides for the payment of all presented debts, which 
passes upon all receipts and disbursements up to the date of the 
payment of the debts and the expiration of the normal period of ad- 
ministration, and puts the court in possession of data sufficient to 
determine and ascertain the distributable assets. 

Final Account. — The Account of an Executor may be regarded as 
final, although it does not set forth the amount of his commissions 
or the amount of the attorney's fees, and although there have other 
sums accrued to the estate since the filing of the account. 

Account — Only One is Necessary. — In ordinary estates there is no 
necessity for more than one account, which is a final or complete ac- 
count. 

Account.— The "Finality" of the Account of an Executor is to be 
determined by reference to its completeness and to the circumstances 
of the estate, and not by reference to the title which the executors 
choose to apply to it. 

Account. — A "Final" or Second Account is not contemplated by the 
code, except in the single case where the court, on settling the 
original or general account, determines that the estate is not ready 
for closing, and fixes a limit for the rendering of another account. 

Account. — The Term "Final Account," as used in Code of Civil Pro- 
cedure, section 1652, applies only to the cases mentioned in the last 
half of section 1651; and the term "final settlement," as used in sec- 
tion 1665, applies not specially to the settlement of a "final account" 
(in the sense of a second account, as prescribed by section 1652), 
but to any settlement of account which completes the payment of the 
debts and determines the distributable assets. 

Accounts.— Three Classes of Notices of the Hearing of Accounts 
are provided by the code: 1. Where the account is filed by itself, 
notice must be given as prescribed by Code of Civil Procedure, section 
1633; 2. Where the petition for distribution is filed by itself, notice 
must be given as prescribed in Code of Civil Procedure, section 1GG8; 



Estate of Callaghan. 85 

3. Where the account and distribution are filed together, the notice 
must be given as prescribed in Code of Civil Procedure, section 1634. 

Sherwood Callaghan died on September 14, 1891, leaving a 
will dated January 27, 1891, in which he named his mother, 
Annie Callaghan, executrix, and his brother, Daniel T. Cal- 
laghan, executor. On petition filed on September 22, 1891, 
letters testamentary were issued to the executor and executrix 
on October 20, 1891. 

On October 19, 1892, the executor and executrix filed an ac- 
count which they denominated a ''First Annual Account." A 
day was fixed for the hearing of the account, and notice given 
of such hearing. On October 24, 1892, the devisees and lega- 
tees named in the will filed a petition for distribution, and 
this petition was set for hearing at the time fixed for the settle- 
ment of the account, and notice thereof was given. The ac- 
count was settled on November 4, 1892. The hearing of the 
petition for distribution was postponed to a later day, and, 
upon such hearing, counsel for the executor and executrix 
objected thereto on the grounds that the application was pre- 
mature and that the notice of the hearing was not in compli- 
ance with the provision of the code on the subject. 

Chas. F. Hanlon, for the executor and executrix. 

Harold Wheeler, for the devisees and legatees. 

COFFEY, J. The questions to be determined are whether 
there has been a "Final Settlement of the Accounts of the 
Executor" within the meaning of section 1665, Code of Civil 
Procedure, so as to entitle the legatees to distribution, and 
whether notice of the settlement and of the distribution has 
been given in such a way as to make regular a degree of dis- 
tribution at the present time. 

1. What is a "final" account? 

The first question resolves itself into a question as to what is 
meant by "Final Settlement of the Accounts" in section 1665. 
A comparison of the different sections of the code will make it 
clear that such a "final settlement" has now occurred. 

The account filed herein was designated by the executors as 
their ' ' First Annual Account. ' ' There is nothing in the code 



86 Coffey's Probate Decisions, Vol. 3. 

to warrant such a title being given to this, or, indeed, to any 
account. No reference is made in the code to an "annual 
account"; nor is there any requirement anywhere that a par- 
ticular designation should be given by the executors to any 
account which they may file. The code leaves the nature of 
the account to be determined by its intrinsic qualities and con- 
tents, and not by any title or heading which may irrelevantly 
be placed upon it. 

"We find no decision of our own supreme court particularly 
defining the phrase "final settlement." Looking into the use 
of the phrase in other states than our own, we find that it has 
two meanings, according to the procedure in vogue where it is 
emploj^ed. For instance, in the American and English Ency- 
clopedia of Law, title "Executors and Administrators," sub- 
title "Account" (volume 7, page 442, first edition), we find 
the following statement, accompanied by references to many 
cases outside of California, to wit: "A partial or annual ac- 
count is only a judgment de bene esse, often rendered ex parte, 
and only prima facie correct. On final settlement it may be 
opened to correct errors due to fraud or mistake, although the 
error was not excepted to or appealed from when the partial 
account was rendered. After the final balance has been ascer- 
tained by the accounting, a decree of distribution is regularly 
in order." Evidently it is not in this sense that the phrase 
"final account" or "final settlement" is used in our own code ; 
for the settlement of any account filed by an executor in our 
state is final and conclusive in the sense referred to in the above 
quotation: Code Civ. Proc, sec. 1637. The above quotation 
and the definition therein contained applies, therefore, only to 
those states in which an ex parte rendering of an account with- 
out citation or notice to the parties interested is permitted. 
For instance, in New York, accounts are habitually rendered- 
and accepted by the surrogate without notice and subjected to 
scrutiny only at a later date when "final settlement" of that 
or of all of the accounts is asked for and notice is given. Day- 
ton on Surrogates, page 463: "The finality intended by the 
term 'final settlement' refers to the conclusive character of the 
accounting, which, being made on citation to all parties in in- 
terest, is a final and conclusive adjustment up to that period." 



Estate of Callaghan. 87 

The foregoing references help us only by showing what the 
phrase "final settlement," as used in our code, does not mean. 
In another quarter we find an apt definition applying directly 
to the use of this phrase in our own code. In Anderson's 
Dictionary of Law, title "Account," we find: "First Account; 
Partial Account; Final Account. Designate the number or 
completeness of accounts presented to the court for confirma- 
tion. " The examination of the different sections of our code 
makes it clear that it is in this sense that the term is used by 
us, and that a "final account" (except as used in sections 1652 
and 1653, of which we will speak later), merely means a com- 
plete account of all matter necessary for the complete ad- 
ministration of the estate, and that a "final settlement" means 
such a settlement as completes all matters which the court 
should act upon to cover all the true functions of administra- 
lion, namely: which provides for the payment of all presented 
ilebts, which passes upon all the receipts and disbursements 
up to the date of the payment of the debts and the expiration 
of the normal period of administration, and puts the court in 
possession of data sufficient to determine and ascertain the 
distributable assets. If this is the meaning of the term "final 
settlement," as used in our code, it is evident that the recent 
settlement of the account filed herein on October 19th was a 
' ' final settlement, ' ' and that the estate is therefore ready for 
distribution. 

It is admitted, or, at any rate, clear from the record herein, 
that when this account was filed, on October 19th, the estate 
was ready for a "final account," or for a "final settlement" 
of the accounts. All of the property had been administered 
and reduced to possession by the executors ; all claims pre- 
sented had been paid ; the time for presentation of claims had 
expired sixty days previously ; there was nothing further to be 
done by the executors by way of completing their administra- 
tion, except to render their account. Suppose, now, that the 
executors had, on October 19th, actually desired to close up 
the estate and to render a "final account" in the manner re- 
quired of them by the statute. Suppose that they had, on 
October 19th, rendered an account which they designated a 

final account." In what respect would that account have 
differed from the account which they actually did render? 



li 



88 Coffey's Probate Decisions, Vol. 3. 

Evidently it would not have differed in a single line or item, 
but solely in the title. The account which they did render 
covered all their receipts and disbursements up to the day of 
rendition; showed by references to the inventory the full 
amount of the property in their hands ; showed the payment 
of all presented claims, and gave the court all the data neces- 
sary for the due settlement and distribution of the estate. In 
other words, the account was a ' ' final or complete account ' ' as 
far as any account possibly could be such ; and the court should 
treat it as such and proceed with the distribution asked for. 

Counsel for the executors has urged that the account should 
not be considered final, because it does not set forth the amount 
of the executors' commissions or of the attorney's fees, and 
because there have been sums accruing to the estate and re- 
ceived by it since the account was filed ; but the matter of 
fees and commissions is fixed by the court at the time of the 
final settlement or distribution; and, as to the items accruing 
after the making of the account, they could not have been in- 
cluded in it. In any estate which has a current income there 
are items which must accrue after the rendering of the final 
account and prior to its settlement. Section 1665 distinctly 
provides for this in setting forth that a supplementary state- 
ment of receipts and disbursements must be filed by the ex- 
ecutors at the time the distribution is made. 

Section 1622, Code of Civil Procedure, provides for "an ex- 
hibit" by the executor within six months after his appoint- 
ment; and there is nothing else whatsoever in the code (except 
in section 1651 and the sections supplementary to it) to sug- 
gest that in any ordinary estate there is to be any account but 
the one, and that, a final or complete account. The whole 
spirit of the code is to provide for the winding up of the estate 
within the year. Section 1453, for instance, provides for the 
delivery of the state to the heirs at the end of the period of 
notice to creditors, whether the accounts be then settled or 
not. Section 1628 provides for the rendering of a full account 
within thirty days after the notice to creditors has expired. 
Section 1647 provides for orders for payment of claims — to be 
made when the accounts (that is, the account required by sec- 
tion 1628) are settled. The same section expressly provides 
that if the assets of the estate are exhausted by such order of 



Estate of Callaghan. 89 

payment, "the account must be considered as a final ac- 
count," and the estate must be wound up accordingly. This 
last section clearly shows that the "finality" of the account is 
to be determined by reference to its completeness and to the 
circumstances of the estate, and not by reference to the title 
which the executors choose to apply to it. 

There is no suggestion of a second or later account until we 
come to section 1651, and that section fully establishes the 
position here assumed: "If the whole of the debts have been 
paid by the first distribution (that is, first order for payment 
of debts), the court must direct the payment of legacies and 
the distribution of the estate .... as provided in the next 
chapter." And the distribution provided in the next chap- 
ter is "distribution on final settlement," such as is now de- 
manded. Evidently, then, an ordinary settlement of account 
and distribution, as provided in section 1651, is a distribution 
after ' ' final settlement, ' ' no matter what the account may have 
been termed. 

The second portion of section 1651 shows that distribution 
is to be postponed, and a second and "final account" to be 
rendered, only where there are special reasons for it, and 
where the court makes a special order to that effect ; and, as 
there are no such reasons in the present case, that latter por- 
tion of the section has no effect. The language is : "If there 
be debts remaining unpaid, or if for other reasons the estate 
be not in a proper condition to be closed, the court must give 
such extension of time as may be reasonable for a final settle- 
ment of the estate." And the next two sections, providing 
for the filing of a "Final Account," require it to be filed 
within the time designated by the court's extension. Is it not 
clear, then, that there is no such thing contemplated as a 
"final" or second account, by the code as a whole, except in 
the single case where the court, on settling the original or 
general account, determines that the estate is not ready for 
closing, and fixes a limit for the rendering of another account? 

The term "final account," then, as used in section 1652, ap- 
plies only to the cases mentioned in the last half of section 
1651, and not to the case at bar; and the term "final settle- 
ment," as used in section 1665, applies not specially to the 
settlement of a "final account" (in the sense of a second ac- 



90 Coffey's Probate Decisions, Vol. 3. 

count, as prescribed by section 1652), but to any settlement 
of account which completes the payment of the debts and de- 
termines the distributable assets. 

2. As to the notice of the hearings : 

Three classes of notice are provided for by the code: 
1. Where the account is filed by itself, notice of settlement 
must be given as prescribed by section 1633; 2. Where the 
petition for distribution is filed by itself, notice of the hearing 
must be given as prescribed by section 1668 ; 3. Where the ac- 
count and the distribution are filed together, the notice must 
be given as prescribed by section 1634. 

In the present case the account was filed on October 19th, 
and the petition for distribution on October 24th. Notice was, 
therefore, given of each as prescribed by sections 1633 and 
1668; and section 1634 has no application. That section only 
applies where the account and petition are filed together ; and 
the requirement that the "notice should state those facts" 
only applies where "those facts" exist — that is, where the ac- 
count is for final settlement, and a petition for distribution is 
filed therewith. 

The foregoing are the views which the court accepts as en- 
titling the applicants to distribution, which is decreed accord- 
ingly. 



Estate of THERESA FAIR, Deceased. 

[No. 11,390; decided November 19, 1892.] 

Wills — Rules of Interpretation. — The interpretation of a will de- 
pends upon the intention of the testator, to be ascertained from a 
full view of everything contained within the four corners of the 
instrument. 

Wills — Rules of Interpretation. — The intention of the testator, as 
gathered from the whole scheme of the will and all its provisions, 
must prevail. 

Wills — Interpretation of Trusts. — Such a construction must be put 
upon a will as will uphold all its provisions and enable the trustees 
therein named to perform each and all of the trusts imposed upon 
them. 

Wills.— The Intendment is that a Will as Written correctly mani- 
fests the intentioa of the testator, and the whole thereof. 



Estate of Fair. 91 

Wills. — Effect to Every Part of a Will must be given, if possible. 

Wills. — All Parts of a Will are to be Construed in relation to each 
other so as to form one consistent whole, if possible. 

Wills — Modification of One Clause by Another. — An intent inferable 
from the language of a particular clause may be qualified or changed 
by other portions of the will evincing a different intent. 

Wills. — The Intention of the Testator is the First and great object 
of inquiry in the interpretation of a will, and to this object technical 
rules must yield. 

Wills — Construction. — Where a Testatrix Makes a Bequest of Money 
to one son to be paid when he attains the age of thirty-five years, 
and a bequest to another son to be paid when he attains the age of 
thirty years, and where she further provides that if either son dies 
the portion allotted him shall be paid to the other, and the first son 
dies without attaining the specified age and before the second at- 
tained the age of thirty years, an application by the surviving son 
before reaching thirty years of age for the portion allotted to the 
deceased son is premature and must be denied. 

Theresa Fair died on September 13, 1891. The will, set 
forth in the opinion below, was admitted to probate on Octo- 
ber 5, 1891. 

On May 11, 1892, Charles L. Fair filed a petition wherein 
he alleged that his brother, James G. Fair, Jr., had died on 
February 12, 1892, under the age of thirty years, and with- 
out wife or lawful issue surviving him. He further alleged 
that by the terms of the will the testatrix bequeathed the 
sum of $500,000 to James G. Fair, Jr., and directed that the 
same be paid to him when he shall h^ve attained the age of 
thirty-five years, and that, in case he should die without wife 
or lawful issue surviving him, the portion by said will so 
allotted to him should be paid to petitioner, and that peti- 
tioner is entitled to receive said sum of $500,000, and he 
prayed for distribution thereof to him. 

At the time this petition was filed Charles L. Fair was 
twenty-five years of age. 

In the answer to the petition the executors alleged that it 
was the intention of the testatrix, by her will, to prohilnt 
petitioner from receiving any portion of her estate, and the 
executors from paying to him any portion of her estate, prior 
to his attaining the age of thirty years, except the monthly 
allowance of $500 specified in the will. 



92 Coffey's Probate Decisions, Vol, 3. 

W. S. Goodfellow, for the petitioner. 
R. S. Mesick, for the executors and trustees. 

COFFEY, J. The question presented in this case for deci- 
sion by the court is, "When should the trustee appointed by 
the will pay to the petitioner under its terms the $500,000 
therein primarily allotted to his brother, James Q. Fair, Jr., 
as his portion of the estate of Theresa Fair, deceased, their 
mother, the said James having died long before his portion 
or that of Charles could by the terms of the will become due 
and payable had James lived? 

The petitioner claims that under the will the portion 
allotted to James should be paid at once to him, while the 
respondents contend that immediate paj'ment thereof is for- 
bidden by its terms, and that the trustees cannot comply with 
the demands of the petitioner without violating their trust as 
defined by the testatrix in her will. 

The petitioner, Charles L. Fair, bases his claim of the right 
to have paid to him without delay the share primarily allotted 
to James upon two clauses of the will as follows : 

"I give and bequeath to my son, James Graham Fair, Jr., 
the sum of $500,000, and direct the same to be paid to him 
when he shall have attained the age of thirty-five j^ears, but 
not before then, and that meantime there shall be paid to 
him monthly the sum of $500. 

"In case my said son, James Graham Fair, Jr., die with- 
out wife or lawful issue surviving him, the portion hereby 
allotted to him shall be paid to my said son, Charles Lewis 
Fair, if living, and, if not living, then to his surviving wife 
or lawful issue, if any there be." 

The will of the testatrix reads in full as follows : 
"In the name of God, Amen. 

"I, Theresa Fair, of the City and County of San Fran- 
cisco, and State of California, of the age of forty j-ears and 
upwards, and being of sound mind and memory, do make, 
publish and declare this my last will and testament in manner 
following, that is to say: 



Estate op Fair. 93 

"I hereby give, bequeath and devise all my real and per- 
sonal estate, of what nature or kind soever and wheresoever 
situated, to John W. Maekay and Richard V. Dey, the execu- 
tors of my last will and testament hereinafter nominated and 
appointed, in trust, for the payment of my just debts and the 
legacies and charges upon the said estate hereinafter specified, 
to be held and possessed by them, with power to sell and dis- 
pose of the same, or any part thereof, at public or private 
sale, at such time or times, and upon such terms and in such 
manner as to them shall seem meet, and to re-invest any sur- 
plus proceeds of such sales for the best interest of said estate 
until the full and complete disposition of said estate by them, 
which I hereby direct shall by them be made in compliance 
with the following: 

"I give and bequeath to my daughter, Theresa Alice Fair, 
the sum of one million five hundred thousand dollars, and 
direct the same to be paid to her upon her attaining the age 
of twent3''-five years, but not before then, and that meantime 
there shall be paid to her monthly the sum of twenty-five 
hundred dollars. 

"I give and bequeath to my daughter, Virginia Fair, the 
sum of one million five hundred thousand dollars, and direct 
the same to be paid to her upon her attaining the age of 
twenty-five years, but not before then, and that meantime 
there shall be paid to her monthly the sum of twenty-five 
hundred dollars. 

''I give and bequeath to my son, James Graham Fair, Jr., 
the sum of five hundred thousand dollars, and direct the 
same to be paid to him when he shall have attained the age 
of thirty-five years, but not before then, and that meantime 
there shall be paid to him monthly the sum of five hundred 
dollars, 

*'I give and bequeath to my son, Charles Lewis Fair, the 
sum of five hundred thousand dollars, and direct the same 
to be paid to him when he shall have attained the age of 
thirty years, but not before then, and that meantime there 
shall be paid to him monthly the sum of five hundred dollars. 

"The rest and residue of my estate I give and bequeath to 
my two daughters, above named, to be divided between them 



94 Coffey's Peobate Decisions, Vol. 3. 

equally, share and share alike, and to be paid to them when 
ray said daughter Virginia shall have attained the age of 
twenty-five years. 

"In ease my said son, James Graham Fair, Jr., shall die 
without wife or lawful issue surviving him, the portion allot- 
ted to him shall be paid to my said son, Charles Lewis Fair, 
if living, and, if not living, then to his surviving wife or law- 
ful issue, if any there be. 

"In case my said son, Charles Lewis Fair, shall die with- 
out wife or lawful issue surviving him, the portion allotted 
to him shall be paid to the said James Graham Fair, Jr., if 
living, and, if not living, then to his surviving wife or law- 
ful issue, if any there be. 

"In ease both the said James Graham Fair, Jr., and 
Charles Lewis Fair shall die without wife or lawful issue 
surviving them, then the portions allotted them shall be paid 
to my said daughters, Theresa Alice Fair and Virginia Fair, 
share and share alike. 

"In case of the death of my said daughter, Theresa Alice 
Fair, without husband or child surviving her, the portion 
allotted to her shall be paid, one-half to my daughter, Vir- 
ginia Fair, and the other half in equal portions to the said 
James Graham Fair, Jr., and Charles Lewis Fair. 

"And in case of the death of my said daughter, Virginia 
Fair, without husband or child surviving her, the portion 
allotted to her shall be paid, one-half to my daughter, Theresa 
Alice Fair, and the other half in equal portions to my sons, 
James Graham Fair, Jr., and Charles Lewis Fair, aforesaid. 

"I hereby nominate and appoint my daughter, Theresa 
Alice Fair, to be sole guardian of the person and estate of my 
said daughter, Virginia Fair, during the period of her minor- 
ity. 

"I hereby nominate and appoint the aforesaid John W. 
]\Iackay and Richard V. Dey to be the executors of this my 
last will and testament, hereby revoking all former wills by 
me made ; and I do further direct that no bonds be required 
of my said executors. 

"It is my special wish and I request and direct that R. S. 
Mesick, Esq., act as the legal adviser of the executors of my 
will in the settlement and distribution of my estate. 



Estate of Fair. 95 

"In witness whereof, I have hereunto set my hand and 
seal, this eighteenth day of April, in the year of our Lord 
one thousand eight hundred and eighty -eight. 

''THERESA FAIR. (Seal.)" 

Attestation clause and witnesses' subscription follow in 
due form of law. 

The intention of the testatrix, as gathered from the whole 
scheme of the will and all its provisions, must prevail; and 
such a construction must be put upon that instrument as will 
uphold all its provisions and enable the trustees to perform 
each and all of the trusts imposed upon them thereby. 

The scheme of the testatrix was to make provision for each 
of the children in the form of a temporary monthly allow- 
ance, and to give them full possession of the principal sura 
bequeathed to them when they should attain a certain pre- 
scribed age. The one purpose of the testatrix appears to 
have been to make adequate provision for the children and 
their maintenance in life. The postponement of possession of 
their legacies was a precautionary measure to guard against 
the principal sum being lost or wasted, and the legatees being 
left without provision for their maintenance. This purpose 
is manifested in the will, and forms its prominent feature; 
but although the attention of the testatrix was bent upon this 
subject, petitioner's counsel contends that she did not think 
proper to continue to apply the same protective measures to 
legacies payable over to a survivor, and counsel conjectures 
that her reason may have been that such measures were 
not necessary, inasmuch as such survivor had already been 
protected to the extent of his original legacy, which would be 
preserved in any event, and so no disastrous consequence 
would ensue, even if the original legacy should be lost or 
wasted. 

This will is in writing, and is required by law so to be. 
Its phraseology, as well as extrinsic evidence, shows that it 
was prepared by an attorney. The intendment must be that 
the will, as written, correctly manifests the intention of the 
testatrix, and the whole thereof. The express words of the 
will are that in case of the death of James "the portion 
allotted to him shall be paid to my son, Charles Lewis Fair, 
if living," and counsel for petitioner claims that to annex 



96 Coffey's Probate Decisions, Yol. 3. 

the further condition — "and if he be then of the age of 
thirty years" — would be manifestly tx) add to and vary the 
terms of the will. This cannot be done, says the counsel, 
even if it were conceded or absolutely demonstrated as an 
extrinsic fact that the testatrix intended the gift to be so 
conditioned or limited. It is not the intention simply, but 
the expressed intention, of the testatrix to which effect must 
be given. 

There are here two separate legacies ; one is given to James 
directly, the other is given to Charles directly. By virtue of 
subsequent clauses of the will, in the case of death, the one 
succeeds to the other's legacy. Charles claims this $500,000, 
not under the clause making original provision for him, but 
under the subsequent clause substituting him for his brother 
as to the letter's legacy. By what authority, asks the counsel 
for petitioner, can a limitation annexed to the first legacy 
only be engrafted upon the second also? Such, the counsel 
asserts, is not the expressed will of the testatrix — to say that 
she so intended, or that such would be in harmony with her 
general purpose, is to indulge in mere conjecture. It may or 
may not have been so ; the actual intent cannot now be posi- 
tively ascertained. The court is confined to the will as it is 
written. 

The court cannot agree with counsel for petitioner in his 
contention that the actual intent of the testatrix cannot be 
ascertained from the will as it is written. On the contrary, 
the design and scheme of the testatrix are ascertainable and 
expressed with sufficient clearness, if not with absolute ac- 
curacy of verbal expression. The design and scheme were, 
without doubt, as gathered from the entire instrument, to 
secure to the children, upon attaining a certain age, the full 
possession and enjoyment of the portion of the estate allotted 
to them, and meanwhile to secure to them an income sufficient 
to support their station in society. 

It is clear to the court, from the study of the whole will, 
that James was not to enter into the enjoyment of his por- 
tion until he should have reached the age of thirty-five years, 
nor Charles until thirty years, and that neither was to have 
more than a monthly allowance until the expiration of either 
period. To give to either before that point of time any per- 



Estate op Fair. 97 

tion of the capital would be to violate the intention of the 
testatrix. In carrying this intention into effect it is permis- 
sible to resort to any reasonable intendment. 

It should seem unnecessary to quote the commonplaces of 
construction in this connection, as, for example, that the 
interpretation of a will must depend upon the intention of 
the testator, to be ascertained from a full view of everything 
contained within the "four corners" of the instrument; or, 
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; or, that an intent inferable from the language of a 
particular clause may be qualified or changed by other por- 
tions of the will evincing a different intent, for the substance 
and intent, rather than words, are to control. 

The intention of the testatrix is the first and great object 
of inquiry, and to this object technical rules to a certain 
extent are made subservient. 

It is a cardinal rule of construction that effect must be 
given, if possible, to every part of a will. 

There is, perhaps, no rule of construction of wider applica- 
tion of 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 unintelligible. 

Applying these familiar principles and rules to this will, 
it is manifest that the testatrix imposed upon each of the 
legatees a period of waiting for the enjoyment of their 
legacies, except the monthly allowances, which is not only 
binding upon the legatees, but also upon the trustees whose 
duties under the will are therein defined with as much pre- 
cision as the rights of the legatees. 

No reason can be imagined why the testatrix should have 
been less solicitous concerning the $500,000 in question than 
concerning the $500,000 primarily given by her to the peti- 
tioner, or why she should intend to make any distinction 
between the two sums as to the term of waiting. It seems 
to the court that in order to set aside or modify the rule of 
waiting imposed by the will, plain and specific language 
should be discovered in that instrument manifesting an in- 
tention on the part of the testatrix so to do. 

Prob. Dec, Vol. Ill — 7 



98 Coffey's Probate Decisions, Vol. 3. 

The clause in the will upon which the petitioner relies for 
immediate payment of the legacy in question contains no 
word indicating when the trustees shall pay the amount. 
Nor does that clause define the time when the death of the 
legatee, James, must occur in order that his share may be- 
come payable to Charles. The clause is elliptical both in 
respect of when the death of James must occur and when 
the share upon the occurrence of his death must be paid by 
the trustees to the petitioner. 

It is certain that the testatrix did not intend that in case 
James died after having attained the age of thirty-five years, 
and after having been put in possession of the legacy by the 
trustees, it should ever revert to the petitioner or be called 
back into the hands of the trustees. The time when the 
death of James must occur to entitle Charles to be paid this 
share becomes necessarily a matter of construction and inter- 
pretation upon the reading and consideration of every other 
clause in the will. So, it may be said of the time when the 
trustees should pay to the petitioner the share allotted to 
James, it is a matter to be gathered from all the provisions 
contained in the will, and its general purport and purpose. 

It seems to the court that no one can read the clauses of 
the will preceding that upon which the petitioner relies with- 
out being convinced that the testatrix had no intention of 
authorizing the payment to Charles of anj-thing mentioned 
in the will, except the monthly allowance, prior to his at- 
taining the age of thirty (30) years; and that the will must 
be read as an entirety, and the conditions and limitations 
which precede the clause relied upon must be applied thereto, 
and, when so read, the will is destructive of the claim of peti- 
tioner. 

It is the opinion of the court that the clause relied upon 
by the petitioner cannot be isolated from the context and 
construed as a separable section of the testament, but that it 
must be read and construed as an integral portion of that 
instrument, to be interpreted with the other constituents of 
the will. 

It follows that the petition for partial distribution filed 
herein is prematurely presented, and should be and it is 
denied. 



Estate of Miehle. 99 

The Principal Case was Affirmed in 103 Cal. 342, 37 Pac. 406. 

In Construing a Will the Intention of the Testator should govern, 
and that intention should be ascertained from the words of the will 
itself: Estate of Hale, 2 Cof. Pro. Dec. 191; Estate of Pearsons, 2 Cof. 
Pro. Dec. 250; Estate of Berton, 2 Cof. Pro. Dec. 319. 

All Parts of a Will Should be Considered in relation to each other, 
so as to form one consistent whole. Every portion of the instrument 
should be made to have its just operation, if possible: Estate of 
Maxwell, 1 Cof. Pro. Dec. 145; Estate of Behrmann, 2 Cof. Pro. Dec. 
513; Estate of Berton, 2 Cof. Pro. Dec. 319. 



Estate op ERNST MIEHLE, Deceased. 

[No. 13,071; decided January 24, 1893.] 

Will — Eight to Withdraw from Files. — Where a will has been filed 
for probate but the evidence adduced is insufficient to prove its execu- 
tion, the court has no authority to order the withdrawal of the will 
from the files and direct a commission to be issued to take the testi- 
mony of the subscribing witnesses in a foreign land, the will to ac- 
company the commission and be returned with it to the court. 

Carl T. Graef, for the applicant. 
Gustav Gutsch, contra. 

COFFEY, J. On December 30, 1892, an instrument pur- 
porting to be the last will of George E. Miller was filed in 
this court: Code Civ. Proc, sec. 1298. 

On January 9, 1893, George Ross, the person named in 
said instrument as the sole devisee thereunder and as the 
sole executor thereof, was, upon his application, by this court, 
appointed special administrator of the estate of said George 
E. Miller, who is alleged to have died on the twenty-fourth 
day of August, 1892, at Penang, Straits Settlements, and 
to have been a resident of the city and county of San Fran- 
cisco, state of California, at the time of his death. It is 
further alleged that the true name of the testator was Ernst 
Miehle. 

The instrument filed as aforesaid bears date on the twenty- 
third day of August, 1892. 



100 Coffey's Probate Decisions, Vol. 3, 

Application having been made to the court for the admis- 
sion of the alleged will to probate, the genuineness of the 
testator's signature was proved on the hearing. It was 
further shown that the persons who appear to have signed 
the instrument as subscribing witnesses are the commander, 
purser and chief mate of the steamship "Lightning," which 
plies between ports of the Chinese and Indian Seas, and that 
none of them can be brought -within the jurisdiction of this 
court for the purpose of examination. 

The evidence so far presented is insufficient to prove the 
will, and the applicants for probate desire now to take the 
depositions of the subscribing witnesses at Penang, Straits 
Settlements, where they can be most conveniently examined, 
and to exhibit to them the original document. 

The court is accordingly asked for an order authorizing the 
withdrawal of the alleged will from the files and directing 
a commission to be issued to the Consular Agent of the 
United States at Penang to take said depositions ; the will 
to accompany the commission, and to be returned with the 
same to the court. 

Questions arise, first, whether the court has the power to 
make the order; and, second, if so, whether it should make 
the order in the present case. 

Under our law it is the duty of the clerk to "take charge 
of and safely keep or dispose of, according to law, all books, 
papers and records which may be filed or deposited in his 
office" (section 4204, Political Code, and section 111, County 
Government Act of March 14, 1883: Stats. 1883, p. 299). A 
distinction is thus drawn between "books," "papers" and 
"records." Section 1855, subdivision 3, Code of Civil Pro- 
cedure, mentions "records" and "other documents" in the 
custody of public officers. To which of these classes does the 
instrument under consideration belong? 

The mere filing of an instrument purporting to be a last 
will does not make it a record. Nor does it seem that pro- 
ceedings resulting in the granting of special letters of ad- 
ministration to the person named as executor would have that 
effect: See the definitions of "record" in Webster's Diction- 
ary; also, Code Civ. Proc, sec. 1904. For the court, which, 
in making the appointment of a special administrator, must 



Estate op Miehle. 101 

give preference to the person entitled to letters testamentary 
(Code Civ. Proc., sec. 1413), cannot, in strictness of law, 
use an instrument, not yet admitted to probate, as evidence. 
In Castro v. Richardson, 18 Cal. 480, it was held: "That the 
record of probate is the only proof upon which a partj^ rely- 
ing on the will can offer it in evidence." 

If the last-mentioned decision correctly defines the law, 
then it is not only immaterial whether an instrument filed as 
a will, but not yet probated, may be designated as a record 
or not, but it is also clear that section 1950, Code of Civil 
Procedure, does not support the application at bar. Accord- 
ing to that section a record, *'a transcript of which is admis- 
sible in evidence," may, in certain cases, be removed from 
the custody of its legal keeper upon an order of the court; 
but if the original itself cannot be admitted as evidence, a 
transcript is likewise inadmissible. 

All other cases of (intentional) removal are covered by 
sections 113 and 114 of the Penal Code, which make the re- 
moval a criminal offense : See section 7, Penal Code, as to 
''willful." 

In Houston v. Williams, 13 Cal. 27, 73 Am. Dec. 565, much 
is said about the inherent right of a court to control its records 
and papers on file, but the reasoning does not apply to the 
present case nor enlarge the scope of section 1950, Code of 
Civil Procedure. 

The court, consequently, lacks the power to authorize the 
withdrawal. If it were otherwise, the present necessity of 
such an exceptional measure might, in the second place, be 
seriously questioned. The execution of the instrument is 
alleged to have taken place about five months ago, and the 
remembrance of the facts on the part of the subscribing wit- 
nesses must be fresh and distinct; if they swear that they 
never witnessed but one last will of the testator, and that this 
occurred on the day preceding his death, their testimony, in 
connection with other facts to be elicited by the examination, 
will go far toward establishing the identity of the instrument ; 
and if more than a reference, in the interrogatories, to dates 
and surrounding circumstances were needed, either a simple 
or a photographic copy of the paper, which covers only one 
page, would, in aU likelihood, answer the purpose. 



102 Coffey's Probate Decisions, Vol. 3. 

Counsel for applicant seems to attach importance to the 
claim that if the petition were granted and the alleged will, 
with the commission, forwarded by the clerk of the court, 
through the United States mail, to the Consular Agent of the 
United States at Penang, who, by reason of his appointment 
as commissioner and of his acceptance thereof, would be an 
officer of the court, the document might be deemed at all 
times to have remained in the custody of the court, or at least, 
of the United States. But the control of the court and its 
right to compel the performance of duties by its officers do 
not extend beyond the territorial limits of the state. If the 
commissioner, whether an officer of the United States or any 
other person, residing on foreign soil, should fail to use and 
return the paper as directed by the court, the latter, in its 
judicial capacity, could do nothing to enforce obedience. The 
aid of the federal government, and probably diplomatic inter- 
cession, would have to be invoked for that purpose. In view 
of these and of other risks, incidental to the proposed re- 
moval, and of possible interests which parties who may here- 
after appear in the matter of said estate may have in the 
original instrument, the court cannot properly deprive itself 
and the clerk of the actual control over the document, unless 
by law expressly and distinctly authorized so to do. Compare, 
in this connection, the "limitations" referred to in Houston 
V. Williams, 13 Cal. 24, 28, 73 Am. Dec. 565. 

These views, if sound, render it unnecessary to examine 
the question whether, if the court should grant the request, 
and the original document should not be afterward produced, 
either a simple or a certified copy of it could be admitted as 
evidence. And it would be difficult, if not impossible, to an- 
ticipate the causes of such nonproduction, and the various 
grounds upon which, under our statutes and decisions — as, 
e. g., sections 1299, 1937 and 1855, subdivisions 1 and 3, Code 
of Civil Procedure, and Gordon v. Searing, 8 Cal. 49 — the 
court might be asked to admit the copy in the place of the 
original. 

It follows that the application for removal should be denied. 



Guardianship of Murphy. 103 



Guardianship of JOHN H. MURPHY et al., Minors. 

[No. 6,435; decided June 16, 1893.] 
Change of Venue — GuardiansMp Proceedings. — The probate court 
has power to order the place of trial of guardianship proceedings to 
be changed, notwithstanding there is no express authority therefor 
in the statute. 

On July 15, 1887, letters of guardianship of the persons and 
estates of John H. Murphy, Mary A. Murphy, James F. Mur- 
phy, Albert E. Murphy and George Murphy, minor children 
of Patrick S. Murphy, deceased, and Margaret A. Murphy, 
were issued to their mother by the superior court of the city 
and county of San Francisco. At the time of the issuance of 
the letters the minors resided with their mother in said city 
and county. 

On June 13, 1893, the guardian made an application, sup- 
ported by affidavit, for a change of venue to Nevada county. 

J. F. Riley, for the guardian. 

COFFEY, J. This is a motion to change place of proceed- 
ings in the above-entitled matter from the superior court of 
the city and county of San Francisco to the superior court of 
Nevada county. 

Section 1713 of the Code of Civil Procedure provides that, 
"Except as otherwise provided in this title (title XI), the 
provisions of part II of this code are applicable to and con- 
stitute the rules of practice in the proceedings mentioned in 
this title." "This title" embraces proceedings in probate, 
courts, including guardianship of minors. Section 397 of the ' 
Code of Civil Procedure provides that "The court may, on 
motion, change the place of trial in the following cases : . . . . 
3. When the convenience of witnesses and the ends of justice 
would be promoted by the change." There can be no doubt 
that the convenience of witnesses and the ends of justice would 
be promoted by the change in this case, as the guardian and all 
the minors reside in the county of Nevada and all the prop- 
erty of the estate is situated in said county, as appears by the 
affidavit on file herein. This section — 397 — is a portion of 
part II, referred to in section 1713. 



104 Coffey's Probate Decisions, Vol. 3. 

The question arises, Is it anywhere provided in title XI that 
the rules of transfer of proceedings in ordinary civil actions , 
as stated in section 397, do not or shall not apply to the re- 
moval or transfer of probate proceedings? A careful exam- 
ination of all the sections of this title shows no such provision. 
But there is no express provision of the statute authorizing 
the place of trial to be changed in such cases, and this might 
be used as an argument against the change, and prior to the 
decision of People v. Almy, 46 Cal. 246, such contention was 
' made. In that case the probate court of JMarin county, after 
three juries had failed to agree (in the matter of the Estate 
of James Black, deceased), entered an order changing the 
place of trial to the probate court of the city and county of 
San Francisco. The opponents of the will claimed that the 
probate court of Marin county had no jurisdiction to change 
the place of trial and that the order was void, and moved the 
said probate court of Marin county to proceed with the trial. 
The court refused, and the opponents of the will applied to the 
supreme court for a writ of mandate to compel it to proceed 
with the trial. That court said : ''The only question raised by 
the application for the writ is whether the court had the au- 
thority and jurisdiction to enter the order changing the place 
, of trial. There is no express provision of the statute authoriz- 
' ing the place of trial to be changed in such cases." The court 
then proceeded to examine the sections of the practice act and 
probate act corresponding to the above-quoted sections, and 
which are practically identical with them, and some other sec- 
tions of the probate and practice acts, and concluded: "We 
entertain no doubt whatever that in a case like this it is com- 
petent for the probate court to order the place of trial to be 
changed." The court has squarely decided that although 
there is no express provision of the statute authorizing the 
change of place of trial, yet the court has the undoubted power 
under the law to order the place of trial to be changed. 
Motion granted. 



Guardianship of Taylor. 105 



Guardianship of FRANK B. TAYLOR, a Minor. 

[No. 1,946; decided July 22, 1886.] 
Guardian — Considerations in Appointing. — In the appointment of 
guardians of minors the court is to be guided by the considerations 
specified in section 246 of the Civil Code. 

Guardian — Relatives and Strangers. — When two persons, one a 
relative and the other not, apply for guardianship of a person, all 
other things being equal, the relative should be appointed. 

Guardian. — After the Mother the Next of Kin of an infant under 
fourteen years is entitled to be appointed guardian. 

Guardian. — Where a Stranger has been Appointed Guardian of a 
minor, the father being deceased and the mother unfit, and thereafter 
the mother dies having indicated a wish that a relative be appointed 
guardian, the appointment of the stranger may be revoked and the 
relative appointed if it appears for the best interests of the child. 

Guardian — Grounds for Removal. — Section 253 of the Civil Code, 
which specifies the causes for which a guardian may be removed, 
must be read in connection with the other provisions of the codes on 
the subject of guardianship. 

Guardian — Appointment of Stranger, Whether Estops Relative. — 
The appointment of a stranger as guardian of a minor does not estop 
a relative, who had no notice, to petition for a revocation of the 
stranger's letters and for his own appointment. 

Guardian. — It is the Duty of a Guardian to Supply the place of 
a judicious parent. He stands in the place of a parent, and supplies 
that watchfulness, care and discipline which are essential to the 
young in the formation of their habits. 

On December 8, 1882, Nathaniel Hunter, secretary of the 
California Society for the Prevention of Cruelty to Children, 
was appointed guardian of Frank B. Taylor, a minor, whose 
father was dead at the time and whose mother had been guilty 
of cruelty and neglect toward him. 

Thereafter the mother died, and on February 9, 1886, John 
Tucker, a cousin of the minor's mother, applied for the revo- 
cation of the letters theretofore issued to Hunter, and for his 
own appointment as guardian. In his petition Tucker alleged 
that he had no knowledge of Hunter's application until long 
after his appointment. 

J. E. Jarrett and Charles "W. Bryant, for the applicant. 
QTames I. Boland, for Nathaniel Hunter, opposed. 



106 Coffey's Probate Decisions, Vol. 3. 

COFFEY, J. John Tucker bases his application for let- 
ters of guardianship upon three grounds : 

1. He is a relative, and as such is entitled to the letters : Civ. 
Code, sec. 246, subd. 3, par. 4. 

2. He is one who was clearly indicated by the wishes of the 
minor's deceased mother, as her choice of guardian in case of 
her death : Civ. Code, sec. 246, subd. 3, par. 2. 

3. He is one of the next of kin of minor, and as such has a 
natural right to the guardianship, at common law: Reeves' 
Domestic Relations, 315. 

The testimony shows that Tucker is competent to act as 
guardian, and that it is for the best interest of the ward that 
he be appointed. He has not surrendered his right, and it has 
not been taken away from him by the judgment or order of 
any court. 

Counsel opposing Tucker's application has referred to a 
previous order of this court appointing Nathaniel Hunter 
guardian. He has not expressly urged the proposition that a 
stranger to a record in judicial proceedings can have his future 
rights taken away from him ; nor has he contended that Tucker 
was estopped by proceedings of which he had no notice. 

He has referred to section 253, Civil Code, and asserts that 
Hunter could not be removed except for the causes therein 
mentioned. It is unnecessary to cite authorities that all sec- 
tions of the code must be read together, and that all must stand 
if possible. 

By the construction contended for, if parents should be 
absent from the state temporarily and leave their children with 
friends, and such friends should procure letters of guardian- 
ship, the letters could not be revoked on the ground of the 
superior rights of the parents. The parents would be bound 
by a record to which they were not parties, and would be com- 
pelled to show the incompetency of the guardian who claimed 
that their rights were taken away from them "without due 
process of law." 

Tucker's right has not been taken away from him by due or 
any process of law. He has not relinquished it, and now for 
the first time he appears in this court on equal terms with Hun- 
ter, and the previous order, as to Tucker, is as if it had not 
been. 



Guardianship of Taylor. 107 

The parents may or may not have been estopped by it, but 
there is no more estoppel as to Tucker than if the records were 
blank. 

We have searched the books, and we cannot find a single 
case where counsel have urged the proposition that a person is 
bound by a record to which he is a stranger, when such record 
purports to devest him of a right, or where a text-writer or 
court have ever considered such a question. 

The courts in New York, where the law of guardianship is 
similar to ours, and where a section of their code exists simi- 
lar to section 253, Civil Code, have uniformly disregarded 
orders appointing guardians where notice is not given to rela- 
tives, if the orders are attacked by the persons not notified and 
who have a right to the appointment. 

Their code is broader in its language than ours as to the 
discretion of the court in ordering notices to be given; yet it 
is said that it is a legal and not an arbitrary discretion. 

We cannot find an instance where the position urged here 
was ever presented before the New York courts: Matter of 
Feeley, 4 Redf . 306 ; Underbill v. Dennis, 9 Paige, 208 ; Moore- 
house V. Cooke, Hopk. Ch. 258; Rickards' Case, 15 Abb. Pr., 
N. S., 7. 

Testamentary guardians are held by our supreme court to 
be on the same footing as probate guardians. 

In Lord v. Hough, 37 Cal. 657, the mother had notice of the 
appointment of the testamentary guardian, yet the supreme 
court did not consider the question here urged, but in sub- 
stance followed the reasoning of the New York courts and 
other courts of last resort throughout the United States. 

Tucker's right accrued on the death of Mrs. Taylor, and 
whether Tucker had or had not notice at the time Hunter was 
appointed is alike immaterial. 

In Lord v. Hough, 37 Cal. 657, on the application by the 
mother for guardianship, the same position was taken by the 
guardian already appointed as is here taken by Mr. Hunter, 
but the court decided, in substance, that the mother was en- 
titled to the trust ; being competent she could not be devested 
of this right, and the precedents of a semi-barbarous civiliza- 
tion were scouted by the court, and the position taken by 
counsel here was declared to be not the law. 



108 Coffey's Probate Decisions, Vol. 3. 

It is urged, however, that Tucker was requested by the 
mother of this child in 1880, and also after the seizure of the 
minor by Hunter, to assume the guardianship, and that he 
did not do so. Counsel for Hunter has given a good reason 
why he did not do so. The father was living at this time. 

The request of the mother while the father was living was 
of no legal effect under section 197, Civil Code, and conferred 
no rights whatever and imposed no duties upon him, as coun- 
sel correctly urged, any more than the request of the father in 
that respect in relation to Hunter. 

The request of the mother at that time in relation to Tucker, 
and that of the father relative to Hunter, are absolutely void, 
except as circumstances showing the mother's continued and 
long entertained desire. 

If, morally, any duty was imposed on Tucker during these 
years, he explained his action consistently with the highest 
principles of honor and right feeling. 

This court had adjudged the parents unfit to care for the 
child. 

If Tucker, as a relative of the deceased mother and also her 
friend and the friend of its father, had secured letters of 
guardianship, could he have resisted the longing and impor- 
tunities of the child's mother to have the care of her offspring? 

The responsibility would have been a divided one, and he 
would have been in a perpetual war between the kindliest feel- 
ings of his nature and the orders of this court. 

Tucker was of opinion that after her husband's death the 
mother was conquering her disposition to drink, taught her 
and forced on her by Taylor, and that the child was better 
with her ; as a gentleman he could not place himself in antag- 
onism with either the court or his better nature. Had he 
accepted the guardianship and refused the care of the child to 
its mother, his relative and friend, it would have shown in him 
a hardness of heart which would have been conclusive evidence 
of his unfitness for this trust. 

Another portion of the testimony might be here referred to : 
Tucker has testified that he is the owner of income bearing 
property sufficient for all his needs, and that he is in such a 
financial position that he does not seek contracts in his line of 
business other than those in which there is ample remunera- 



Guardianship of Taylor. 109 

tion for the exercise of his highest skill. That on his own ac- 
count he cares nothing for the guardianship, and that he is 
making the contest solely in compliance with the request of his 
dying relative — his promise to her, and for the good of the 
child. 

This motive, from the argument of counsel, Ls not under- 
stood by Mr. Hunter. Because Tucker is actuated by purer 
motives than men frequently are in such matters is no reason 
why his rights should be disregarded, or that he is the less in 
earnest concerning them. 

Gain is not Mr. Tucker's motive for appearing before this 
court ; the good of the minor is his motive. 

Another circumstance appearing in the testimony might be 
noticed here : It was proved, and there is no contradiction, that 
Mr. Taylor in his lifetime induced Mrs. Taylor to drink. Mr. 
Taylor's own sister testified that he was addicted to drink and 
that it brought about the ruin of his family. 

There is another broad proposition underlying the applica- 
tion of Tucker. He is of the blood of the ward, and Hunter 
is a stranger, and no court has yet decided that a stranger has 
a better right than the relative. Even if one parent should 
request the appointment of a stranger it would be disregarded 
when next of kin equally competent will take the trust. 

When two persons, one a relative and the other not, apply 
for guardianship of a person, all other things being equal, the 
relative should be appointed: Johnsen v. Kelly, 44 Ga. 485. 

Preference shall be given in all cases to the next of kin : Al- 
len V. Peete, 25 Miss. 29. 

The American rule is clearly stated to be that after the 
mother the next of kin of an infant under fourteen years is 
entitled to be appointed guardian, and that such claim can- 
not be disregarded unless for some satisfactory reason: Lord 
V. Hough, 37 Cal. 657-669. 

Tucker has a natural right and a right by statute to receive 
this trust. 

When Mr. Taylor, the father, died, the mother succeeded 
to the sole right of designating a guardian for the minor. 
Before that time it was a divided right, and it could only 
have been exercised by a joint request. No such joint desig- 



110 Coffey's Probate Decisions, Vol. 3. 

nation was made, but the mother did designate a guardian 
who was of next of kin and in every respect competent. 

No point can be urged about the mother's unfitness to desig- 
nate a person for guardian, because she has used her statutory 
right wisely. There is a clear legal right given this mother 
to designate, just as much so as is given the surviving hus- 
band or wife to designate an administrator. Her designation 
should not be disregarded unless unwisely exercised, and 
here the evidence shows the greatest wisdom in her selection. 

If her wishes and instructions to Mr. Kelly had been car- 
ried out by Mr. Kelly, a will would have been presented for 
probate making Mr. Tucker a testamentary guardian and 
executor of her estate. Could this court have refused the 
probate of the will and have then refused letters to Mr. 
Tucker? If not, then can this court refuse letters to Mr. 
Tucker upon her designation? 

Mr. Hunter has testified that he has never collected pay for 
the maintenance of this ward, although the^other had ample 
means in this city to pay for the child. His duties are such, 
by reason of the position he holds, that he could not easily 
have done so, and no one expected him to do so. 

It is the duty of a guardian to supply the place of a 
judicious parent. He stands in the place of a parent, and 
supplies that watchfulness, care and discipline which are 
essential to the young in the formation of their habits, and of 
which, being deprived altogether, they would better die than 
live: Schouler's Domestic Relations. Any stranger in blood 
who would perform these duties would be entitled to the let- 
ters against Mr. Hunter. This is not to his disparagement, 
but rather to his credit, for he does not intend to give up the 
onerous duties imposed upon him by the useful society of 
which he is secretary. 

Mr. Tucker has no direct heirs. He is a man of means 
and leisure. He is a master of useful callings, and well in- 
formed. The minor would receive from him the benefit of his 
experience, and in the course of nature, if his ward, would 
be likely to receive more property from his guardian than the 
amount of his present estate. There is no such prospect with 
Mr. Hunter as guardian. 



Guardianship of Taylor. Ill 

The desire of this mother that Mr. Tucker, friend of the 
family, and her relative, should be the guardian of her child 
and administrator of her estate was evidently uppermost in 
her mind continuously, for one of iMr. Hunter's witnesses, 
Mrs. Silver, the woman who lived at Mrs. Taylor's, and who 
unconsciously reflects Mrs. Taylor's oft-expressed wishes, is 
sufficient to impress the court with Mrs. Taylor's desire that 
Mr. Tucker should be appointed. 

One of ]\rrs. Taylor's last acts was to solemnly petition the 
court to remove Mr. Hunter. To disregard this wish of the 
mother and deny the application of Mr. Tucker would imperil 
the future prospects of this minor, in the opinion of this 
court. 

Mr. Hunter by law is not entitled to the guardianship as 
against Mr. Tucker. He is legally disqualified, and it is not 
for the best interest of the ward that he should continue in 
his office. 

Mr. Tucker is by law entitled to the letters ; he is legally 
qualified and it is for the best interests of the ward that he 
should be appointed, and the prayer of his petition is granted. 



The Considerations Governing the Court in Selecting a Guardian 
for a Minor are consirlered at length in Estate of Smith, 1 Cof. Pro. 
Dec. 1G9; Estate of Hansen, 1 Cof. Pro. Dec. 182. By reference to 
these authorities it will be found that while the rights of relatives to 
the custody of a child will not lightly be disregarded, nevertheless the 
welfare of the child is the controlling consideration, and a stranger 
may be preferred even to the mother if she is unfit for the trust. 
The court must regard the wishes of the deceased mother, expressed 
in her lifetime, if not inconsistent with the welfare of the child: 
Guardianship of McGarrity, 1 Cof. Pro. Dec. 200. 



112 Coffey's Probate Decisions, Vol. 3. 



Estate of JOHN SYLVESTER, Deceased. 

[No. 1,291; decided August 16, 1893.] 

Accounts of Executor — Delay in Rendering. — When an executor 
fails to render an account and delays closing the administration for 
a number of years, he cannot, when he at last files an account in 
obedience to a citation, urge that objections to the account come too 
late. 

Accounts of Executor — Delay in Contesting. — An heir or legatee 
who contests an executor's account when it comes up for settlement 
is not chargeable with laches in not having exercised his right to 
compel the executor to file his account sooner than he did. 

Accounts of Executor — Estoppel Against Executor. — Where an Ex- 
ecutor shortly after his appointment files an account wherein he 
charges himself with certain money and property received as executor, 
and ten years after, in obedience to a citation, files a second account 
not charging himself with such money and property, but claiming 
that they belonged to a partnership composed of himself and the 
testator, his claim comes too late. 

Executor — When Chargeable with Interest on Money Used as His 
Own. — Where an executor uses money of the estate as his own, he is 
chargeable with interest thereon; in this case, however, it appearing 
that the executor did not use the money with any intent to defraud 
the estate thereof, it is held that justice will be subserved by 
charging him with simple interest only. 

J. D. Sullivan, for the executor. 

Blake, Williams & Harrison, for the contestant. 

COFFEY, J. John Sylvester died November 13, 1881, in 
the city and county of San Francisco, of which he was a resi- 
'lent, and in which he left estate, disposed of by a will ad- 
mitted to probate December 12, 1881, upon a petition tiled 
by the executor named therein, his brother, Daniel Sylvester, 
to whom letters testamentary were issued the same day, and 
under which letters the said executor entered upon his trust 
and took possession of the property of the estate, and has ever 
since remained in possession as such executor. 



Estate of Sylvester. 113 

The propert}^ as described in the petition for probate, con- 
sisted of $8,259 on deposit in the Bank of California, out- 
standing debts amounting to about $2,000, three horses and 
two wagons and harness of the value of $500, and $32.82 on 
deposit in a savings bank; in all, about $10,791.82. 

The will gave all his property to his brother, Daniel Syl- 
vester, in trust to pay to testator's son, Louis, then a minor, 
$100; to testator's brothers, Balsar, Conrad, "William and 
Henry, one dollar each; after the payment of all testator's 
debts and bequests, the residue to be divided equally between 
his wife, Susannah Sylvester, and Maria Sylvester, the wife 
of his brother Daniel, the executor and trustee ; in ease of 
the death of his wife, the son, Louis, should succeed to her 
share; the executor to act without bonds. The witnesses to 
the will were J. D. Sullivan (subsequently, and since, and 
now the attorney for the executor), and W. F. Empey. Mr. 
Sullivan, as subscribing witness, testified upon the probate of 
the will; and upon the same occasion the executor named in 
the will, Daniel Sylvester, testified that the decedent testator 
left personal property valued at $11,275 within the jurisdic- 
tion of the court, and the order admitting the will to probate 
so found. 

On December 28, 1881, it was ordered that notice to the 
creditors of said decedent, "pursuant to section 1190 of the 
Code of Civil Procedure," be published once a week for ten 
weeks. This order was made, entered and filed on the day 
of its date. It does not appear from the record that any 
notice was ever published ; nor does it appear that any claims 
were ever presented to or allowed by the court, or that any 
order of the court was ever made for the payment of any i 
claims, debts or bequests. 

On May 29, 1882, there was filed a paper indorsed "Inven- 
tory," and signed "Daniel Sylvester, Administrator of the 
Estate of John Sylvester, Deceased," which, after the title 
of the court and the estate, was in the following words and 
figures : 

"Inventory of property belonging to the estate of said John 
Sylvester, deceased, which has come into the hands of the 
administrator: 

Prub. Dec, Vol. Ill 



114 Coffey's Probate Decisions, Vol. 3. 

"Cash on deposit in the Bank of California $11,521.75 

Three horses, value of two estimated at $150 each 300.00 

One of the value of 25.00 

Two wagons and harness for the same, valued at 

$100 100.00 

And one valued at 75.00 



$12,021.75" 

It does not appear that any appraisement was ever made 
as required by law : Code Civ. Proc, 1444 et seq. 

On June 12, 1882, a paper indorsed "Administrator's Ac- 
count ' ' was filed, and its contents were as follows : 

After the title of court and estate : 

"Daniel Sylvester, administrator of the estate of John 
Sylvester, deceased: 
"1881. To cash received as follows, to wit: 

Dr. 

December 1st. To cash in bank $11,245.00 

To cash collected since the above 

date 276.75 

To personal property on hand. . 500.00 



$12,021.75 
1881. By cash paid as follows, to wit: Cr. 

1. Paid to J. D. Sullivan, attorney $ 150.00 

2. Expenses of administration 25.00 

3. Cash paid to Geo. Metzger 1,100.00 

4. Cash paid J. Burns 6.50 

5. Cash to physician, Dr 200.00 

6. Cash to Norman Graves 12.50 

7. Funeral expenses, James McGinn .... 250.00 



$1,744.00 
8. Jas. Henderson 200.00 



(( 



$ 1,944.00 
"DANIEL SYLVESTER, 

Administrator of the Estate of John Sylvester, Deceased." 



Estate of Sylvester. 115 

On June 16, 1882, an order was made, entered and filed, 
appointing Friday, June 30, 1882, for the settlement of the 
account above transcribed. 

It does not appear that said account was settled on said 
day so appointed, but there is found among the papers a 
blank form, partly filled in, dated July 17, 1882, which re- 
cites that Daniel Sylvester, administrator, having on the 
thirtieth day of June, 1882, rendered for settlement his ac- 
count, and it coming up for settlement, it is ordered that the 
account be and is settled and allowed and approved. This 
form of order lacks the signature of the judge. The written 
part is in the same handwriting as the account, and was evi- 
dently prepared by the same person for the judge's signature. 

No further proceedings appear to have been had in said 
estate until the sixth day of April, 1892, when Susannah 
Sylvester, widow of the decedent testator, and one of the 
residuary legatees named in the will, and as such interested 
therein, prayed this court for a citation compelling said 
executor forthwith to file a full and final account of his admin- 
istration of said estate, whereupon the court ordered citation 
to issue, and the same did issue upon the same day. 

In apparent obedience to this citation, there was filed on 
April 18, 1892, a paper indorsed "Second Account of Execu- 
tor," which recited that "the whole estate which has come to 
hands of executor, to wit : 

"An interest in the partnership existing between the said 
deceased and the undersigned executor as per inventory this 
day filed herein. 

"1881. Cr. 

Dec. 15. By cash paid J. D. Sullivan $ 150.00 

Cash expenses of administration 25.00 

Nov. 15. To Odd Fellows' Cemetery Association 200.00 

Dec. 12. To Daily Report, advertising 10.00 

Nov. 21. To Dr. Scott, medical attendance.... 80.00 

Nov. 3. To Dr. Chismore, medical attendance. 130.00 

1882. 

June 12. To J. Henderson 12.50 

To Jas. McGinn, funeral 275.00 



116 Coffey's Probate Decisions, Vol. 3. 

To cash paid to Susannah Sylvester, 
the widow, and Louis Sylvester, the 
only son 3,000.00" 

On the same day, April 18, 1892, there was filed what pur- 
ported to be a "Keport of Administration by Executor," 
which recited that at the time of the death of said deceased, 
and for some time prior thereto, said deceased was engaged 
in the cattle butchering business in said city and county as a 
partner of this affiant ; that the only property left by said 
deceased consisted of an interest in said business; that the 
only property belonging to the said partnership is described 
in the inventory this day filed herein; that after the death 
of the said deceased the executor, as surviving partner, con- 
tinued for some time to conduct the said business, and, in 
conducting the same, paid a number of claims contracted by 
the said partnership before the death of said deceased, in- 
cluding the claim of James Duncan for the sum of $900. 
and the claim of George INIetzger for the sum of $1,100, and 
also other claims against the said partnership ; that the claims 
of the Odd Fellows' Association for the sum of $350, and the 
claim of G. V. Metzger for the sum of $1,100, have been 
presented to the executor and allowed by him, and filed 
herein on the twentieth day of July, 1882. 

It is not stated, and it does not appear, that the claims 
mentioned were ever presented to the court, and it is the fact 
that they were not approved by the court. 

On the same day, April 18, 1892, there was filed a paper 
entitled "Amended Inventory of Estate of said Deceased," 
which stated that "the whole of the estate of said deceased 
at the time of his death consisted of an interest as partner 
in a cattle butchering business conducted by said deceased and 
the executor as partners. The said John Sylvester invested 
in said business the sum of $1,100, and the executor the sum 
of $8,000. There was no time mentioned during which the 
said partnership should continue ; but the profits thereof were 
to be divided between the partners in proportion to the 
amount invested by each. At the time of the death of said 
deceased the said partnership was the owner of the following 
property; 



Estate of Sylvester. 117 

"Cash on deposit in the Bank of California $11,521.75 

Three horses; two horses; harness." 

This "Amended Inventory" was verified in usual form. 

On April 30, 1892, Susannah Sylvester, the widow, and 
one of the heirs at law and residuary legatees as aforesaid 
of deceased, filed a contest and exceptions to the account filed 
April 18, 1892, upon the following grounds : 

1. That the executor did not charge himself with the cash 
sum of $11,521.75, received by him, belonging to said estate, 
as shown by the inventory of said estate filed herein on the 
twenty-ninth day of May, 1882, or with any of the other prop- 
erty of the said estate mentioned in said inventory. 

2. That the executor did not in said account — "Second 
Account" — ^charge himself with the sum of $10,077.75, the 
balance of cash in his hands belonging to said estate on June 
12, 1882, as show^n by the account filed by him on that day. 

3. That the executor did not, in said "Second Account," 
charge himself with the proceeds of any settlement or liquida- 
tion of the partnership interest therein mentioned. 

4. That the executor did not, in said account, charge him- 
self with any interest upon any of the money received by 
him belonging to said estate, whereas all of such money so 
received by him, except such portion, if any, as may have been 
expended by him in the payment of proper charges against 
said estate, was, as believed and alleged, appropriated by him 
to his own use, and he is chargeable with interest thereon, at 
legal rate, compounded annually. 

5. That the executor, in said "Second Account," improp- 
erly claimed credit for disbursements for which he produced 
no voucher. 

6. The contestant further objected to the item of $3,000, 
for which credit is claimed in said account, as cash paid to 
contestants Susannah and Louis Sylvester, upon the ground 
that, so far as the same was made up of money paid to Louis, 
it was not a proper charge against the estate, and upon the 
further ground that no such sum of money, and no sum of 
money whatever in excess of the sum of $710, has ever been 
paid to said contestant. 

7. Contestant finally contested the item of the claim of 
the Odd Fellows' Association, $350, and G. V. Metzger for 



118 Coffey's Probate Decisions, Vol. 3. 

the sum of $1,100, as mentioned in the report accompanying 
said "Second Account," as not proper charges against the said 
estate. 

After many days of trial upon the said "Second Account" 
and the exceptions, the same were submitted for the court's 
judgment. 

Each of the respective counsel — Edward C. Harrison, Esq., 
for contestant, and Jeremiah D. Sullivan, Esq., for executor 
• — presented his view in writing of what he considered the re- 
sult of the evidence and proof. These views are widely vari- 
ant and impossible of reconcilement. The executor claims 
that the estate is in debt to him, and that he, a man of ac- 
knowledged integrity and standing in the community, is the 
victim of a good heart, of unbounded confidence in his own 
kindred, giving them money when they needed it, and now, 
that he has refused to pay any further, they have brought this 
proceeding. To "pay" implies obligation and indebtedness, 
and if the executor owed nothing to contestant he has used 
an inapt term. 

Executor's counsel asserts that "the staleness of this claim 
of contestant is an argument against it," and the counsel 
exclaims that "it is inconceivable how she should have allowed 
this matter to go for ten years without a settlement." This 
is a curious contention for so competent a counsel in this 
forum, and one who has been, from the inception of the admin- 
istration of this estate, continuously the attorney of record for 
the executor. The record discloses that, so far from culpa- 
bility attaching to contestant, the executor fell far short of 
his duty in not closing up the estate within a reasonable period 
and liquidating the affairs of the partnership alleged to have 
subsisted between him and the deceased. At any rate, stale- 
ness of claim of contestant is a novel plea in defense of a 
delinquent executor. 

It might be said, rather, that his allegation that the estate 
is partnership assets savors of staleness, coming ten years 
after his petition for probate, proof upon probate, first "In- 
ventory," and first account, in all of which the property is 
treated as the personal property and assets of the deceased, 
John Sylvester, and no suggestion of partnership interest is 
made. It is too late now, it seems to me, when his adminis- 



Estate of Sylvester. 119 

tration is challenged, and when he is by compulsory process 
brought into court, to set up a claim of partnership as to the 
assets returned in his first inventory and first account. I am 
convinced that he was correct when he made his first inventory 
and account, which, if it had received the approval of the 
judge, M^ould have concluded him at this time, and that his 
present plea is an afterthought designed to defeat contestant's 
claim. 

It was the duty of the executor to proceed promptly to 
administer the estate, and he has shown no valid legal excuse 
for his dilatoriness, nor can he escape censure for his own 
laches by accusing contestant of negligence in prosecuting 
her right to a settlement, for manifestly she must have relied 
upon him to discharge his duty according to law. But, never- 
theless, as there is so much that is obscure to the investigator 
in this class of cases, I am disposed to view as leniently as 
possible the conduct of the executor, and to give him the ben- 
efit of any and every doubt that may arise upon the evidence, 
as I do not wish to inflict a penalty, but to secure, if possible, 
what is justly due to the heirs and legatees. 

As a conclusion, from my examination, I find that the total 
amount of money received by the executor belonging to the 
estate was $12,021.75 ; that he should be allowed as paid out, 
according to the statement in contestant's statement of 
account, including payment to widow of $710, as proved, 
$3,692.50; that he should be allowed one-half judgment in 
Cockburn v. Sylvester (and of this, although I allow it, I 
have had very serious doubts, and still retain them, but con- 
clude in favor of the allowance), $1,956.15. 

As to interest upon the balance to be computed, I think, 
all things considered, justice would be served in this case by 
the allowance of simple interest, and the account when so 
stated may be settled. 



The Principal Case was Affirmed in 10.5 Cal. 189, 38 Pac. 648. 

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 col- 
lected it under a power of attorney for them: Estate of Edward 
Ford, 2 Cof. Pro. Dec. 342. 



120 Coffey's Pkobate Decisions, Vol. 3. 



Estate of WILLIAM RENTON, Deceased. 

[No. 11,203; decided September 4, 1893.] 

Probate of Will — When Becomes Final. — No probate of a will is 
final until the year has expired which is prescribed by statute within 
which a contest may be had. 

Foreign Will — Whether Sub.iect to Contest in this State. — A will 
which has been proved in another state where the probate has not 
yet become final is subject to contest when offered for probate in 
this state as a domestic will. 

Wills — Interpretation — Conflict of Law. — The validity and inter- 
pretation of wills, wherever made, are governed by the laws of this 
state so far as they affect property here situated. 

On June 1, 1892, a demurrer to the opposition to the pro- 
bate of the will of the above-namfed decedent, dated Decem- 
ber 12, 1876, was sustained, with leave to amend, and on 
July 7, 1892, an amended opposition was filed by the con- 
testants. Thereafter the executor filed a demurrer to the 
amended opposition. It was alleged in the amended opposi- 
tion that the order admitting the will to probate in the state 
of Washington was not final, and that under the laws of that 
state the will might be contested at any time within one year 
after its admission to probate. 

Blake, Williams & Harrison, for the executors. 

Crittenden, Foote & Van Wyck, for the contestants. 

COFFEY, J. The proponent executor, after formally pro- 
bating in the state of Washington the instrument in contest, 
and before the order admitting said instrument there was 
final, presented said instrument to this court and in this juris- 
diction for probate. The contest of said instrument is now 
pending in both jurisdictions. 

The proponent, having elected as actor to proceed with the 
probate of said instrument in this jurisdiction before any final 
order, judgment or decree admitting said instrument to pro- 
bate in Washington was secured, cannot now object to a con- 
test proceeding here. 



Estate of Renton. 121 

Formal admission to probate in Washin^on, a contest hav- 
ing been filed, is not in any sense a final order, judgment or 
decree. It has been held by this very court in several cases 
that the order, judgment and decree admitting a will to pro- 
bate was not final in any sense, and was not admissible even 
as evidence on the trial of a contest of such instrument : Es- 
tate of McGinn, post, p. 127; Clements v. McGinn (Cal.), 33 
Pac. 920. 

The counsel for the proponent is mistaken in his premises 
in assuming that there has been any probate in the state of 
Washington, for the very instrument has not yet finally been 
admitted to probate and the contest is now pending in the 
state of Washington. 

The authorities cited by counsel for the proponent relate 
to a final judgment, order or decree admitting the instrument 
to probate, not to an order, judgment or decree that is not 
final. 

The statutes of this state and the state of Washington not 
only authorize a contest of the instrument itself, but the very 
order, judgment or decree formally admitting to probate. If 
the very order, judgment or decree can be assailed and evi- 
dence ofi:ered and it can be set aside, it certainly is not in any 
sense a final order, judgment or decree ; and if the very in- 
strument itself can be assailed on any and every ground and 
can be held to be invalid, it is certainly not finally admitted 
to be or established to be a will. 

Again, in this state this instrument would dispose of real 
estate, and is open to attack under the provisions of the code : 
Civ. Code, see. 1376. 

The proponent, having elected to come into this jurisdiction 
and initiate a contest here, when he knew that the instrument 
would be contested in Washington, and when he knew that 
the instrument was not finally established as a will, and the 
order admitting it was not final, cannot say to the contestants, 
"You must remain silent; you cannot object; you must al- 
low this instrument to be admitted here although 3^ou are con- 
testing it or intend to contest it in the state of Washington, 
and although you are not finally bound in the state of Wash- 
ington, and although the order admitting said instrument in 
the state of Washington is merely in. the nature of an inter- 



122 Coffey's Probate Decisions, Vol. 3. 

locutory order. ' ' The proposition substantially contended for 
here by proponent is that parties can avail themselves of an 
interlocutory order in another state as a means of preventing 
any defense to the same action or proceeding in this state, al- 
though the interlocutory order is being assailed and may be 
set aside, and although the right to said interlocutory order 
in said foreign jurisdiction is not yet determined. 

The law is well settled that only a real, true and final order, 
judgment or decree can be used in any other jurisdiction or 
for any purpose. Surely the proponent could not sue on a 
judgment rendered in another state, though that judgment 
was final in the nisi prius court after an appeal had been 
taken, and while the action was pending on appeal. Here in 
the present case the order, judgment or decree is not final 
even in the nisi prius court, and is pending and has not even 
reached an issue for trial : Estate of Blythe, 99 Cal. 472, 34 
Pac. 108. 

"There can be but one final judgment in an action, and 
that is one which in effect ends the suit in the court in which 
it is entered and finally determines the rights of the parties 
in relation to the matter in controversy": Elliott's Appellate 
Procedure, sees. 90, 91 ; Western Union Tel. Co. v. Locke, 107 
Ind. 9, 7 N. E. 579; Stockton Combined Harvester & Agricul- 
tural Works V. Glen's Falls Ins. Co., 98 Cal. 557, 33 Pac. 633. 

There are several decisions in My rick's Reports which seem 
to take this view of the matter — that is, that no probate of a 
will is final until the year has expired which is prescribed by 
the statute within which a contest may be had : Estate of Ad- 
sit, Myr. Rep. 268; Estate of Cunningham, Myr. Rep. 214, 
To the same effect is the decision in Martin v. Perkins, 56 
Miss. 204. 

The contest here is a direct proceeding to test the validity 
of the will offered for probate here. 

While the probate of a will does establish in rem a status, 
yet that status is subject to be avoided by a direct proceed- 
ing provided by the affirmative law of this state: Kearney v. 
Kearney, 72 Cal. 594, 15 Pac. 769 ; Code Civ. Proc, sec. 1327. 

In this connection it will be seen from the language of sec- 
tions 1323 and 1324, Code of Civil Procedure, that upon the 
probate of a foreign will by the production of a copy thereof 



Estate of Renton. 123 

and a probate thereof, the proceeding is placed upon the same 
basis "as a will first admitted to probate in this State" — that 
is, that it can be contested in the same way, and is no more 
conclusive than a domestic will. But in any event, even if 
there were here a probate such as is claimed, it could only 
affect at the most the distribution of personal property in this 
jurisdiction according to the law of the place where the testa- 
tor was domiciled, and this would only come up upon an 
application for distribution. 

Our Civil Code expressly reserves to the courts of this state 
the right to determine the validity and interpretation of wills, 
wherever made, when relating to property within this state, 
by the law of this state : Civ. Code, sec. 1376. 

The conclusion, therefore, is that there has been no conclu- 
sive probate at all, even in Washington, of this will; and, if 
there had been a probate of such will, it cannot affect the 
right of the probate court here, as respects property in this 
state, to determine the "validity" of the will according to the 
law of this state, leaving the question of distribution to be 
determined as to personalty by the law of the domicile of the 
testator, and of the realty by the law of this state. 

The contention of the proponent would be to place the pro- 
bate of a will in another state upon a higher plane than a 
domestic will. When we come to consider that this request 
for foreign probates is founded on the principle of comity 
only, and when we read our statutes, it is plain that the con- 
tention made is entirely unfounded. In this connection it is 
instructive to read the following extracts from a decision of 
the supreme court of Rhode Island : 

"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 

"The legislation of nearly all the states, and certainly of 
our own, proceeds upon the supposition that such is the lim- 
ited operation of the probate of a will had in a foreign coun- 
try or in another state, and provides some mode in general 
analogous to that pursued in England with regard to a will 
which has received a Scotch probate, by which conclusive 
operation may be given to such a will within the state, full 



124 Coffey's Probate Decisions, Vol. 3. 

notice being given to all persons interested in order that they 
may appear and contest the same": Olney v. Angell, 5 R. I. 
203, 204, 73 Am. Dec. 62, and cases cited. 

Our statutes proceed upon this theory, and, even if a will 
has been probated in another state, it is just as subject to a 
contest here when offered for probate as a domestic will. 
There is no reason whatever why our statutes should be 
twisted so as to announce a different rule from that which is 
prevalent in England as regards a Scottish probate in view 
of the plain provisions of section 1376, Civil Code. 

Wliat the rule of distribution may be is one thing; the de- 
termination of the "validity" and "interpretation" of a will 
affecting property in this state is another and a different 
thing. 

Sections 872, 873 and 874 of Hill's Statutes, second volume, 
of the state of "Washington, read: 

"872. If any person interested in any will shall appear 
within one year after the probate or rejection thereof, and, 
by petition to the Superior Court having jurisdiction, contest 
the validity of said will, or pray to have the will proven which 
has been rejected, he shall file a petition containing his ob- 
jections and exceptions to said will, or to the rejection thereof. 
Issues shall be made up, tried and determined in said Court 
respecting the competency of the deceased to make a last will 
and testament, or respecting the execution by the deceased of 
such last will and testament under restraint or undue influ- 
ence or fraudulent representations, or for any other cause 
affecting the validity of such will. 

"873. Upon the filing of the petition referred to in the 
next preceding section, a citation shall be issued to the execu- 
tors who have taken upon them the execution of the will, or 
to the administrators with the will annexed, and to all legatees 
named in the will residing in the State, or to their guard- 
ians if any of them are minors, or their personal representa- 
tives if any of them are dead, requiring them to appear before 
the Court on a day therein specified, to show cause why the 
petition should not be granted. 

"874. If no person shall appear within the time afore- 
said, the probate or rejection of such will shall be binding, 
saving to infants, married women, persons absent from the 



Estate of Mallon". 125 

United States, or of unsound mind, a period of one year after 
their respective disabilities are removed." 

The laws of this state furnish the rule in regard to in- 
heritance and distribution, and the laws of foreign countries 
will be disregarded, unless part of a contract: Civ. Code, sec. 
1376; Estate of Baubichon, 49 Cal. 18; Estate of Baubichon, 
Myr. Rep. 55. 

For the reasons above set forth the demurrer interposed by 
proponent executor to the contest herein filed is overruled, 
with leave to plead thereto within ten days. 



On the Contest of Foreign Wills, see Estate of Kershow, 2 Cof. 
Pro. Dec. 213, and note. 



Estate of PATRICK MALLON, Deceased. 

[No. 9,378; decided June 2, 1893.] 

Claims Against Estate— Whether Draw Interest.— All interest- 
bearing obligations continue to bear interest after the obligor's death; 
even those that were not" originally interest bearing become so after 
presentation and allowance. 

Claims Against Estate^ — Computation of Interest. — To ascertain the 
amount of a claim against a decedent's estate at any particular time, 
there should be added to its face the accrued interest to that date, 
limiting the rate to seven per cent when the estate is insolvent. 

Claims Against Estate. — The Preference Given to Judgments ren- 
dered against a decedent in his lifetime includes the interest due 
thereon at the time of payment. 

On January 11, 1890, Mathew McGowan and Thomas But- 
ler, partners under the firm name of McGowan & Butler, ob- 
tained judgment in the superior court against Patrick Mallon 
for $760.56 principal, $30.50 costs, and interest. The judg- 
ment debtor died on January 26, 1890, leaving a will, and on 
February 26, 1890, letters testamentary were issued to Ellen 
Mallon, his widow. 

On November 11, 1890, the judgment creditors filed their 
claim on the judgment, which claim had theretofore been duly 
presented, allowed and approved. 



126 Coffey's Probate Decisions, Vol. 3. 

On ]\ray 29, 1893, the judgment creditors filed a petition for 
an order requiring the executrix to pay their claim with in- 
terest, alleging that the claim was unpaid, and that she had 
sufficient money of the estate in her hands to pay the same, 
and that it is a preferred claim. After a hearing the claim 
was established as a preferred claim, and the executrix was 
ordered to pay the same, with interest from January 11, 1890. 

Roger Johnson, for the petitioners. 

]\I. C. Hassett, for the executrix. 

COFFEY, J. When judgment is given against defendant 
in his lifetime, and after his death is duly presented, allowed 
and approved as a claim against his estate, and said estate 
appears to be insolvent, does the preference given by Code of 
Civil Procedure, section 1643, extend to the interest on said 
judgment at time of payment? 

The question of preference among claims only becomes mate- 
rial when the estate is insolvent, and section 1643, Code of 
Civil Procedure, places in the fourth class "judgments ren- 
dered against decedent in his life, and mortgages, in the order 
of their date." The executrix has already paid a mortgage 
with interest, which is in the same class with this judgment, 
and we think no one could distinguish between an obligation 
to pay interest, arising from the contract of parties, as in 
ease of a mortgage, and an obligation to pay it arising by 
operation of law, as in case of a judgment. 

The correct view seems to be that while all interest-bearing 
obligations continue to bear interest after the obligor's death, 
even those that were not originally interest bearing become so 
after presentation and allowance : Estate of Olvera, 70 Cal. 
184, 11 Pac. 624; Quivey v. Hall, 19 Cal. 98; Estate of Glenn, 
74 Cal. 567, 16 Pac. 396. 

So that, in order to ascertain the amount of a claim at any 
particular date, we add to its face the accrued interest to the 
desired date, limiting that interest to seven per cent when the 
estate is insolvent: Code Civ. Proc, sec. 1494. 

In consequence of this the "debt" which is preferred by 
section 1643 is the judgment or mortgage plus interest to the 



Estate of McGinn. 127 

date of payment. And this "debt" must be paid in full, if 
it is preferred, before any ''debt" of a lower class is paid 
either partially or at all : Code Civ. Proc., sec. 1645. 

The word "debt" used in those two sections has a settled 
meaning, and always includes interest on interest-bearing ob- 
ligations: Brown v. Lamb, 6 Met. 203; Gray v. Bennett, 3 
Met. 522, 526. 

In Quivey v. Hall, 19 Cal. 98, it was held, where a judg- 
ment rendered against decedent in his lifetime was presented 
as a claim against his estate and rejected and suit brought on 
it, the judgment against the administrator was properly given 
for the amount of the judgment and interest to date of rendi- 
tion of judgment as administrator. 

So that if this claim had been rejected, and claimant had 
sued the executrix, he would have recovered what he claims 
now, with the right to priority over the general debts of the 
estate. 

It will be conceded that claimant would be entitled to this 
accrued interest if the estate was solvent, and it seems that 
the burden devolves on the executrix to show a different rule, 
if there be one, regarding an alleged insolvent estate — the 
only distinction appearing from the statute to be that debts 
of all classes shall bear but seven per cent interest if the 
estate is insolvent: Code Civ. Proc, sec. 1494. 



Estate of JAMES McGINN, Deceased. 

[No. 7,054; decided December 1, 1893.] 

Revocation of Probate — Appeal and Undertaking Thereon. — A de- 
cree revoking the probate of a will and awarding costs to the con- 
testants is not "a judgment or order directing the payment of 
money," and on appeal therefrom no undertaking in double the 
amount of the costs is required to stay execution of the judgment. 

Undertaking on Appeal. — An Undertaking in Double the Amount 
of Costs, taxed in a case where no undertaking is required to stay 
execution, is without validity either as a statutory or common-law 
bond, and cannot be enforced against the sureties. 



128 Coffey's Probate Decisions, Vol. 3. 

James L. Crittenden, for the motion, on behalf of the 
successful contestants. 

Reddy, Campbell & Metson, opposed. 

COFFEY, J. The appeal was from the judgment and 
decree revoking probate of will and from an order denying 
defendant's motion for a new trial. 

An undertaking on appeal in the sum of $300 was given 
in this case. An additional undertaking was also given in 
double the amount of the costs taxed in the case. 

The appeal is not from a judgment or order directing the 
payment of money. The character of the appeal is already 
given. The fact that costs were allowed does not characterize 
the judgment. The court might have, in the same judgment, 
ordered costs to be paid out of the estate. Costs are an in- 
cident to nearly every judgment ; but the fact that costs are 
allowed does not bring the appeal within section 942 of the 
Code of Civil Procedure. 

The appeal is not a case provided for in sections 942, 943, 
944 or 945. 

"In cases not provided for in sections 942, 943, 944 and 
945, the perfecting of an appeal by giving the undertaking 
mentioned in section 941 stays proceedings in the court below 
upon the judgment or order appealed from": In re Schedel, 
69 Cal. 242, 243, 10 Pac. 334. 

" 'Sections 942 to 945, inclusive, apply to appellants who 
are required to perform the directions of the judgment or 
order appealed from. This is manifest from their language. 
But the appellant in the present case is not required to do 
anything. It feels aggrieved by the decree, however, and has 
the right to appeal. The case is one not provided for in 
sections 942, 943, 944 and 945, and, consequently, by the 
terms of section 949, the perfecting of the appeal, by giving 
the undertaking mentioned in section 941, stays proceedings 
in the court below upon the judgment appealed from.' .... 
The general rule, as declared in section 949, is that the $300 
undertaking mentioned in section 941 'stays proceedings in 
the court below upon the judgment or order appealed from,' 
The exceptions are contained in sections 942-945, inclusive; 



Estate of McGinn. 129 

and those sections apply to cases where the appellant has 
money or other property in his possession which has been 
adjudged by the lower court to belong to the respondent, or 
where the appellant has been directed to do some act for the 
benefit of respondent, and where it would be unjus't to allow 
the appellant to retain the possession of the property, and 
perhaps dissipate it or put it out of his power to perform 
the act required, without securing respondent by a bond": 
Pennie v. Superior Court, 89 Cal. 33, 34, 26 Pac. 617; Ex 
parte Clancy, 90 Cal. 553, 27 Pac. 411. 

"Upon an appeal from an order appointing an adminis- 
trator, an undertaking on appeal in the sum of $300, as pro- 
vided for in section 941 of the Code of Civil Procedure, stays 
all proceedings upon the order appealed from, and prevents 
the doing of any act by the appointee as administrator of the 
estate during the pendency of the appeal": In re Woods, 94 
Cal. 566, 29 Pac. 1108. 

"The statutory undertaking of $300 given on an appeal 
from a judgment for the foreclosure of a chattel mortgage 
operates as a stay of execution, and, if a further undertaking 
be given to stay execution, it cannot be enforced against the 
sureties therein for want of consideration": Powders v. Crane, 
67 Cal. 65, 7 Pac. 135. 

"It is settled that a statutory undertaking beyond what is 
required by the statute is to that extent without consideration 
and inoperative": Lambert v. Haskell, 80 Cal. 620, 22 Pac. 
327, citing Powers v. Crane, supra. 

"No bond being required to stay execution in addition to 
the usual bond for costs on appeal from a judgment fore- 
closing a chattel mortgage, a bond given upon such appeal, 
to secure a judgment for deficiency, is not a statutory bond, 
and is without consideration and void": Powers v. Chabot, 
93 Cal. 266, 28 Pac. 1070. 

"A motion for a judgment against the sureties on a bond 
given to stay execution pending an appeal is authorized only 
on statutory undertakings, and when the bond has no validity 
as a statutory bond the motion should be denied, even if the 
bond could be shown to be supported b}^ a consideration, and 
to be good as a common-law bond": Id. 

Prob. Dec, Vol. Ill — 9 



130 Coffey's Probate Decisions, Vol. 3. 

"The fact that the respondent was induced to forbear hav- 
ing a sale of the mortgaged property as perishable, by reason 
of a stay bond for deficiency given upon appeal from a 
judgment foreclosing a chattel mortgage, does not constitute 
any consideration for the bond. The bond, not having been 
given in pursuance of any agreement between the parties, but 
simply to secure a statutory privilege which Avas not gained 
by it, was wholly without consideration, and could not be 
valid as a common-law undertaking": Id. 

Motion denied. 



The Principal Case was Afiarmed in Clements v. McGinn (Cal.), 33 
Pac. 920. 



Estate of CHARLES A. JAIMES, Deceased. 

[No. 151,588; decided June 12, 1897.] 

Evidence — ^Weight and Credibility. — The court is not bound to de- 
cide in conformity with the declarations of any number of witnesses 
against a less number or a presumption of other evidence satisfying 
the judicial mind. 

Marriage— Sufficient Marriage Contract. — The following contract 
signed by the parties, but not witnessed, is not legal in form: "San 
Francisco, Cal., January 6th, 1895. We, the undersigned, Charles A. 
James, aged 60, and Laura Milen, aged 19, do hereby mutually bind 
ourselves unto each other as husband and wife. This agreement or 
contract to be authority for same before God and man." 

Marriage — Assumption of Marital Rights and Duties. — In this case 
where a woman claimed to be the widow of the decedent by virtue 
of a contract entered into with him followed by an assumption of the 
marriage relation, the court holds, after an extended review of the 
evidence, that there was no mutual assumption of rights, duties or obli- 
gations marital, and that they never lived together as husband and 
wife. 

Parent and Child — Evidence of Paternity. — In this case, where it 
is contended that a woman is the widow of the decedent by virtue of 
a contract marriage followed by an assumption of conjugal relations, 
and that a child was born of the union, the court holds that there was 
not an assumption of the relation of husband and wife, and that the 
child is not the offspring of the decedent. 

Forged Marriage Contract — Expert and Other Evidence. — An al- 
leged contract of marriage produced in this case is, in the light of 
expert and other evidence, held a forgery. 



Estate op James. 131 

George D. Shadburne, for the absent heirs. 

W. H. H. Hart, George W. Fox and Aylett R. Cotton, for 
Laura Milen James and Theodore Milen James. 

COFFEY, J. On the 29th of January, 1895, there was 
filed in this court by A, C. Freese, public administrator, a 
petition alleging that one Charles A. James died in this city 
and county on the twenty-eighth day of January, 1895, being 
a resident herein and hereof, and leaving estate consisting of 
real and personal property of value unknown to the petitioner ; 
that said James died intestate and left, so far as known to 
petitioner, as heir at law a nonresident niece ; and that to 
collect and preserve the estate a special administrator was 
needed. 

Upon the petition thus presented the special letters were 
granted and issued to the public administrator, and he there- 
upon immediately entered upon the premises and took pos- 
session of the property, real and personal, no one appearing 
to oppose or obstruct him in the exercise of the duties of his 
office or claiming paramount right or authority by virtue of 
relation to decedent or in any other manner. 

Thereafter, and on the 31st of January, 1895, the said pub- 
lic administrator filed a petition for letters of administration, 
reciting the day and date of death of the said decedent, the 
place of death and of residence, as stated in the petition for 
letters of special administration; and that the said decedent 
left real and personal estate exceeding $10,000 in value, not 
exactly how much in excess was known to petitioner. 

Thereafter, and on the 8th of February, 1895, a petition 
was filed in this court signed "Mattie E. James by M. C. 
Hassett and George Hudson, attorneys for petitioner," recit- 
ing the facts of death and residence as in the preceding peti- 
tions and laying the value of the estate at about forty-five 
thousand dollars, and alleging that the next of kin and heir 
at law of the decedent "is Mattie E. James, of legal age, resid- 
ing in said city and county, a niece of said" decedent; that 
diligent search and inquiry for a will developed no such docu- 
ment; that deceased died intestate; and that as niece, next 
of kin, and heir at law said Mattie E. James was entitled to 



132 Coffey's Probate Decisions, Vol. 3. 

letters of administration. On February 21, 1895, this petition 
was withdrawn and letters issued to the public administrator. 

On January 29, 1895, as appears by the record, when the 
special letters were granted to the public administrator there 
was present in court and sworn and examined but one witness, 
Mr. R. F. IMogan, who also acted as attorney on that occasion 
for the applicant. 

On February 21, 1895, as appears by the same record, 
when the petition of Mattie E. James was withdrawn in open 
court and the petition of the public administrator for general 
letters was granted, there were present and sworn and exam- 
ined as witnesses upon the hearing the said Mr. R. F. Mogan, 
Mrs. Laura Milen James, and Mr. George D. Shadburne. Mr. 
Shadburne had been appointed attorney to represent absent 
heirs, minors, and others generally under the statute in such 
case made and provided, by an order of the court dated Janu- 
ary 31, 1895 ; the heirs or pereons for whom he was to appear 
were in that order described as "at present unknown"; he 
served his notice of appearance the same day. On February 
26, 1895, one Annie B. Moss, formerly Annie B. James, a 
widow, entered an appearance by Isaac Joseph, attorney, of 
Sacramento, California. 

On April 15, 1895, the official appraisement of the property 
was filed, by and from which it appeared that the total value 
of the property was $46,617.86. 

The real property, 925 Howard street, valued at $15,000.00 

Cash on term deposit in savings union 28,750.88 

Other cash, in hands of administrator 2,128.18 

Furniture and other mixed personal property. . 738.80 



$46,617.86 



On April 22, 1896, a petition for distribution was filed by 
George D. Shadburne, as attorney for P. M. James, Charles T. 
James, Nathan W. James, Francis T. Broughton, Lucy A. 
Nichols, William J. Clark, Lydia E. Hoxie, George W. Clark, 
Hannah A. Wadsworth, Amy A. Reisch, "William Henry Bar- 
ber, Mattie E. James, Daniel M. James, Elizabeth E. Barber, 
Lj'dia L. Hopkins and Willard B. James, claiming to be next 
of kin and heirs collateral of the deceased Charles A. James, 



Estate of James. 133 

who died intestate, and as such heirs entitled to the whole of 
said estate in the proportions set forth in the said petition, 
being brothers and sisters and nephews and nieces. 

On May 5, 1896, a petition signed "Laura Milen James, 
petitioner, W. H. H. Hart, George W. Fox, attorneys for 
petitioner, Aylett R. Cotton, of counsel for petitioner," was 
filed, in which petition, after the necessary formal allegations 
in reference to the condition of the estate and its readiness 
for settlement and distribution, petitioner averred that she 
was the wife of the decedent intestate at and before the time 
of his death, and thereafter and thereby became his widow; 
that she was over the age of eighteen years ; that Milen James, 
an infant under the age of one year, is the only child of 
deceased, and that she and the said Milen James are the only 
heirs at law of said decedent, and that they are entitled to 
distribution in equal shares. To each of these petitioners* 
claims, answers and denials were presented in due season and 
proper form by the respective parties and issue was joined. 

The petitioner Laura claims that she intermarried with the 
decedent, Charles A. James, on the sixth day of January, 
1895, by a contract in writing signed by both parties ; the body 
of it is written by her at his dictation, and the whole of it 
being in words and figures as follows: 

"San Francisco, Cal., January 6th, 1895. 
"We the undersigned, Charles A. James aged 60 
and Laura Milen aged 19 do hereby mutually bind 
ourselves unto each other as husband and wife. This 
agreement or contract to be authority for same before 
God and man. 

"CHAS. A. JAMES. 
*'LAUEA MILEN." 

According to the testimony of the petitioner this contract 
was consummated on the evening of the day of its date and 
the conjugal relations were continued and repeated every 
night until the decedent expired on the 28th of January, 
1895. 

Assuming for the nonce the formal and verbal efficiency of 
this exhibit, such a document was at that time valid under the 
statutes of this state, but happily for the concord of the com- 
munity, the sanctity of the domestic relation, and the security; 



134 Coffey's Probate Decisions, Vol, 3. 

of the right of property from covert assault, the statute was 
modified by abolishing this mischievous clause of the code in 
the session of the legislature embracing the inception of this 
alleged agreement : Stats. 1895, p. 121, act approved March 26, 
1895. 

The document in dispute, however, is not within the pur- 
view of this amendment, having antedated the approval of the 
amendatory act: Civ. Code, sees. 55, 57, 68. 

If the allegations of the petitioner Laura be established as 
facts, and if the contentions of her counsel be correct as law, 
she is entitled to one-half of this estate and the minor is 
entitled to the remainder. 

It is contended b.y counsel for claimant Laura that as no 
particular form is prescribed by section 55 of the Civil Code, 
and as no written form is necessary when the intent of the 
parties to become husband and wife is apparent from their 
subsequent acts, therefore the language of the alleged contract 
should be construed in the light of the evidence produced on 
the trial in this case. 

Accepting this contention as the true theory, what is the 
evidence to support the allegations and claim of petitioner 
Laura? 

It is argued by counsel for her that the consent to marriage 
and the fact of marriage are proved by the testimony of 
Laura, who had actual knowledge thereof, by Dr. Milen and 
by Mrs. Milen, who saw the written consent and heard the 
admission of Dr. James, also by Dr. Terry and son, to whom 
Dr. James admitted the marriage, and by George Williams 
and John Bigley and by Mrs. Lulu Dickman, sister of claim- 
ant. 

The petitioner Laura at the time of the taking of her testi- 
mony upon the hearing of this application, December 10, 1896, 
testified that she was twenty years of age, having been born 
on the 2d of April, 1876, in Cleveland, Ohio ; her father was 
Theodore Milen, her mother died about 1890; the present 
Mrs. Milen was her stepmother; about six years ago the 
family, consisting of her father, her stepmother, her sister and 
herself came to California and went to. reside at 321 Ellis 
street; Laura went to school at Blake's Seminary in Oakland; 
she has been a little deaf in her left ear since infancy; she 



Estate of James. 135 

went for a short space to a convent in this city near to her 
home on Ellis street ; she first met the deceased, Dr. Charles 
A. James, on December 13, 1894; the meeting took place at 
925 Howard street; her stepmother and herself had taken 
rooms there on the day preceding ; met Dr. James in the hall, 
Mrs. Milen being present; the latter said to Dr. James: "Doc- 
tor, this is Miss IMilen"; she had catarrh and took treatment 
therefor from the doctor every day from the 14th until the 
close of December, 1894 ; the doctor knew of her deafness and 
said it was caused from the catarrh ; Dr. James had no regular 
office hours ; she practiced on the pianoforte on an average 
about three or four hours a day, and when she was playing 
Dr. James would come into the front parlor, which they had 
the privilege of using on account of the smallness of their 
own apartment ; the first time he came into the parlor while 
she was playing he complimented her on her execution, saying 
that she played beautifully, and engaged in conversation with 
her, inquiring how long she had been in California and 
making other inquiries evincing interest in her personal his- 
tory; the front and rear parlors were divided by folding 
doors; the rear room was used by Dr. James as an office — 
the doors intervening were sliding with ground glass upper 
panels; back of the rear parlor was a chamber separated by 
siolid frame doors; she took her treatment for catarrh in the 
rear parlor ; it was always the same treatment — spray ; on 
the 14th of December, 1894, in the evening, a lunch was pro- 
vided for the ladies by the doctor, consisting of cream cheese, 
crackers, pickles and sour wine ; they sat together until quite 
late in that room ; he had a fire there and he often came in 
and said, "You have no fire in your room, come into my 
office"; she and the deceased had conversations in his office 
and in the front parlor between the 14th and Christmas, 1894, 
every day ; he even went into her room ; he said to her in exact 
phrase, "You are a fine pianist"; he preferred to hear selec- 
tions from Faust ; he said that was the sweetest he ever heard ; 
other pieces were played ; "Longing" was one — quite a dreamy 
piece, soft and sweet in the major key ; he did not like classical 
music; Faust was his favorite; one piece, "Love's Sorrow," 
was his especial favorite; it comprised about four pages of 
music, two verses, sad and sweet ; she sang it three or four 



136 Coffey's Probate Decisions, Vol. 3. 

times, a very sweet little song — he liked it so much ; they were 
alone, she and Dr. James; he said that she sang that beauti- 
fully and he picked up the music and kissed it ; on December 
24, 1894, she went into his back parlor at about half-past 
9 o'clock in the evening; he had a fire, she sat beside it; he 
said, "Little one, I did not think I was capable of loving as I 
love you; will you marry me?" "I said that I had never 
thought of marriage; he kissed me." She said she had never 
thought of marriage ; he had kissed her on the forehead and 
he said when she gave this evasive response to his proposal 
that "if his devotion — if his life's devotion would make her 
happy he would do so"; he knew that he was an old man 
but he had a young heart; she made no reply to this except 
that she would consider it and talk with Mrs. ]\Iilen ; she saw 
him again the next day, Christmas, at about 10 o'clock in his 
office, where she went to take treatment, but she did not take 
treatment; he took out of a drawer a beautiful gauze fan 
and said, "There's your Christmas present" ; she said, "Thank 
you, Doctor"; some one then came in and she left the room; 
at about half past 12 o'clock on the same day, at about the 
hour of noon, Dr. James came into the room of the Milens 
and asked if they had any engagement for dinner; they said 
that they had not, whereupon he invited them to join him, 
and Mrs. Milen responded, "Certainly, with pleasure"; the 
three — the two ladies and the doctor — dined in his room at 3 
o'clock; afterward she played and sang in the parlor; they 
sometimes went to the theater escorted by him ; he asked her 
continually to answer his question about marriage; she said 
that she would write to papa — Dr. Milen — about it ; her father 
was then in the mountains; finally Laura answered her per- 
sistent wooer on Sunday, January 6, 1895, in his office in the 
afternoon, about 2 o'clock; she was at the piano and he opened 
the folding parlor doors and asked her to come into the office 
as he wished to speak to her, and she went in; he asked her 
if now that they — she and Mrs. Milen — had heard from papa 
if she would not answer his question; she said that having 
thought of it she would marry him. Dr. James then said to 
her, "Will you marry me at once?" and she asked him how 
that could be; he said, "By contract"; she inquired of him 
as to the nature of a contract marriage, and he explained that 



Estate op James. 137 

it was according to law, it was the legal way, and he was 
opposed to ministers as they were all frauds and he did not 
wish to be married by one of them ; he said that the contract 
was legal in this state of California, and she asked him how 
it was done, and he said by writing some words and signing 
the names to it and the contract bound the two together; she 
said to him, ''Well, if you say so I will"; then he said, 
"Well, we will write it at once, and I want you to write it"; 
she asked him, "Why?" and he answered, "Because I want 
it in your handwriting so I can carry it myself"; she went 
over to the desk then and sat down and he produced the pen 
and paper and ink; he dipped the pen in the ink himself and 
he handed it to her and she wrote at his dictation the mem- 
orable memorandum of matrimony; at the time of testifying 
she could not remember what he said ; she testified on Decem- 
ber 10, 1896, but she wrote the contract on January 6, 1895 ; 
he signed his name and she signed her name; he had the 
paper in his desk ; when the writing was completed and signed, 
he said that she was now his wife; he then took the paper 
and tore it off the tablet and put it in his pocket and said 
that he was going to carry that next to his heart; he placed 
it in his pocket on the left-hand side ; she did not know whether 
it was in his vest or coat pocket, but thought it must have 
been in his vest pocket ; when he proposed to her he drew 
her to his lap and kissed her ; she weighed then one hundred 
and ten pounds — he was taller and heavier; at that time her 
stepmother, Mrs. Milen, was at the matinee ; after the proposal 
they went to dinner; Dr. James and she went to dinner at 
the Creamerie on Market street, opposite Grant avenue ; they 
returned in about an hour; Mrs. Milen came in about one 
hour afterward and the three had a conversation in his back 
parlor between 6 and 7 o 'clock ; this was after the acceptance 
of the proposal ; she told the doctor that she had informed 
Mrs. Milen of the fact that they were married by contract 
and her stepmother expressed herself satisfied if she was ; 
afterward on that night, at about 10 o'clock, she retired first 
to the chamber in the rear of the back parlor and went to bed ; 
into the same came the doctor and slept with her that night, 
January 6, 1895, and every night until that preceding the 
day of his death; on the morning of that day, January 28, 



138 Coffey's Probate Decisions, Vol. 3. 

1895, at about 4 o'clock she was awakened by him; he com- 
plained of a pain in the shoulder ; he said he had a like attack 
a year previous and he did not think this one serious; he 
took some of his own medicine and would not let her go for 
a physician ; she arose and heated some water in a teakettle 
at the fire in the grate in the back parlor and got some hot 
cloths; on the evening of that day she and Mrs. Milen went 
to dinner at the Creamerie at about half -past 8 o'clock and 
returned in about an hour, or at half -past 9 o'clock; before 
they went out she asked him if they should bring him any- 
thing and he said, "No," that he could not eat; when they 
returned she asked him how he felt and he replied that he 
felt much better; she asked him if he wanted anything to eat 
and he said "No"; he died at about 11 o'clock that evening 
while sitting in his chair in the back parlor; he just gave a 
gasp and died; could not find a doctor; a doctor came in 
afterward and the undertaker was sent for; she did not 
embrace the dead body; the body was laid out in the front 
parlor after embalmment ; he was buried about the third day 
after death, "Wednesday or Thursday ; she attended the funeral 
with Mrs. Milen and wore a mourning dress, rode in the car- 
riage next to the hearse, threw a flower into the grave; after 
the burial returned to the house and remained in their room — 
Mrs. Milen 's room — stayed in the house all day; her father 
was in San Jose, he came back next day, remained over night 
and then returned to San Jose ; she slept with them that night ; 
Dr. James presented her with several articles of apparel from 
the 6th of January, 1895 — a pair of shoes, dresses, chemises, 
and some skirts from a trunk ; this was after marriage ; he gave 
her a ring, band ring, gold, heavy — too large and heavy, for 
her ; this was just after the contract was signed ; she wore it a 
few days and then told him it was too large and heavy ; he said 
he would take it and have it fixed ; he then handed her a small 
ring, about a week after ; he gave her another ring with a blue 
stone ; she never wore the ring because she did not like it ; after 
the marriage by contract on the 6th of January, 1895, had 
intercourse with him on the first night and three subsequent 
nights, so far as she could remember, and slept with him every 
night until the night preceding his death ; she first had menses 
when she was twelve or thirteen years old; menses became ir- 



Estate of James. 139 

regular in or about January, 1895, and at that time Dr. Terry 
came in first to see her and Dr. James told him that she seemed 
uneasy because she had not had her menses ; Dr. Terry felt her 
pulse and said it was nothing but a cold ; Dr. James said in so 
many words, "My wife seems uneasy because she has not had 
her menses"; she was introduced to Dr. Terry and others by 
Dr. James as his wife ; when he was about to be buried the 
undertaker wanted to bury him in his clothes, but she insisted 
on a shroud ; she attended his funeral and was accompanied by 
her sister and their stepmother, Mrs. Milen ; she wore mourn- 
ing and continued so to dress for over a year; the baby was 
born on the 16th of September, 1895, she was unconscious at 
the time of the birth; she noticed the baby; it seemed to be 
sleeping all the time ; the finger-nails did not seem to be fully 
developed ; after she got up, in about three weeks, the child 
seemed to be more wakeful ; Dr. James was the father of that 
child; during the period of their marriage he had no office 
hours ; he remained at 925 Howard street ; he passed his time 
with her; he passed his evenings with her always; when the 
rooms were locked up immediately after the death of Dr. 
James the keys were given to Maria Mangan ; she did not know 
when the piano was taken away — it was a rented piano, an 
upright, upon which she used to practice three or four hours a 
day ; she told Mrs. Milen she was married by contract ; they 
went to dinner at the Creamerie "because they wanted to"; 
she knew he had a cook in the house, Maria Mangan ; he had no 
regular hour for dining ; she did not remember when they re- 
tired on the evening of the 7th of January, 1895 ; he arose 
earlier than she did on that morning and brought her break- 
fast to her bedside; Maria Mangan made up the rooms; she 
cooked the breakfast in the kitchen — Maria did the cooking, 
same on the 8th ; after she arose she went into the offices ; she 
never told Maria that she was married nor did she know that 
the doctor communicated that fact to his cook, housekeeper, 
and maid of all work, Maria Mangan; "JNIaria did all the 
work"; the bride remained at home all day each day; she did 
not stir abroad during these days; when her husband was 
taken ill he was in bed with her ; she arose and built a fire in 
the back parlor and prepared and applied hot cloths to his 
shoulder where he complained of pain and she waited upon 



140 Coffey's Probate Decisions, Vol. 3. 

him all day ; she did not go to the theater that day nor did any 
member of her family; she went to dinner at the Creamerie 
that day because she wanted to go out to dinner that day ; she 
first learned that she was pregnant when she missed her 
menses ; her father was informed by telegram by Mrs. Milen ; 
she afterward entered the rooms of Dr. James ; she took posses- 
sion of the rooms in March by advice of Mrs. Milen and Gen- 
eral Hart. 

This is in brief the story of Laura as to the courtship and 
marriage, the consent and the contract, the consummation and 
the cohabitation — all covering from the inception to the tem- 
poral termination, little more than a month ; the first meeting 
on the 13th or 14th of December, 1894; the catarrhal treat- 
ment daily thereafter, and the tentative tenderness and in- 
creasing interest in her exhibited by him until his proposal in 
his office by the fireside on the eve of Christmas, 1894; her 
discreet evasion of an immediate response to his ardent avowal 
of affection and continuance of the case until she had oppor- 
tunity of consultation with her absent father and her present 
stepmother ; the result of advice and deliberation ; the culmina- 
tion of the courtship in the contract on January 6, 1895 ; the 
marital assumption immediate and continuous thenceforward; 
the end — January 28, 1895. If this outline express or indi- 
cate the facts in proof, marriage is established as alleged. 

It is claimed that the contractual relation has been proved, 
and that under it the decedent and his surviving spouse (1) 
lived together in the same house, (2) ate together at the same 
table, (3) slept together in the same bed, and (4) introduced 
and recognized each other as husband and wife. Proof of 
these facts is prima facie evidence of the assumption of the 
marital rights, duties and obligations, and is the grand total 
of marital relations expressed in the term "cohabitation" from 
which marriage may be presumed. 

How have these facts been proved? It is said (1) by the 
positive testimony of witnesses as to seeing the contract on 
January 6, 1895, and (2) by the testimony of the admissions 
made by deceased to certain persons at different times. 

"We have outlined the testimony of the surviving principal 
to this agreement, and she is supported primarily by her step- 
mother, Mrs. Milen, whose name in full as given by her under 



Estate of James. 141 

oath is Jessie Luella Orrell Milen ; she first saw the deceased, 
Dr. James, on December 12, 1894; the next morning she intro- 
duced her stepdaughter Laura to him — that was on December 
13, 1894; the terms of the introduction were, "Dr. James, this 
is Miss Milen"; the stepmother first ascertained the business 
of Dr. James the night they went there ; she heard Dr. James 
talking to her husband; the deceased said that he was a spe- 
cialist in catarrh and cough trouble ; after the introduction 
Dr. James became very attentive to Laura ; he was always fol- 
lowing them around ; he gave them no peace — in fact, he be- 
came to the stepmother almost intolerable as a nuisance, so 
persistent was he in his cupidous chase; he would come to 
the door of their room and make some excuse for calling — ask 
them to play some music; ask if they did not want to go to 
dinner or to the theater, or to visit and keep him company as 
he was lonely : 

"Eight thro' his manful breast darted the pang 
That makes a man, in the sweet face of her 
Whom he loves most, lonely and miserable." 

Dr. James was especially fond of music, seemed to dote on 
the renditions of Laura; his favorite was "Love's Sorrow" — 
he liked a dreamy piece, soft, sad and sweet ; he made her sing 
the same love song several successive times, he liked it so 
much, and she sang and played on, and still he seemed not 
surfeited with this food of love, and for him it seemed as he 
listened to the melody and contemplated the "happy melodist, 
unwearied, forever singing songs forever new," that 

"Love took up the harp, and smote on all 
the chords with might; 
Smote the chord of self, that, trembUng, passed 
in music out of sight" 

into the heart of this ancient and ardent lover, whose rheumy 
eyes were moist with emotion as he picked up the sheets of 
music and passionately kissed them, complimenting Laura on 
her beautiful vocal and instrumental execution, and, veril}^ 
she did execution upon her admirer when she chanted for him 
again and again his favorite selection that seemed to give "a 
very echo to the seat where love is throned" and dallied with 
the innocence thereof in his old age. 



142 Coffey's Probate Decisions, Vol. 3. 

' Mrs. Milen had several conversations with Dr. James with 
reference to Laura, one on December 26, 1894, in the front 
parlor, Laura being present; he said, "I want to marry 
Laura." Mrs. Milen told him she would not consent because 
Laura was such a frail girl physically that the stepmother did 
not think she ought to marry; Dr. James then asked Mrs. 
Milen if she would write to her husband, Dr. Milen, and in- 
tercede for him ; she would and she did, and she received a 
response in these terms ("Mrs. James' Exhibit 7A") : 

"GOLDEN EAGLE HOTEL. 

"Spelman & Son Proprietors. 

"Redding, Cal., 12, 30. 1894. 

"Dear Wife: Your surprise letter of Saturday noon is just 
here. Pet I wish I knew what to do for your leg but I do not. 
The trouble is with the ovary certainly, just keep on trying is 
all I can advise. Well I don't know what to think of Dr. 
and LAURA. I can easily understand the Doctor, for any 
one could love her and could not help being kind to her, and 
there is no question about her doing her part as a faithful 
wife, but Pet what does she get in return, money is all very 
nice but money without love and respect on her part. I am 
afraid will not bring happiness and again JESSIE, you know 
a v/ife expects certain duties from a Husband and if he is un- 
able to perform those duties (or only in a way) the wife is 
soon dispondent. LAURA is not amorus and never will be 
yet she will have her passions and if not satisfied she will soon 
disslike her husband, you two must talk over this matter 
plainly, use plain language, reason every way. LAURA is of 
age and can do just what she pleases, but be sure she under- 
stands well, JESSIE, what married life means. One great 
advantage to a young Girl in marrying an Old Gentleman 
such as he is. She would be treated kindly she would be 
cared for. Well, you two must do as you think best. I dont 
know what to think is best. 

"Pet, if your leg is no better and you have told the Doctor 
the Ovarian Cause of it and he cant relieve it send for Doctor 
PRESTON or GIBERSON dont wait any longer. I am free 
to acknowledge that I am not sure what will stop it, and I will 
be glad to find some one that does know what to do for it. 



Estate of James. 143 

"Well, I got an other beautiful nose didy last evening in a 
handsome didy box nicely inscribed in some foreign Language 
so it must be imported (the box) I think from EGYPT for it 
speaks of Corn on the box, and then it says Plasters, I suppose 
that is some City in EGYPT. Well I have so many silk hand- 
cherchiefs now that I have to count them two or three times 
per day to see that they are all here. I will soon have to 
carry an extry man to look after my baggage for its has in- 
creased wonderfully, when I come here I only had one pair of 
socks, now I counted them and there is three pair and four 
silk handerchiefs besides my big black one, but since I have 
a box to put them in they will be easier to look after. 
. "You ask why we did not stop at the Temple? on account 
of those exposed stairs persons would hesitate about coming to 
see us when all the loafers could see just who did come, here 
the stairs is not so long and don't pass through the Office, the 
People here are very nice and kind. I don't believe I told you 
yet that I am well I feel just splendid and am getting to eat 
quite natural again. 

"We expect to remain here until about Jan. 7. I do hope 
my Pet is well by this time, I will not send you any money 
again until perhaps Thursday. I will try to get some to you 
by the time the scraps of your last purchase is used up. 

"Lovingly yours, 

"TIIEO." 

On the afternoon when she received this letter from her 
husband, who was then in Redding, California, she saw Dr. 
James and showed him the letter and he read it ; in about an 
hour and a half afterward Mrs. Milen saw him in his office 
in the back parlor and they had a conversation upon the topic 
of the letter; he said, "I love Laura and want her to marry 
me, and I wish you would intercede for me." Mrs. Milen 
told him to do his own courting ; he was very gallant toward 
Laura ; Mrs. JNIilen remembered the 6th of January, 1895, 
when Dr. James came to her room and said, "Here's a dol- 
lar and a half; you and Mrs. Dickman go to the matinee at 
Morosco's and afterward to the Creamerie; the matinee is 
very good — Laura and I were there yesterday." Mrs. Dick- 
man and Mrs. Milen went to the matinee and returned at 
about 6 o'clock; on the same evening, in the front parlor, 



144 Coffey's Probate Decisions, Vol. 3. 

Laura told her stepmother that she was married by contract to 
Dr. James; Mrs. Milen said, "Is that possible?" and opened 
the folding doors to the back parlor and saw Dr. James and 
had a conversation with him about 7 or half -past 7 o'clock; 
Mrs. Milen said, "What about this contract? I do not under- 
stand it" ; Dr. James said that it was just as good as though a 
dozen ministers or priests had performed it. Mrs. Milen then 
took the paper and read it thrice to herself and became con- 
vinced. Laura slept with the doctor that night ; they retired 
at about 10 o'clock; before retiring they had some lunch in 
the back parlor; Dr. James said that he never believed he 
could be so happy ; Mrs. Milen slept on a sofa in the back par- 
lor; from that night on until he died Dr. James slept with 
Laura; although she did not see them actually sleeping to- 
gether, but she saw Laura in the same room and in the bed in 
that room. Dr. James appeared perfectly well until just be- 
fore his death; he first complained of feeling ill at about 8 
o'clock on the morning of the 28tb of January, 1895; Mrs 
Milen was with him when he died and Laura was there also ; 
there came in also Mr. and Mrs. Dickman, Maria Mangan, 
and a Miss Coon ; others also ; the death occurred at near 11 
o'clock in the evening of January 28, 1895; Laura insisted 
that he should be buried in a shroud ; Mrs. Milen told the 
undertaker that herself and her stepdaughter, "Mrs. James," 
would be responsible for the shroud ; the undertaker said that 
the administrator wanted the doctor buried in his clothes, but 
Mrs. Milen and "Mrs. James" insisted that he should have a 
shroud, and it was so done ; Mrs. Milen first saw the marriage 
contract after the death of Dr. James when Mr. Shadburne, 
the attorney for the absent heirs, and Mr. Cluin, clerk for the 
administrator, and Mrs. James were present, and General 
Hart finding the contract in the desk took it out and handed 
it to Mrs. James and she took it and grabbed it to her bosom, 
and then Mrs. Milen took it out of her hand; this occurred 
on the 25th of February, 1895 ; the desk had been sealed and 
the room locked; neither Mrs. James nor Mrs. Milen had a 
key to the room, nor had access to it from the time the ad- 
ministrator took possession until the day of this discovery in 
the desk, February 25, 1895 ; Dr. James was very devoted 
to Laura — kissed her, called her pet names, "my love," "my 



Estate of James. 145 

darling," "my little wifey," and "little one"; he called her 
by these endearing epithets continually. Mrs. Milen did not 
know the height of Dr. James; he had blue eyes, white hair 
and mustache, face white, beautiful complexion, perfectly 
clear; baby's blue; forehead high, light brown hair with a 
reddish tinge, quite full under the eyes, heavy crescent line 
under the eye; round face, chin with slight dimple, short 
round arm, little fat hands ; long body and short limbs ; hair 
rebellious ; Dr. James had a high, broad forehead, blue eyes, 
heavy line under eyes very full ; very deep line running from 
the nose toward the temple; large mouth, round chin with a 
slight dimple ; rather a short, fat man ; the baby was born on 
the 16th of September, 1895, in the back parlor; Mrs. Milen 
saw the baby five minutes after the birth ; Dr. Walton Pres- 
ton was the doctor; Dr. Milen was there also; Mrs. Milen 
noticed that the child's finger and toe nails were not fully 
developed and the legs from the knees down were not full)'' 
developed; understood that the undeveloped condition of the 
child's nails signified premature birth; it was three weeks 
short of the full time; at the time Dr. James became ill he 
complained of pain in his shoulder and in his heart; Dr. 
James died at about 11 in the evening and Mrs. IMilen was 
present at the time ; she had been in the room at about 
7 o'clock; she dined that day at the New Creamerie with 
Laura; they were gone to dinner nearly two hours; Maria 
Mangan was in the house; when Mrs. Milen and Laura re- 
turned Dr. James was in his room alone; at the time of his 
death the so-called "Indian Doctor" was there; Mrs. Milen 
did not knoAV by whom this "Indian Doctor" was called in; 
he lived hard by the house of the deceased ; it was not Maria 
Mangan that suggested a shroud — it was Laura, "Mrs. 
James"; the undertaker called at the house after the death 
and said that his bill had not been paid ; although she had 
told the undertaker that herself and her stepdaughter would 
be responsible for the burial bill, they did not discharge that 
debt; the administrator paid it and the bill was rendered to 
the estate of deceased ; Mrs. Milen was present when her hus- 
band met Dr. James after her husband had returned to town ; 
Dr. Milen shook Dr. James by the hand and congratulated 
him, saying, "I believe you are my son now," and Dr. James 

Prob. Dec, Vol. Ill — 10 



146 Coffey's Probate Decisions, Vol. 3. 

made appropriate acknowledgment and response affirma- 
tivelj^; Dr. Milen had learned of the marriage from his wife's 
letter to him; Mrs. Milen sent a telegram to her husband in 
San Jose about the 13th of February, 1895, in which she said, 
"Laura is pregnant; what shall I do?" Dr. James had 
made many presents to Laura — articles of apparel, rings, silk 
chemises, handkerchiefs, skirts, green silk, black silk and 
white, and on New Year's Day, 1895, he knocked at their 
door and he said to Mrs. Milen, "Here is your New Year 

' presents," handing to Laura a dress, which subsequently she 
had made up, and to Mrs. Milen he gave a black silk dress. 

It is claimed by counsel that these recited attentions paid 
to Laura prior to January 6, 1895, and the gifts bestowed 
upon her and her stepmother indicate that he intended to 
marry her, and especially when his attentions to her were ex- 
clusive, and it was not his habit to make presents, for Dr. 
James, even when he listened to the joyous "melodies of 
love," and though on marriage he "was bent he had a frugal 
mind" and did not care to spend a cent. This point is relied 
upon to show the probability of petitioner's pretensions, for 
this close and penurious man who, according to a witness, 
Maria Mangan, adverse to this claimant, w^as willing to sell 
his deceased wife's clothes, w^ho gave no presents to anyone, 

' presented Laura with valuable garments to be worn next her 
person, a certain token of affection, and he placated his pros- 
pective mother in law, Mrs. Milen, with a rich silk dress; he 
was exceptional in his attentions to this attractive little 
woman, showing extreme devotion to her, giving to her and 
her stepmother dainty luncheons of cheese, crackers, pickles, 
and sour wines; taking them to dinner and the theater. 
These marks and manifestations of fondness showed that he 
must have contemplated marriage prior to January 6, 1895 — 
contemplation culminating in consummation on the evening 
of that day. So the counsel for claimant considered that they 
started out in this case with circumstances constituting a 
hypothesis perfect in its proportions and paragonal in its 
probability, supported by proof positive and plenary of the 
existence of the contract and of the declarations made by the 
deceased, Dr. James, that he w^as married to Laura IMilen. 
and, the counsel claims, this evidence came from unimpeached 



Estate of James. 147 

sources tlirongh unpolluted channels. One of the sources is 
Dr. Theodore Milen, the father of the petitioner Laura, a 
peripatetic physician earning a scanty subsistence out of a 
precarious practice, "on the road," as he testified, sometimes 
utilizing the natural gifts of his young family in vaudeville 
entertainments or interludes, while he lectured on diseases 
peculiar to the sexes, and treated cases chronic in their 
nature arising from excesses and vended nostrums calculated 
for their cure. In 1894 the family of Dr. Milen changed 
their abode several times, and in December of that year he 
was engaged in his itinerant occupation at Oroville, Red 
Bluff and Redding, in the northern part of California; at 
Redding he received a communication from his wife and also 
from Dr. James; the purport of Dr. James' letter was that 
he asked for Laura in marriage. Dr. Milen did not answer 
the letter of Dr. James but he did answer that of his wife to 
the same purport ; Dr. Milen spent hours in writing that let- 
ter, which, by the way, consists of less than three pages of 
ordinary letter-cap and contains about four hundred and 
seventy words ; Dr. Milen left Redding January 11, 1895, 
for San Francisco, and went to 925 Howard street, and met 
his wife and "Mrs. James," and he met Dr. James that same 
evening in their room — that is, the room of the Milens; at 
about half -past 7 o'clock in that evening the decedent came 
into the room ; Mrs. Milen had a lunch prepared — tamales 
and beer or wine, crackers and pickles ; when Dr. James came 
in Dr. Milen said to him, "Doctor, I suppose this is my son," 
to which Dr. James answered, "Yes, if this is your daughter^ 
for she is my wife"; then they partook of the lunch; they 
remained about one hour and a half — that was the evening 
of January 12, 1895 ; Dr. Milen met Dr. James the next 
evening, Sunday, the 13th of January, 1895, in the back 
parlor. Dr. Milen 's wife and daughter present; Dr. Milen 
asked Dr. James, "Doctor, how about this marriage con- 
tract? My people are old-fashioned Methodists and won't 
understand it, and I understand this is not legal outside of 
California"; he had previously requested Laura to leave the 
room and she did so ; Dr. James pulled out a paper, this 
contract, and Dr. Milen read it twice over himself; Dr. 
James said he would provide for "the little one," as he 



148 Coffey's Probate Decisions, Vol. 3. 

called her; the next morning Dr. Milen took to the road to 
practice medicine at San Jose; at that time Dr. Milen re- 
ceived a paper known in this record as *'Mrs. James' Exhibit 
8 and 8A," envelope containing letter inclosing a Wells- 
Fargo money order for $25 ; the letter was dated January 16, 
1895, and signed "Chas. A. James"; the envelope was ad- 
dressed ** Theodore Milen, care St. James Hotel, San Jose"; 
Dr. Milen did not answer this letter, but he preserved it ; it 
may be remarked that he did not preserve the letters he 
received at Eedding; on the same evening of the receipt of 
the letter and money order at San Jose he came to San Fran- 
cisco and went to 925 Howard street, returning to San Jose 
the next morning, and remained there until he heard of the 
death of Dr. James, on the evening of the 29th, when he 
"immediately came home." Dr. Milen did not remain for 
the funeral because of his business in San Jose, which, though 
not lucrative, necessitated his personal attention ; after he 
received the telegram announcing Dr. James' death Dr. 
Milen came to San Francisco and remained that night, 29th 
of January, 1895, and slept in the same room and in the 
same bed with his wife and daughter Laura; returned next 
morning to San Jose and remained there until February 8. 
1895, when he came back to San Francisco and learned that 
the public administrator had taken possession of the estate 
of Dr. Jpmes. 

Dr. Milen bestowed all the care that he could over the 
books and education of Laura ; he never gave his wife any 
special instructions about the moral culture of his children ; 
he considered that his wife was competent to care for them 
in that respect, and he did not think it necessary to dictate 
to her in the matter of their intellectual and ethical train- 
ing; in 189-4 Laura was past eighteen years of age, Lulu was 
sixteen years of age, Blrs. Jessie Milen, their stepmother, 
wife of Dr. Milen, twenty-five years of age; Dr. Milen 's first 
wife died in 1887 ; he married again in 1890 ; his second wife, 
the present Mrs. Jessie Milen, had been previously married 
to one Milo Harris, when she was sixteen years old, with 
whom she lived for a year or more and of whose current 
existence she entertains dubiety; both Dr. IVIilen and his 
wife Jessie regarded with aversion the form of marriage by 



Estate of James. 149 

contract, as they believed in a marriage by a priest or minis- 
ter — although Mrs. Milen did not belong to the same faith 
as her husband's people, she was not an old-fashioned 
Methodist, and she had never heard of a marriage contract 
before, and had an antipathy for such a connubial contriv- 
ance, yet they accepted implicitly the assurance of Dr. James 
that it was all right and that even an oral agreement would 
suffice; Dr. Milen had sentiments of repugnance to this kind 
of marriage, and thought it was not proper, although he was 
informed it was legal in California, and so he acquiesced; at 
the time of his second marriage in St. Charles, Missouri, on 
February 1, 1890, Laura was about fourteen or fifteen years 
of age, Lulu about three years younger, his wife about twenty 
or twentj^-one, himself about thirty-six years of age ; that 
constituted his family. Shortly after that marriage his wife 
took charge of the children and she says she cared for them 
and guarded them as if they were her own children; she 
made companions of these two children rather than daugh- 
ters. To the best of his ability Dr. Milen had used every 
effort in the education of his daughters for their moral and 
mental culture ; he had tried to throw around them every 
influence for good, and he had never known of any evil 
environment about Laura during all the time up to what 
he claimed to be her marriage; he knew that his wife was 
the author of a book which he had seen but not read, the 
title of which was and is, ' ' "Was He to Blame, The Temptress, 
by Orrell, " "a stor}^ of love and passion," and containing on 
the title page a supposed representation of an artist paint- 
ing a female human figure standing upon a studio platform 
and entirely undraped, with the right arm holding back a 
curtain and the left covering with its hand the eyes of the 
model ; this feminine form is altogether nude ; this pictorial 
representation constitutes the frontispiece of the book, 
directly presenting itself to the eye of the observer; on page 
40 of the same volume the picture is repeated ; other pictures 
appealing to a concupiscent imagination, without any excuse 
in the abused name of art, are interspersed in this paper 
covered and bound collection of printed sheets numbering 
one hundred and sixty-eight pages, and supplemented by an 
advertisement of *'a sure, safe and speedy cure for all 



150 Coffey's Probate Decisions, Vol. 3. 

monthly irregularities (from whatever cause), no instruments 
used," and so on, by "a true friend of her sex," one "Mrs. 
Dr. Gwyer, Sliy^ Hyde street, San Francisco, Cal."; added 
to this on the next page is another advertisement of Dr. 
Sante's Grains of Strength French Cure "for certain specified 
sexual ailments," winding up with an injunction to "Use Dr. 
Foulet's Prophylactic Powder" for female complaints. Dr. 
Milen did not know whether this book or its manuscript was 
open to the inspection of his daughter while his wife was 
engaged in its composition ; Mrs. Milen was a long time writ- 
ing it ; she was writing nearly all the time ; there was no 
secrecy about the writing of this volume ; his daughter might 
have seen it. Mrs. Milen testified concerning the publication 
of this work that she sold the manuscript to the Bancroft 
Company for $100 to their agent, a Mr. Packer, in their 
printing house on First street in presence of a Mr. Shahan, 
who took the written matter and Packer paid her at her house 
on Valencia street; Shahan was the manager of the printing 
department of the Bancroft Company, and he says he was 
present when Mrs. Milen sold the manuscript to Mark M. 
Packer, and that the name "M. M. Caine" in the copyright 
was put in by Packer, the initials "M. M." standing for his 
(iwn initials and "Caine" being his mother's maiden name — 
a rare mark of respect for the memory of one's mother! 
Since the time of the mother of the first Cain it may doubted 
that any such mark of filial veneration has been bestowed 
upon a descendant of Eve; but the reason for this was as- 
signed clearly and cleverly by Mr. Shahan ; it was to elude 
the vigilance of the Society for the Prevention of Vice, whose 
agents were on the trail of such publications, and by the 
direction of Thos. A. C. Dorland, now deceased, then gen- 
eral manager of the Bancroft Company, false entries were 
made in the books of that concern, in presence of Shahan, 
and Packer purchased the pictures for the book, with the 
publishing of which Mrs. Milen had nothing to do. Dorland 
is dead and Packer was not produced at the trial, and Sha- 
han has not been with the company since ISQ^l. Dorland 
being dead and Packer not produced, we have on one side 
statements as to this transaction by Mrs. Jessie Milen and 
Shahan, the latter corroborating her as to the sale of the 



Estate of James. 151 

manuscripts but not as to the actual payment of the price, 
and, on the other side, we have testimony from the engraver. 
Andrew C. Cunningham, who says that he reproduced for 
Mrs. Jessie Milen from a photograph the engravings in the 
book, and that he understood that it was a picture of her 
stepdaughter Laura; Mrs. Jessie Milen gave to Cunningham 
the order for the photographic reproduction ; the figure was 
nude and represented the form of Laura Milen ; the engraver 
was given the order by Mrs. Jessie Milen to make those licen- 
tious pictures to illustrate this book; she told this engraver 
that the form in the photograph was that of her stepdaughter 
Laura; the features of the face in the pictures are covered 
by a hand, thus partially concealing the countenance ; Mrs. 
Jessie Milen denies that she furnished the photographs, and 
denounces Cunningham's testimony as totally false, and she 
similarly stigmatizes the entries in the books of the Bancroft 
Company, produced and identified by Mr. Weir, the book- 
keeper for the incorporation, which show that on August 3, 
1893, she was debited with one thousand novels, $100, and 
credited with four payments on account, $50-|-20-|-10+10= 
$90, leaving a balance due to the printing company of $10, 
still due and unpaid. This book was considered so obnoxious, 
morally, that Francis Joseph Kane, agent of the Society for 
the Suppression of Vice, confiscated all that he could find in 
the book stores because of the salacious character of the con- 
tents. Laura denies that any photograph of herself was 
furnished for the preparation of the engraving in this book, 
and says that she first saw the volume in Dr. James' back 
parlor, when she was in there with Mrs. Milen ; Dr. James 
took it from a drawer and asked JMrs. Milen if she had ever 
seen it and the answer was "Yes, I am the author"; Laura 
had never seen it prior to that time nor had she up to date 
read it; she never read the proofs nor manuscript of her 
stepmother's novels; her stepmother was always w^riting; but 
Laura never took any interest in what she was writing nor 
evinced any inquisitiveness about it, and her stepmother was 
very particular about keeping it to herself ; she kept her own 
counsel as to her literary compositions and did not employ 
Laura as an amanuensis or corrector of proofs. Mrs. Milen 
says that the illustrations for the book were obtained by Dr. 



152 Coffey's Probate Decisions, Vol. 3. 

Milen from an artist named Cunningham; Shahan says the 
pictures were purchased by Packer; Dr. Milen never read the 
book but says there was no secrecy about it ; Mrs. Milen says 
she alwaj's observed secrecy as to her manuscripts, and care- 
fully concealed them in a drawer of her desk and locked it, 
and that her stepdaughter had no opportunity of seeing any 
portion of her manuscripts, and that they heeded her behest 
not to read her writings ; there is testimony of George Hud- 
son and ]\Iiss Charlotte K. Clark at variance with this sug- 
gestion of secrecy, but apart from their evidence there is in 
the Milen-Shahan statements a medley of contradictions hard 
to reconcile ; the whole circumstance, however, in the opinion 
of counsel for petitioner Laura, is sheer hearsay, and should 
not have been admitted in evidence; it is immaterial and, 
moreover, the groundwork of the book is not immoral. It 
may have a profound moral purpose for the propagation of 
purity of thought and action, but if that be its intent it is 
too deep and obscure for the carnal sense to penetrate ; it is 
essentially a bad book, a bawdy book; the letter-press written 
up to the lascivious engravings; the tenor of the text turgid 
and tawdry; the composition execrable in every respect — 
cheap, course, ungrammatical; and, assuming it to be orig- 
inal in conception, it is ineffably vile in matter^ manner and 
execution ; and this book, which she and her stepdaughter say 
was guarded while in process of construction under lock and 
key and which Dr. Milen says there was no secrecy about, 
was written by a woman to whose care was committed the 
mental and moral culture of two young girls, and in whom 
their father had complete confidence as to her competency to 
rear them and who suffered no evil environment to encom- 
pass them. All this is asserted to be immaterial by counsel 
for the claimant Laura, but it must be remembered that it 
was drawn out by him in his endeavor to show from the 
mouth of his own witness. Dr. Milen, that the domestic train- 
ing of his children in the family of which Mrs. Jessie Milen, 
their stepmother, was the head was in the highest degree 
moral, and that, while he was engaged in his doctoral divaga- 
tions up and down and around about the country, Laura and 
Lulu were committed to the care of his wife, who guarded 
them as if they were her own children. It is claimed by 



Estate of James. 153 

counsel for petitioner that the contract writing itself is 
established as existing on January 6, 1895, b^^ direct and 
positive testimony of the three witnesses, Laura, INIrs. Jessie 
Milen, and Dr. Milen, and that their evidence is corroborated 
by admissions made by decedent to Dr. Parshall Adam Terry 
on the 13th of January, 1895, that he was married in this 
manner. Dr. Terry testifies that he saw Dr. James on the 
23d of December, 1894, at the decedent's house, 925 Howard 
street, where he went to buy medicine of him. Dr. James 
introduced him to Mrs. Jessie Milen and Miss Laura Milen, 
now ]\Irs. James; on January 13, 1895, Dr. James called at 
the office of Dr. Terry, then at 788 Harrison street, and told 
Terry that he was married to that young lady by contract. 
Dr. Terry called at 925 Howard street that same daj^ and 
met Dr. James there and he called this lady into his office 
and he said, ''Dr. Terry this is my wife, Mrs. James," and 
he said to her, "My little one, this is my old friend that you 
have heard me speak of, Dr. Terry." This might be con- 
sidered a somewhat superfluous formula, if it be taken as 
true, as testified almost in the same breath by Terry, that 
at the same place just three weeks before, precisely twenty- 
one days, he was introduced to Laura by Dr. James. To that 
extent the introduction should seem to be unnecessary, ex- 
cept, perhaps, for the purpose of this case it might have been 
deemed essential for the sake of emphasis; but however that 
may be. Dr. Terry wished her joy and congratulated her on 
having so good a husband. Dr. Terry saw Dr. James again 
on January 20th. On January 20, 1895, Dr. James called on 
Dr. Terry at his office, 788 Harrison street, and asked him to 
call and see his wife as she was ill. Dr. James did not sup- 
pose much was the matter with her but she was "grunting" 
and he wanted Dr. Terry to visit her. Dr. James said he 
was in hopes that she was in the family way as that was the 
reason he married a young wife, that he might have an heir. 
Dr. Terry went to see her. Dr. James had admonished him 
not to give her any medicine or anything to cause any 
derangement of her system. Dr. Terry saw her in the bed- 
room in bed in her night clothes, under the bedclothes ; felt 
her pulse, looked at her tongue, and said to Dr. James, "Doc- 
tor your wife has only a little cold, and a little quinine is all 



154 Coffey's Probate Decisions, Vol. 3. 

she needs, and, now, that you have such faith in your remedy, 
is a good time to appl}- it." After that incident Dr. Terry 
never saw Dr. James again. On the 16th of September, 
1895, Dr. Terry had occasion to call at the house, 925 How- 
ard street, to see Dr. Milen about manufacturing the medicine 
that Dr. James used to make, and there saw a babe that had 
the appearance of a child just born ; its nails were not fully 
developed; the nurse took the babe out of the bed and by 
Dr. Milen 's request exhibited it to Dr. Terry; the mother 
was lying in bed ; the nails were four-fifths long, all the way 
to the end of the fingers; Dr. Terry had never seen a fully 
developed child with nails like that before since the beginning 
of his medical studies in 1841 ; with the exception of this 
child, he could not recall any infant with short, undeveloped 
nails who lived ; this child looked healthy ; Dr. Terry never 
dined with Dr. James nor took a meal with him; he usually 
visited Dr. James on Sunday and went to buy medicine for 
his asthmatic trouble; Dr. James was in excellent health and 
spirits at the time he visited Terry January 13, 1895. 

As to the visit of Dr. James to Dr. Terry on Sunday, Janu- 
ary 13, 1895, testimonj^ comes from George Elisha Terry, son 
of the latter, who appears to have been providentially present 
when the visitor came in and said to father. Dr. Terry, "I 
have good news to tell you; I have been married." The 
elder Terry said, "Well, I have seen nothing about it in the 
papers," to which Dr. James made answer, "I was married 
by contract, which I consider better than a marriage by a 
notary or minister, as I don't want publicity in my affairs." 
Dr. Terry inquired, "Who is the fortunate lady?" Dr. 
James replied, "Miss Laura Milen, the young lady to whom 
I introduced you." Dr. Terry responded, "I congratulate 
you on marrying a young lady who will take care of you," 
to which Dr. James retorted, "Oh, no! I don't need anybody 
to take care of me; I can take care of her." So the Terrys 
chimed in with each other as to the eventful interview of 
January 13, 1895. 

In further fortification of the case of petitioner, and to 
clinch, as it were, the demonstration of the declarations of 
decedent, two witnesses are presented, George Williams and 
John Bigby, the first of whom testified he knew the deceased 



Estate of James. 155 

for about twenty-five years back, and that he met hira a week 
or two before he died on Howard street, near Fifth. Williams 
was with his friend Bigby, and the two met Dr. James, to 
whom he introduced them as Mrs. James; the incident of this 
introduction was testified to by Bigby, who put it, however, 
"as the forepart of January, 1895." The deceased said, 
"Mr. Bigby, this is my wife, Mrs. James." The claimant 
here differs somewhat in her relation of this imputed intro- 
duction ; she speaks of two young men as the persons. Both 
Mr. Williams and Mr. Bigby are old-timers; one came here 
in 1855 and the other crossed the Isthmus of Darien hither 
bound in 1850 or 1851; the latter described Dr. James at 
the time of the introduction, "forepart of January, 1895," 
between 12th and 15th, as pretty gray — in fact, he was pretty 
gray in 1887 or 1888, when they first met; gray mustache 
"like mine now"; light brownish complexion, hair perfectly 
white, in 1887 or 1888 ; the same man that he was then intro- 
duced to he met as related in January, 1895; neither Williams 
nor Bigby could be accused of being young men at that time ; 
indeed, they were well along in years. 

These items of evidence with the statement of Mrs. Lulu 
Blanche Dickman that Dr. James asked her about a week 
before his death, "Has Laura told you of our marriage?" to 
which she answered "Yes," constitute the sum total of affirm- 
ative declarations of the decedent; and it is stoutly contended 
by counsel for claimant that they afford irrefragable proof 
of the marital relation, in conjunction with the contract and 
its concomitant and consequent circumstances; they cannot 
be overcome by contrary conduct and by negative declara- 
tions; the status once established is forever fixed, and cannot 
be gainsaid by any quantity of declarations or any amount of 
acts of decedent that are inconsistent therewith. He told 
Dr. Terry on the 13th of January, 1895, that he did not put 
the notice of the marriage in the papers nor have it cele- 
brated by a notary or minister, because he did not want pub- 
licity in his affairs, and then, within a day or two, "the fore- 
part of January, 1895," between the 12th and 15th, he intro- 
duces her publicly on a main thoroughfare to Bigby and 
Williams. Counsel for claimant concede that contradictions 
have arisen in this case, but insist that the court must esti- 



156 Coffey's Probate Decisions, Vol. 3, 

mate the evidence by its own intrinsic weight, and consider 
the character of the witnesses, their means of knowledge 
and the possibility of their interest or bias. This is the code 
rule of evidence ; it is also common law and common sense ; 
and is the touchstone of truth in this controvers3^ Her coun- 
sel claim that the case of petitioner is so strong and straight 
that nothing can move it from its firm base of integrity, and 
that the defense here is purely mechanical; it is an unsub- 
stantial fabric that falls of its own falsity and fails to shake 
the solid structure of claimant's case. This metaphor is 
somewhat mixed and a little rocky, it must be confessed, but, 
as the same counsel say, there need be no fear that this 
mechanical defense so founded on false theories fabricated 
to deceive will effect its object, "for the practical eye of the 
experienced .judge will penetrate this superficial structure 
and reveal the fact," and, following the precedents made by 
"the decisions of this court, which are uniformly in favor of 
justice and humanity," the conclusion of this will be based 
solely on the facts and the law flowing therefrom. The court 
accepts the compliment of counsel with customary compla- 
cency, conscious that the record will bear it out and that the 
decision in this particular issue will be no departure from the 
patterns of the past. 

Mrs. Lulu Blanche Dickman tells a long story of the in- 
cidents connected with the courtship and circumstances of the 
marriage, but her husband, Henry Dickman, cuts another 
facet upon the brilliant tale told by his wife ; although Dr. 
Milen introduced him to his sister in law Laura as "Mrs. Dr. 
James," Dickman did not take it seriously, thought it was a 
"josh," to use his own elegant and expressive vernacular. 
That he took no stock in the combination is quite clear from 
the telegram he sent to the niece of deceased on the 31st of 
January, 1895, addressed to "Mattie James, Fort Madison, 
Iowa," in these words: "Your uncle Dr. James died yester- 
day at my house. Letter mailed to-day with full particulars. 
You need an attorney at once to represent you, and I recom- 
mend you to telegraph at once to Judge Levy, Nevada Block, 
to represent you in the meantime. Henry G. Dickman." He 
also sent letters to Mattie James and a form of a full power 
of attorney to her, constituting him her agent to do "every 



Estate of James. 157 

and all things'* in connection with the estate of her deceased 
uncle, as whose heir he assumed she was entitled to succeed. 
Counsel for claimant insist that the "facts are proved by 
those having knowledge thereof," and yet it should seem that 
this young husband, aged thirty, living continuously in this 
house during the period from the middle of December, 1894, 
with his wife. Lulu Blanche, to the date of the death of Dr. 
James, and ever since abiding therein, did not know that his 
sister in law Laura was married and never learned it from 
any source except a casual intro(^uction by Dr. Milen to her, 
Avhich he treated as a "josh," and that after the death of 
Dr. James he endeavored to capture the works for IMattie 
James. It was a very serious situation in that house on the 
evening of the 31st of January, 1895, the date of the tele- 
gram and letter from young husband Dickman to niece Mat- 
tie James, in which she was advised that her uncle, Dr. 
James, had died on the preceding Monday night. According 
to every other member of the Milen family, there was there 
a sorrow-stricken widow, in due time, or perhaps prema- 
turel.y, to become a mother, her sister Lulu, the young wife 
of Henry Dickman, the stepmother, Mrs. Jessie Milen, all 
of whom were profoundly moved by the sudden bereavement^ 
and yet Henry Dickman, a member of that household, who 
had a right to know all that his wife knew of the domestic 
affairs, and who presumably was one of those persons de- 
scribed by counsel for claimant when he says "facts are 
proved by those having knowledge thereof," wrote this care- 
fully considered letter in typewritten characters : 

"San Francisco, January 31st, 1895. 
"Mattie James, Fort Madison, Iowa: 

"On last Monday night your Uncle Dr. Charles James 
died at the place in which myself and wife reside. Myself 
and wife being his nearest friends in the City and County of 
San Francisco, I thought it would be no more than right to 
immediately advise you of the status of the matter. I under- 
stand that you are his only relative and it becomes therefore 
nacessary that you act immediately. Your uncle died leav- 
ing considerable money and as you are his only relative as 
I understand it becomes necessary that you should have a 
representative out here to look after your interests. As you 



158 Coffey's Probate Decisions, Vol, 3. 

understand the public administrator is already after the 
estate, so that I have been advised after consulting my attor- 
neys been advised to send the enclosed power of attorney to 
you, and if you will sign it and acknowledge and send it to 
me I can protect your interests and save you a great deal of 
expenses. If you decide upon doing this please sign the said 
power of attorney and acknowledge it before a commissioner 
of the State of California and return it immediately, and as 
I said before being the nearest friend of the Doctors out here 
I am better acquainted with his desires than any other per- 
son. Please let me hear from you immediately. 

''Respectfully, 

*'H. G. DICKMAN, 
"925 Howard St. 
*'San Francisco. 
"Received Feb. 4, 1895, 
"M. E. JAMES." 

The able and learned counsel for claimant contend that 
"Dr. James and she who was Laura Milen assumed marital 
rights, duties and obligations, and these were well evidenced 
for the short period between the time of marriage and his 
death. Eer relatives knew of the marriage.'* Now, here is 
Henry Dickman, the husband of the only sister of Laura, 
living in the same house, on the very day of the burial of 
deceased, sending the telegram quoted and this eloquent epis- 
tolary exposition of their domestic understanding that the 
niece, Mattie James, was the "only relative" of the deceased, 
and advising her of the predatory purpose and pursuit of 
the public administrator! 

The relatives of Laura knew of the marriage, say the coun- 
sel, and yet, according to this letter, Dickman and his wife 
were the "nearest friends" of the deceased and the "better 
acquainted with his desires than any other person"; they 
wanted to be empowered to "protect the interests of the only 
living relative," the niece Mattie James, although there was 
then in the house whence this document was dated the widow 
of the "father of the prospective offspring." 

"Others knew of the marriage," say the counsel for the 
claimant. We have considered seriatim Dr. Theodore Milen, 
Mrs. Jessie Milen, the Terrys, George Williams, John Bigby, 



Estate of James. 159 

Mrs. Laura Milen James, Mrs. Lulu Blanche Dickman and 
her husband Plenry G. Dickman, and we have remaining 
upon this point to establish by circumstance the more positive 
and direct proof three witnesses, the first of whom, John 
Thomas Currey, testifies that he knew the late Dr. Charles A. 
James; Mr. James' photograph was recognized by him; Mr. 
Curry was an acquaintance of Mr. Dickman, the husband of 
the sister of Mrs. Laura Milen James, to whom Currej' was 
first introduced in January, 1893, at the Girard House in 
Oakland when she was Miss Laura Milen ; Currey had known 
Henry Dickman in St. Paul, Minnesota ; subsequently Cur- 
rey saw "Mrs. James," Dr. James, Mrs. Milen and ]\Irs 
Dickman in the parlor of 925 Howard street on the 1st of 
December, 1894; saw them together on the 25th of Decem- 
ber, 1894, at dinner in the dining-room as he was passing 
through the hall on his way upstairs to see Dickman ; two 
or three weeks afterward, between the 10th and the 15th of 
January, 1895, he saw Dr. James, Mrs. Milen and "]\Iiss 
Milen" in the same dining-room. Currey did not know her 
then — between the 10th and 15th of January, 1895 — as 
"Mrs. James," nor was he ever introduced to her as Mrs. 
James; he learned of that from the newspapers; and yet 
Currey is relied upon to support the contention of cohabita- 
tion, introduction and recognition of the decedent and Laura 
by each other as husband and wife. This is rather thin 
gruel upon which to support so vital a proposition. 

Next we have, as the completing links in the chain of cir- 
cumstances bringing us down to the last scene of all, the 
testimony of Patrick Kelly and his pal, Richard Edmund 
Saunders. Kelly testifies that he was undertaker's assistant 
for Joseph Hagan, the funeral director and embalmer who 
buried the body of Dr. James. When Kelly went to the 
house of mourning he heard a childish voice say, "Oh, my 
poor husband!" and he turned and saw the young lady 
whom he identified at the trial as the claimant, and Mr. 
Saunders, who went to the same place with his friend, Mr. 
Kelly, testified that he was working at that time for Hagan, 
the undertaker, and that he was a pall-bearer at the funeral ; 
that he saw Hagan embalming the body; he and Hagan and 
a man named Williamson, and another man whose name he 



160 Coffey's Probate Decisions^ Vol. 3. 

could not recall, acted as pall-bearers at the funeral. Mrs. 
James was weeping ; she rode in a carriage behind the hearse ; 
she said, "Be careful, that is my poor husband"; she was 
weeping very much; this young lady was crying and threw 
her hands up to her eyes and said, ''Be careful, that is my 
poor husband!" The other two ladies, whom Saunders iden- 
tified as Mrs. Jessie Milen and Mrs. Dickman, were present. 

In connection with this testimony as to what took place at 
the time of the laying out of the corpse and the funeral, we 
have the statement in evidence of the funeral director who 
embalmed the body and who went to the house 925 Howard 
street upon request and inquired for relatives and was told 
that there were none. There were four ladies present; he 
went about the task of preparing the remains; this was on 
the 29th of January, 1895. At the time of the funeral Mrs. 
Milen asked him who was to ride in the mourners' carriage. 
Hagan said that in the absence of relatives the housekeeper 
would be the proper person. 'Mrs. Milen said that she did 
not know who was better entitled than the lady to whom the 
deceased was engaged to be married. That was the first 
Hagan had heard of any such person, and he assented to the 
proposition. This seems to account, in a measure, for the 
claimant's riding in the carriage next the hearse — a fact 
by which her counsel sets some store. Hagan saw no signs of 
sorrow or any wailings or manifestations of woe. No one 
said, "Oh, this is my poor husband!" This did not occur at 
any time, Kelly and Saunders to the contrary notwithstand- 
ing. These two men assisted Hagan at the time. There was 
no emotion at all displayed. A short Episcopal service was 
read by a clergyman, but there was no tear shedding; the 
ceremony was brief, with no signs of sorrow : 

"Few and short were the prayers that were said, 
And they spoke not a word of sorrow, 
Xot a tear was shed, not a funeral note 
As his corse to the graveyard they hurried." 

At the time of the funeral George Hudson testifies that he 
was present ; a minister was there who read the service ; there 
were also a ]\Iiss Weygant and her mother, Mrs. Weygant, 
the widow of an old friend and early emiployer of the de- 
ceased; also a Mrs. Sarah "Williams, an old friend of Dr. 



Estate of James. IGl 

James and a member of the Hudson household ; there were 
also Miss Maria Mangan and a cousin of hers, and several 
roomers in the house. Mrs. Jessie Milen, Miss Laura Milen, 
and Mrs. Dickman were there. ]\Ir. Newell Winants and Mr. 
George Hudson were the only male friends of the deceased 
present. Hudson came very early, while they were gathering 
there, and remained until the body was taken downstairs. 
There were no manifestations of mourning. "When the corpse 
was being removed from the room Hudson did not hear any 
ejaculations of any kind; he did not hear claimant say, "Oh, 
that is my poor husband; be careful!" No such exclamation 
was made ; there were no pall-bearers ; the funeral was in 
charge of the public administrator and the undertaker. At 
the time of the funeral the ladies, or most of them, were in 
the front room ; at the time of the funeral the ladies, or most 
of them, were there and the three ladies of the ]\Iilen family sat 
together on the east side of the room, and after the ceremony 
they retired into their own room, hall bedroom off the par- 
lor; they were not present when the coffin was removed, al- 
though they may have been present when it was closed. 
When the funeral procession was about to form the Milens 
were standing on the sidewalk and after a short time they 
took the carriage that followed the hearse. We shall have 
occasion presently to try the evidence of Mr. Hudson as to 
what preceded the incidents of the funeral, and now pass to 
the consideration of other witnesses. 

Mrs. Vica Mabel Fitzgerald, a young lady formerly Miss 
Vica Coon, was one of the roomers in the house at the time of 
the death of Dr. James. Miss Coon was a working girl, a shoe- 
fitter by trade, steady and diligent at her calling. She lived in 
a front room on the third floor, occupying an apartment ad- 
joining that of Miss Maria Mangan, separated by doors usually 
kept open, and Miss Maria Mangan and she were companions 
in the evening and usually kept pretty close to their rooms. 
Miss Coon was out of work when the IMilens came to 925 How- 
ard street in the middle of December, 1894; she did not meet 
them, however, until the 28th of January, 1895. Miss Coon 
was acquainted with the deceased. Dr. James, from June, 1894, 
until he died ; she was there a few minutes after he died ; she 
had lived in that house from June 17, 1894. There were liv- 

Prob. Dec, Vol. Ill —11 



162 Coffey's Probate Decisions, Vol. 3. 

ing in tlie James house, in addition to Miss Coon, Mamie and 
Kate Dalton, Maria Mangan, the housekeeper, ]\Irs. Biro, Mr. 
'Neill, Mr. Ott and the Milen family. Miss Coon usually left 
the house at 7 o'clock in the morning and returned at 6 in the 
evening. She first met the Milen family after the death of 
Dr. James. When Miss Coon went into the room Mrs. Milen 
was standing rubbing Dr. James' head and Laura and Lulu 
and the "Indian Doctor" were there; Maria Mangan was 
there, and some people from the street. Dr. James was sit- 
ting by the fire in the back parlor on the right-hand side as 
one went in from the front, in an armchair. There was in 
the room a sofa, an armchair, a settee, a bed, his desk and a 
bureau. He was sitting with his legs crossed and was lying 
back dead ; he had a wrap around him. Mrs. ]\Iilen said that 
she and Laura had been at the Orpheum and when they re- 
turned they thought they would go in and have a chat with 
the doctor, he was feeling better, and they were going to go to 
bed and he said he would take some more medicine. Mrs. 
Milen went to fix his medicine but he refused to permit her; 
he said he knew better how to fix the medicine, and the Milens 
said to him that if he wanted anything in the night to call 
them, and he replied, "No," that if he needed anything he 
would ring the bell for Maria. There was a small bell on the 
mantel which Laura picked up and rang it and asked him if 
he meant that bell; he answered, "No, the bell in the hall- 
way." Dr. James died at about half-past 11 and his body 
remained in the position described until 1 o'clock. A doctor 
came in and promised to send an undertaker. Somebody 
pa.ssed the remark that the undertaker was very slow in com- 
ing and Mrs. Milen thereupon said, "We can't do anything — 
we are only strangers in the house," but afterward she sent 
Lulu to call another undertaker and he came after the one the 
doctor had sent. The undertaker that came first laid the 
corpse out in the front room and he sent all of the ladies into 
the bedroom. He removed the purses and what personal ef- 
fects the deceased had in his pockets. There were three or 
four purses; there was a diamond ring, a pocket-knife, and a 
few small articles. The undertaker passed those articles to 
Miss Maria Mangan and she tied them up in a handkerchief 
and gave them to Miss Coon to hold while Maria locked up the 



Estate of James. 163 

desk. Miss Coon kept them for the night and returned them 
to Maria the next morning when she was going to work. 
While the ladies were in the bedroom Mrs. Milen sent Lnlu to 
send a telegram to Dr. Milen that Dr. James was dead. Lulu 
went and returned and said that she had written, "Papa, Dr. 
James is dead. Come. ' ' Mrs. Milen wanted to know why she 
said "Come," since he would know best what to do — maybe he 
would want them to come down there. Lulu said that the 
telegram w^ould not go until 8 o'clock next morning and she 
went back that night and changed the telegram to, "Papa, 
Dr. James is dead." When Lulu came back Miss Coon heard 
her tell what she had done. On that night the ladies talked a 
good deal about Dr. James; Laura said nothing about him; 
her sister, Mrs. Lulu Diekman, was talking about what a dear 
friend the doctor was to them and how much he thought of 
Jessie and Laura. There was no shedding tears. Miss Coon 
was not present at the funeral nor when the body was re- 
moved from the house to the hearse ; she was at her work ; she 
left the house on the 26th of February, 1895 ; she never saw 
Dr. James and Laura together. 

Miss Maria Mangan, at the time of the trial and of taking 
her deposition Mrs. Davis, having become a married woman 
since the death of Dr. James, lived in his house, 925 Howard 
street, on the 28th of January, 1895, and had been his house- 
keeper for tw^o years and three months prior to his death, and 
had been intimately acquainted with him. On the date specified 
there were living in that house Mr. and Mrs. Biro, Mr. O'Neill, 
Mr. Ott, Mamie Dalton, Katie Dalton, Vica Coon, the Milen 
family and Mr. Diekman. The IMilens came about the 13th or 
14th of December, 1894. The members of the Milen family 
were Dr. and Mrs. Milen, Miss Laura Milen, and Mrs. Lulu 
Diekman. Miss Maria Mangan conversed with Dr. James 
every day about business and family matters; he spoke of the 
Milen family to her on several occasions; he spoke to her the 
Sunday before he died ; he said that Laura Milen had gone up 
to Market street and he had invited them to dinner, and he 
told Maria to wait and put the dinner in the oven until Laura 
returned. Maria had prepared the dinner and he told her to 
wait until Laura's return. Dr. James did not tell Maria if 
anyone but Laura was to be his guest on that occasion. She 



164 Coffey's Probate Decisions, Vol. 3. 

did not know of his ever having made presents to any of the 
Milen family. She heard him speak of Laura on several oc- 
casions; he said he was treating her for catarrh. Dr. James 
was a close man ; Maria thought him a close man because he 
sold some of his deceased wife's clothes to a Mrs. Bissen and 
he wanted to sell Maria herself some of those clothes. He 
spoke of Miss Laura Milen as * ' Laura ' ' — ' * just Laura. ' ' Maria 
Mangan never knew of Laura and Dr. James occupying the 
same room together. Maria took care of the rooms and was 
housekeeper and cook — general utility. She never heard Dr. 
James introduce Laura to anybody. The Milens occupied a 
front room on the first floor. Dr. James occupied all the lower 
floor but this room. He dined in the dining-room ; that was 
between the kitchen and the bedroom on the first floor. On 
that floor were the kitchen, the dining-room, his bedroom, of- 
fice, parlor and the room occupied by the Milens. His office 
was the back parlor. He usually dined alone. Maria cooked 
for him all the time for two years and three months until he 
died. Maria Mangan knew Dr. Terry. She saw him come to 
Dr. James' house sometime before the latter 's death. She 
saw Dr. Terry also after that event. Dr. Terry said that 
Laura IMilen was Mrs. James and of course Maria would be a 
witness in the case and Laura would see to her yet. Dr. Terry 
said to Maria, "She will see that you will be all right." Dr. 
James died in his office on the 28th of January, 1895. He had 
been sick since the morning before he died. He was at- 
tended in his last sickness by Maria and Judge Hudson. 
"When Dr. James died there were present Mrs. Milen, Laura 
Milen and Maria Mangan. In the morning of that day, at 
about 7 o'clock, Maria came downstairs to prepare breakfast 
and she knocked at his door and Dr. James opened it. Dr. 
James had a blanket around him and Maria asked him what 
was the matter, and he told her that he was sick since 3 or 4 
o'clock in the morning; he had been taken ill in the night- 
time ; no one was with him ; he was all alone. He told Maria 
that when he was taken sick he went out himself and got a 
bucket of coal and made a fire in his office. Dr. James was 
quite sick; he walked around the floor all day; he ate some 
toast, and in his office about 5 o'clock he ate some rice and 
milk. Maria was with him occasionally and Judge Hudson 



Estate of James. 165 

was with him two or three times. He died between 11 and 12 
o'clock that night. Maria sat up with the corpse that night. 
Mrs. Milen, Miss Laura Milen, Miss Mamie Dalton, and Miss 
Vica Coon sat up until 3 o'clock in the morning; Mrs. Dick- 
man was there also. IMaria never noticed what condition or 
frame of mind Laura Milen seemed to be in while sitting up 
with the dead. There Avas no lamentation from anyone. 
Nothing was said that night about the relations between Laura 
and James, but the next day IMaria heard Mrs. Dickman say 
in presence of Laura that the latter was engaged to Dr. James 
and that it was too bad he died as he would soon have been 
married to Laura. On the morning before Dr. James was 
buried Mrs. Milen said in the presence of Laura that Laura 
was engaged to Dr. James and that she was wearing her en- 
gagement ring; this remark was made in Mrs. Milen 's bed- 
room. Maria Mangan never heard Laura say aught about 
her relations with Dr. James. After the death of Dr. James 
the public administrator took possession of the place the next 
morning and opened the desk of the deceased. He looked over 
the private papers and took away a bankbook and some jewelry 
that was there. The corpse remained in the house from Mon- 
day night until Thursday. Dr. James' body was laid out in 
the front parlor. People were in and out all the time. Two 
men came from the undertaker's and remained with the corpse 
two nights. Dr. James kept his letters and private papers in 
his desk in his office or back parlor. While the body was laid 
out the intervening doors were open ; anyone could pass in and 
out. After the funeral Maria Mangan took possession of the 
house at the instance of the administrator. The connecting 
doors and other doors were then locked and the keys given to 
her. There was a piano in the front parlor ; it belonged to the 
Milens. Sometime after the death of Dr. James — how long 
Maria could not remember — Mrs. Milen entered the parlors. 
She had a trunk in there and asked Maria for the keys; this 
was before the twenty-fifth day of March, 1895; it was be- 
fore Mr. Shadburne went there with General Hart to examine 
the papers. Maria Mangan made up the beds every morning 
for Dr. James, and during the last two months of his life did 
not know of anyone sleeping with him. He always took his 
dinners at home. He never dined out but once; he ate alone 



166 Coffey's Probate Decisions, Vol. 3. 

every morning. Maria never cooked any breakfast that Dr. 
James and Laura ate together, and Maria cooked every break- 
fast during the two years and three mouths she was with him. 
If anybody in that household was in a position to know the 
facts of the occurrences therein, it should seem that person was 
this faithful servant, Maria, who made the beds, prepared the 
meals, cleaned the rooms, built the fires, and performed all the 
dom.estic drudgery of the establishment, and was also the re- 
cipient of his confidences as to business and family affairs. 
She was his housekeeper and maid of all work, and intimately 
acquainted with him ; conversed with him every day ; had con- 
trol of his menage and never heard of this marriage. 

The local life history of the deceased is perhaps best epito- 
mized from the testimony of George Hudson, a somewhat 
venerable attorney at law, who once occupied a judicial posi- 
tion in the early times of San Francisco, and has been since, ac- 
customed as the citizens and natives are to such honorary titles, 
commonly called "Judge" Hudson. This gentlemen so titu- 
larly distinguished had the longest continuous acquaintance 
with the deceased of anyone who appeared as a witness in this 
contest. We have already referred to his testimony as to what 
occurred before his eyes at the time of the funeral and im- 
mediately preceding, and we shall now revert to his narrative 
to make the connection complete ; Judge Hudson first made 
the acquaintance of Charles A. James in 1854 ; Hudson was 
then about thirty years of age and James a youth of about 
nineteen years and a clerk at the Crescent City Hotel on San- 
some street, and continued in that capacity at the Tremont 
and International. Afterward James went into the real es- 
tate business for several years. Hudson has lived at 226 Fifth 
street, corner of Clementina, for quarter of a century ; he and 
James were intimate. Hudson knew the first wife of James; 
she died in 1891. He conversed with James often about his 
condition in life ; they exchanged confidences. After an inter- 
view he had with Dr. James in the latter part of December, 
1894, Hudson used to see him very frequently. James visited 
Hudson up to the 20th of January, 1895, almost daily. The 
next time when he talked with him about his condition in life 
and the subject of marriage was a w-eek before Dr. James died, 
on Monday or Tuesday, January 20 or 21, 1895, Hudson had 



Estate of James. 167 

occasion to call to see James at his house, 925 Howard street, 
as he wanted to call upon Dr. Nusbaura, a physician, who had 
attended Hudson in his illness, to try to settle a disputed bill. 
It appears that Dr. Nusbaum had presented Hudson with a 
large bill for medical attendance and Hudson wanted James 
to negotiate a settlement ; hence the visit of Hudson to Dr. 
James to act as an amicable intermediary. Hudson found Dr. 
James in his rear parlor as usual. Hudson had been there but 
a few minutes when he heard some one playing a piano in the 
front room and he asked who was playing. James told him 
that it was a Miss Laura Milen ; the intervening doors were 
closed. Hudson said to James, "Why, I know a Miss Laura 
Milen!" James said, "Do you?" Hudson answered, "Yes, 
I have known her for some time ; if you will speak to her, I 
should like to see her." He had no objections, and, opening 
the folding doors, brought Miss Milen out and said, "Judge, 
this is Miss Laura Milen." Hudson said, "Yes, I know Miss 
Laura Milen very well." This was on the Monday or Tues- 
day hefore Dr. James died; that would be the 21st or 22d of 
January, 1895. Hudson shook hands with Laura and asked 
her about her family and had a few moments' conversation 
with her. When she retired from the room Dr. James told 
Hudson that the Milen family consisted of Dr. Milen and Mrs. 
Milen and two daughters ; that they came to his house and en- 
gaged rooms about the 13th or 14th of December, 1894 ; that 
Dr. Milen was an itinerant physician, traveling about the coun- 
try; that Lulu was married to a man named Dickman, who 
was worthless. Dr. James said that he had rented the Dick- 
mans rooms on the third floor at six dollars a month, and, 
that he had rented the hall bedroom to Dr. Milen, and Mrs. ' 
Milen and Laura occupied it when Dr. Milen was absent; it 
was rented at $10 per month. Dr. James feared they would 
not pay him his rent; he said they were very poor; he said 
they were strangers to him and had been there a month at 
that time. Hudson had met the whole Milen family the first 
3'ear that they were living in San Francisco on Ellis street — 
321. By reason of an advertisement Hudson was attracted to 
Dr. Milen. Milen advertised that he could cure the opium and 
liquor habit. Hudson had a lady friend whom he wanted 
cured and arranged with Milen to treat her. During that 



168 Coffey's Probate Decisions, Vol. 3. 

time Hudson met Mrs. Milen and had a conversation about a 
book she was then writing entitled, "Was He to Blame?" 
Mrs. Milen told Hudson that she was writing this book and she 
wanted his lady friend to assist in copying the manuscript, as 
his friend wrote a better hand than Miss Laura Milen did. 
Hudson had his friend so engaged for two days and nights 
while she was absent from his home where she was staying; 
this lady friend was sojourning at Hudson's home. After 
the Monday or Tuesday preceding Dr. James' death, when 
Miss Laura Milen was presented to him as related, Hudson 
next saw James the same week, either on Thursday or Fri- 
day night. James came to Hudson's house in the evening and 
informed him that he had seen Dr. Nusbaum, but no definite 
arrangement had been made ; that he was to see him again the 
next day. Hudson went to James' house the next day or on 
Saturday but did not see him. Hudson saw ]\Iiss INIangan but 
Dr. James was not at home. Hudson next saw Dr. James on 
the following IMonday morning, January 28, 1895, the day he 
died. Hudson found Dr. James in his rear parlor sitting in 
his large armchair in his shirt sleeves or wath a white night 
shirt or white coat, with a buggy robe thrown around him, 
around his shoulders, sitting near the grate on the right-hand 
side as one entered from the front. Dr. James was very ill; 
it was about 8 o'clock in the morning. Dr. James then told 
Hudson that on that morning, at about 4 o'clock, he was seized 
with a violent chill ; that he was obliged to get up alone and 
make a fire in the grate to heat water to treat himself with ; 
that he had been very ill but at the time he was talking he felt 
somewhat better sitting in his chair. Dr. James was very 
much troubled to talk or to breathe. Hudson reproved Dr. 
James for being alone and having no one to attend to him. 
Dr. James said to Hudson, "I don't believe there is a doctor in 
San Francisco that is as sick as I, who would not have sent 
for a physician," to which Hudson assented, but Dr. James 
said, "I am going to rely upon my medicine." Hudson told 
him that he must certainly get some one to look after him. 
The coalscuttle was empty; the embers were dying in the 
grate ; only the smoldering remains of a fire were there ; not out 
entirely but needed replenishing — altogether a cheerless scene 
on that winter 's morning. No nurse about, no w oman in sight, 



Estate of James. 1G9 

nor anyone to attend to the wants of this sick and solitary old 
man. At that moment when most needed there was certainly 
a lack of woman's nursing and a dearth of woman's angelic 
ministrations. Then and there was the time and the place for 
the young wife to appear and to aid in appeasing the anguish 
and pain of her spouse ; but, if Hudson is to be believed, there 
was no such appeaser about. Dr. James said to Hudson that 
his servant, ]\Iaria IMangan, would be in the room from time to 
time and he did not think he really needed anybody to be there 
to wait upon him all the time. Hudson remained for an hour 
or more. James told him that he had not concluded any posi- 
tive arrangement with Dr. Nusbaum and had not seen him 
since. During the hour Hudson was with James no one came 
into the room. There was a sofa or lounge on the east side of 
the room ; north of the door that entered the room from the 
hall, James had his armchair that he was sitting in ; there were 
one or two chairs in the room. Dr. James' secretar^^ desk was 
on the left of the mantel near the window. Dr. James begged 
Hudson to come around and see him again in the evening. 
Maria Mangan let Hudson into the house on that morning. 
Dr. James told Hudson that Maria was his only servant. In 
the evening Hudson went back to see Dr. James about half- 
past 7 and James was sitting in the same place in the same 
chair, with his robe thrown around him, without any coat on 
him and he was breathing very hard and was very ill. Hud- 
son was there but a short time before Mrs. Jessie Milen came 
into that room from the hall, passed through the room ; as 
she was passing she said, "Miss Laura and I have had tickets 
presented to us for the theater and we are going to the thea- 
ter. " She said never another word, but opened the folding 
doors and went into her own room; this was about Cjuarter to 
8 o'clock. Dr. James then remarked to Hudson, "They are 
going to the theater and will be home about 11 o'clock," and 
presently was heard the sound of two persons going out of 
their room and downstairs. Dr. James then said, "They have 
gone to the theater." Hudson found Dr. James very ill and 
said to him, ' ' Don 't you try to talk ; I will talk to you ' ' — try- 
ing to amuse him. Dr. James said to Hudson during that in- 
terview, "Judge, if anj^thing should happen to me would my 
stepdaughter have anything to do with my estate?" Hudson 



170 Coffey's Probate Decisions^ Vol. 3. 

replied, "No, Dr. James, you have had two settlements with 
that woman and nobody will have anything to do with that 
estate but the executors of your will." Hudson was not his 
attorney and never had been. At this time nobody but the 
two men were present in the room, nor had there been during 
the hour except Mrs. Jessie Milen, who passed through prior 
to her going to the theater as stated. At the interview early 
in the week before he died nothing was said about marriage 
directly, but after Laura left the room Hudson remarked to 
Dr. James, "These young women are sometimes dangerous," to 
which James answered that he had been proof against that for 
a long while. When Hudson was leaving Dr. James on the 
night of the 28th of January, 1895, he talked with him about 
being alone and told him that he thought it was very impru- 
dent ; that there should be somebody with him. Dr. James re- 
plied, "I am not going to sleep to-night; I shall not lie down; 
I can't lie down. I shall sit in this chair all night. " Hudson 
said to him, "I will get somebody to stay with you; you have 
no coal in your scuttle again and your fire is low." James 
responded, "Maria will come into my room at 10 o'clock, be- 
fore she goes to bed, and will see to me. ' ' Hudson left at about 
9 o'clock and never saw James again. The next morning he 
heard of Dr. James' death and went around to 925 Howard 
street quite early. He had not heard of the death until he 
went to the house at about 8 o'clock, and was horrified to see 
crape on the door. Hudson rushed upstairs and found Miss 
Maria Mangan, the clerk for the public administrator, a Mr. 
Cluen, and several other persons, at the secretary in Dr. 
James' office or back parlor. They told him that Dr. James 
had died at 11 o'clock in the night before. The public ad- 
ministrator's clerk was there receiving the personal effects of 
the deceased. Miss Maria Mangan was handing the effects to 
the clerk and he was taking account of what was found upon 
his person or in the secretary or desk of Dr. James. There 
were present Maria Mangan, Cluen, the clerk, and Hudson, 
and some women in the house. Laura Milen, Mrs. Milen, Mrs, 
Diclonan, and Mr. Dickman were not there, no one nor any 
of them was there. The effects found were some thirty or 
forty dollars in money, bank bills and gold, some purses, a 
diamond ring, and some other articles found upon his person. 



Estate of James, 171 

Maria Mangan delivered these in the presence of Hudson to 
Cluen, who was acting for the administrator. Hudson had a 
conversation on that morning with Mrs. Jessie Milen in her 
room, the hall bedroom ; Laura was present. They said it was 
too bad poor Dr. James had died so suddenly. Mrs. Milen 
said to Hudson at that time and place, and in presence of 
Laura, that Dr. James had proposed marriage to Laura ; the 
latter said nothing. After the funeral on Thursday Hudson 
saw Mrs. Jessie Milen at his own residence 226 Fifth street, 
on Saturday afternoon. Mrs. Milen called upon Hudson and 
told him that the diamond which was found upon the person 
of the deceased had been given to her by him a short time be- 
fore he died. She told Hudson that she had been admiring 
the ring very much and remarked how happy she would be if 
she had such a ring, and he said, "If this will make you happy, , 
I don't care for the ring, I will give it to you," and then he 
took it off of his finger and gave it to her. She wore the ring 
for a short time, but on the Saturday before he died, when 
he took her and Laura to the matinee, Mrs. Milen said that 
she could not wear her glove with that ring on and she took it 
off and gave it to him, and he put it in his pocket and never 
returned it. Mrs. Milen wanted to know from Hudson how 
she could obtain that ring from the administrator. He gave 
her some advice as to the mode of proving the fact of the pres- 
ent. Hudson saw Mrs. Milen again two or three days after 
that Saturday. He called at the James residence to see Maria 
Mangan to find out what was going on. He went into Mrs. 
Milen 's room and inquired of her if she had found anybody 
to sustain her story about the ring. She then told him that a 
doctor and his wife had called to see the deceased just before 
he died and James had told them that he presented this ring 
to Mrs. Milen. Laura was present when Mrs. Milen made this 
statement, and at the same time Mrs. Milen told Hudson that 
Laura was engaged to be married to Dr. James before he died ; 
she said they were engaged. Hudson frequently thereafter 
called at that house. On or about the 12th or 13th of Feb- 
ruary, 1895, at the same place he had an interview with Mrs. 
Milen, and she said that the administrator was going to allow 
them to remain in their rooms and that Laura was married to 
Dr. James before he died. That was the first intelligence Hud- 



172 Coffey's Probate Decisions, Vol. 3. 

son had received of that interesting fact ; up to that communi- 
cation as made by Mrs. Milen he had no information or 
intimation of anything of the kind. 

Mrs. Mary Gallagher, formerly Mamie Dalton, roomed in 
Dr. James' house, 925 Howard street, at the date of his death 
and for some time previous to that event. She was not in the 
room at the moment he expired but shortly after. Mamie Dal- 
ton, Vica Coon and Maria Mangan were upstairs in their beds 
when the bell rang, and in response they all came down to- 
gether and found the doctor dead, and Mrs. Milen, Laura and 
Mrs. Diekman were there in the room. Mrs. Milen said that 
she and Laura had just returned from the theater and asked 
the doctor if there was anything he wanted and he said, "No," 
that if he wanted anything he had told Maria he would ring 
the bell, and with that Laura took a small bell from the mantel 
and rang and the three girls came down. Mrs. Milen told the 
undertaker that they were perfect strangers and that the doc- 
tor had no relatives here. Mrs. Diekman told Mamie Dalton, 
this witness, that it was too bad the doctor had died as he was 
engaged to her sister; Laura was not present at this remark. 

IMrs. Annie Carter saw Dr. James three days before he died ; 
she called at his house to see her sister, IMamie Dalton. Dr. 
James opened the door and as she entered she heard a piano 
playing in the parlor and said, "Doctor, I thought you had 
sold your piano." He said that he had but that it was Laura 
Milen who was playing ; that as Laura had not space enough in 
her room for the piano he allowed her to move it into the par- 
lor. Mrs. Carter was formerly a roomer in the James house 
but left on October 9, 1894, and was married from there Octo- 
ber 10, 1894. Mrs. Carter had seen Laura Milen on a previous 
occasion to that testified to as to the incident of the piano 
playing. About nine days before the doctor died she had seen 
Laura passing through the hall in a low-necked dress and she 
remarked that the girl was finely dressed for a person who oc- 
cupied but one room; he said, "Yes, and could not pay their 
rent at that." 

Among those present at the time of the funeral of Dr. 
James was Newell "Winants, an old friend, who had been ac- 
quainted with him since about 1865, when James was clerk for 
F. E. Weygant, proprietor of the Tremont House, on Jackson 



Estate of James. 173 

street east of Montgomery ; from 1889 Winants was very inti- 
mate with James. For a time James had a real estate office on 
the northeast corner of Montgomery and California streets. In 
1889 he had a catarrh medicine, and manufacturing and vend- 
ing that article and trading in real estate was about all his 
occupation. Dr. James and Winants were very intimate from 
that year until the end of the doctor's life. Dr. James was at 
the house of Winants on the second or third Sunday before 
his death at 2 or 3 o'clock in the afternoon. Winants and 
James had a general conversation for an hour or two on that 
occasion in which he put the question to James, "Why don't 
you get married ? ' ' James answered that he would not marry 
the best woman in the world, that he had no use for a wife, 
that his time was taken up with the study of medicine, and 
that he had passed the period of procreation for a long time. 
Winants asked Dr. James if he had his house full, and he said 
he had rented some rooms to a family about whom he did not 
know much. James did not mention their names. Winants 
was present at the funeral and saw there Maria INIangan and 
Judge Hudson and a lady in the back room with two children 
and two other ladies. Winants asked Maria who these two 
ladies were, and she said they were the people upstairs, and 
that the woman with the two children was not a tenant but was 
a friend of the deceased doctor. If Winants tells the truth. 
Dr. James was a dissimulator without apparent motive ; there 
was no appreciable reason for lying. 

Why James should have been so effusively communicative 
to the Terrys about his marriage and prospective paternity and 
about the same time conceal from old and confidential friends 
of more than thirty years' acquaintance these facts, and go 
further and give as a reason why he did not marry his im- 
potency, is a proposition that is sought to be answered by the 
result of a solution of sophistry that attempts on the one hand 
to prove this marriage by circumstances of publicity', such as 
street introductions and the like, and on the other hand en- 
deavors to destroy the effect of the doctor's denial by claiming 
that the "time, disposition, and circumstances of this case did 
not permit, nor was it necessary for Charles A. James to pro- 
claim his marriage from the housetops, at the corners of the 
streets, or in the newspapers; the laws did not require it nor 



174 Coffey's Probate Decisions, Vol. 3. 

did the good of society demand it." This is an extract from 
the very able argument of Mr. George W. Fox, whose adroit 
presentation of his ease may be alluded to without invidious 
-comparison to his associates, to whose views we have given ade- 
quate attention in the course of this opinion. Mr. Fox, in the 
passage quoted, says it was not necessary for the decedent to 
proclaim his marriage "at the corners of the streets," and yet 
he sturdily and strenuously insists on, as proof of a public 
proclamation, an introduction by Charles A. James of claimant 
as his wife to George Williams and John Bigley near the 
"corner of the street," on Howard street, near Fifth, in Jan- 
uary, 1895 ! Public introduction and recognition ! Miss Mary 
Vinnott was a dressmaker at 440 Clementina street, where she 
lived ; she did some work in her line for Mrs. Milen ; she had 
known Miss Milen and Mrs. Diekman since New Year's Day, 
1895, and Mrs. Milen since a week after that day. Miss Vin- 
nott was in the house at 925 Howard street on the night that 
Dr. James died ; as to how she came to be there she relates that 
she was in the drugstore when Mr. Diekman came in and an- 
nounced the fact and she went up there. Mrs. Milen and Miss 
Milen were there. Laura said, with a smile, that she would 
never forget the face that the doctor made as he died. Mrs. 
Milen said as she got up and walked toward the closet, "Laura, 
it would have been all right if you had married him ; you would 
have all the property." Mrs. i\Iilen told Miss Vinnott once 
that Laura might have married Dr. James but she preferred a 
strolling actor. On the night of the death of Dr. James, when 
Miss Vinnott was there, there were four ladies present — Miss 
Maria Mangan, Mrs. Diekman, Miss Laura Milen, and Mrs. 
Milen. Miss Vinnott sat on a lounge near the fireplace. When 
Mrs. Milen made the remark Laura was present ; it was in the 
back parlor after the undertaker had gone away; it was about 
2 o'clock in the morning. Miss Vinnott remained until 5 
o'clock in the morning. Laura once said to Miss Vinnott at 
her house, while Mrs. Milen was present, that she could marry 
JDr. James but she did not care to as she only wanted the 
tlvings. She had made a wine-colored dress for Laura and a 
couple of wrappers for Mrs. Milen. At the time of these con- 
versations at her place Miss Vinnott was making a black silk 
dress for Mrs. Milen. There was in Miss Vinnott 's establish- 



Estate op James. 175 

ment at this time a young lady operative, Miss Ella Sullivan. 
The rooms of Miss Vinnott were then at 931 Howard street, 
near the James house. Miss Sullivan was there engaged in 
her occupation about a week before Dr. James died and a con- 
versation occurred in which the participants were Mrs. Milen, 
Laura Milen, Miss Vinnott, and Miss Sullivan ; the latter two 
ladies M-ere then engaged in making over a wine-colored dress 
for Laura Milen. While the four were talking, looking out of 
the window, Dr. James was observed passing by, and Mrs. 
Milen remarked, "There goes Dr. James. Laura might easily 
marry him, but she prefers a strolling actor. I would 'pull 
his leg,' but Laura will not work with me." The expres- 
sion "pulling his leg," Miss Sullivan explained as meaning to 
coax or wheedle his wealth out of him. About three days be- 
fore the death of Dr. James — which would be about the 24th 
or 25th of January, 1895, on a Thursday or Friday — Miss Sul- 
livan went to Mrs. ]\Iilen's room to hook on a dress, at about 
half -past 5 o'clock, as she was going to dinner with Dr. James. 
While Miss Sullivan was engaged in the hooking Laura came 
in and Mrs. Milen said to her, "Let us blow the old man in 
for theater tickets and a supper," and Laura said she would 
try. It is proper, in this connection, to observe that Mrs. 
Milen denies the accuracy of this detail and testifies in rebuttal 
that she received the black silk dress which Miss Vinnott made 
on January 5, 1895, and that Miss Sullivan fitted or buttoned 
that dress upon her about 5 o'clock on that day. Mrs. Milen 
was positive that it was that day, because Dr. James and Laura 
went to the matinee on that day, and Mrs. Milen did not go 
because Laura had her new dress finished and as Mrs. Milen 
did not have her dress ready she would not go. Claimant's 
counsel think that Miss Sullivan must have mistaken Mrs. 
Dickman for Laura. 

John O'Neill was a roomer in the house of Dr. James. He 
was very familiar with the deceased and they conversed fre- 
quently in the evenings, sometimes from 7 to 10 o'clock in the 
evening. Two weeks before James died O'Neill had a con- 
versation with him and remarked that he must be lonely since 
he had lost his wife, whom O'Neill had known. Dr. James 
replied that he was going to sell out there and move down 
town into a private hotel. 'Neill was in the house when Dr 



176 Coffey's Probate Decisions, Vol. 3. 

James' wife died and he was there when the doctor himself 
died. He was there when the body was laid out by the under- 
taker. O'Neill was aroused by Maria Mangan at about 9 
o'clock in the morning and told that Dr. James was dead. 
O'Neill arose and after attiring himself descended the stairs to 
the rooms of Dr. James, and there observed the undertaker 
proceeding to prepare the body for sepulture and heard him 
direct the ladies to retire into the rear apartment, whither they 
went accompanied by O'Neill, although the undertaker re- 
quested him to remain, but he declined to accede to this 
request. One of the ladies was Mrs. Milen, he could not re- 
member whether Laura was one, Maria Mangan and Miss Coon 
were two of them, and perhaps one or two others. He did 
not hear anyone say, ' ' Oh, my poor husband ! " 'Neill never 
heard that the young lady claimant here was married until 
after the death of Dr. James, when Maria told him that Laura 
claimed to be his widow. There had been a piano in the rear 
parlor during the lifetime of Mrs. Susan K. James but after 
her death it w^as removed into the front room. 'Neill did not 
know whether it was the same piano. The date of the death 
of Dr. James was the 28th of January, 1895. O'Neill is a 
painter by trade — industrious, intelligent, uninterested. 

Alphonse Astorg, a butcher at 108 Fifth street knew the 
deceased for about fifteen years before his death. Dr. James 
w^as a customer and used frequently to talk with Astorg, when 
the butcher was not busy, for fifteen or twenty minutes at a 
time. Astorg used to sell his medicine by the bottle; he 
never visited the house of Dr. James. Astorg was not deal- 
ing in mineral waters at that time. Astorg had a talk with 
Dr. James on the Saturday prior to his death, which would 
have been January 26, 1895, at about 9 or 10 o'clock in the 
evening. Astorg asked James why he did not get married. 
James said, "No marriage for me." Dr. James said that he 
was sick, had kidney disease, bladder trouble, dropsy. Dr. 
James had come into the shop of the butcher to buy meat 
and Astorg joked with him because he had seen him walking 
with a lady that afternoon, and remarked to Dr. James that 
he was quite a young man, and the doctor said that he had 
been at the matinee with the lady. 



Estate op James. 177 

Mrs. Sarah Jane Williams knew the deceased since 1870; 
saw him very often in the latter years of his life. Dr. James 
used to call at Judge Hudson's house, where she was sojourn- 
ing, and she used to open the door for him and let him in. 
She conversed with him frequently and freely. The last time 
he called she alluded to his long absence and she said to him. 
"The judge and I have been talking about you; we did not 
know whether you were sick or off getting married as young 
boys of your age are apt to do." Dr. James answered that 
he was not sick and had not been getting married, as he had 
had enough of that. The next time she saw him he was 
dead. She was at the house and heard no exclamation of 
mourning there at time of funeral or at the grave. Dr. 
James had told Mrs. Williams that he had dropsy, bladder 
trouble, and Bright 's disease. 

That Dr. James was and had been for some time in poor 
physical condition is clear from this testimony, if it be truth- 
ful. He had several ailments — dropsy, asthma, catarrh, 
bladder afit'ection, kidney trouble, Bright 's disease; many 
maladies conspiring to the collapse that occurred. He told 
Dr. A. Nusbaum on Thursday of the week before he died that 
he had anasarca, which is defined as a dropsical afl^ection of 
the cellular tissue, and Bright 's disease, an organic affection 
of the kidneys which does its work of destruction by induc- 
ing other diseases, and the effect of this disease i^ impotency 
in such a case as that of Dr. James, according to Dr. Nus- 
baum. 

Patrick Lawlor, a grocer on the same block, saw Dr. James 
at 8 o'clock on the morning of the day of his death. Lawlor 
was accustomed to buy medicine of Dr. James, and on that 
day, at the hour indicated, he went to the doctor's office 
apartment and found him sitting in front of the fireplace 
alone; no one was with him. Dr. James said that he was 
deathly sick ; he had been sick all night. He thought he had 
eaten too much on the night before. The last previous occa- 
sion on which Lawlor conversed with Dr. James was the 
Thursday prior, when he told him he had a young lady under 
treatment. Joseph McGrath kept a store for groceries and 
varieties at 9211/2 Howard street at and before the time of 
the death of Dr. James, and he was acquainted with the 

Prob. Dec, Vol. Ill — 12 



178 Coffey's Probate Decisions, Vol. 3. 

members of the Milen famih\ They were all customers; he 
did not visit them in a social way, but he called at the house 
on business account. He knew Dr. James for about six 
months before he died; he was acquainted with him in the 
same manner as with the Milens. Mr. McGrath knew Dr. 
James longer than he did the Milens. James died about the 
28th of January, 1895. His death was sudden. In talking 
to Mr. McGrath the day after the funeral concerning the ac- 
counts of Mrs. Dickman and Miss Laura INIilen, Mrs. ]\Iilen 

' advised him to be careful about these two accounts, not to 
get them mixed up. Mrs. Milen told McGrath that she had 
two daughters; that one was single and one was married — 
Miss Laura Milen and Mrs. Dickman — and that the latter 's 
husband would have to be liable for his wife's account and 
that she, Mrs. Milen, would be answerable for Laura's ac- 
count. On several different occasions for two weeks there- 
after Mrs. ]\Iilen told Mr. McGrath at his store that Laura 
had been engaged to James, and that it was too bad that he 
did not live a while longer and she would have got his estate. 
After the funeral, when Laura came to the store of McGrath, 
she also mentioned that she was engaged to Dr. James. Mrs. 
Dickman several times said the same to him. Edward F. 
Cluen testified that in his capacity as clerk for the public ad- 

' ministrator he went to the house of deceased immediately 
upon hearing of the event, and sealed the desk and put the 
official seal over the keyhole. Mr. Cluen examined the desk 
thoroughly, looking for a will. He did not remember seeing 
any loose sheets of writing paper nor the envelope marked in 
print "P. M. James." After examining the contents of the 
desk he shut it up and put his official seal thereon. Subse- 
quently, on a second visit, in the presence of General Hart, 
Mr. Shadburne, Mrs. Milen, and the petitioner Laura, the 
desk was opened and the document here in question discov- 
ered. General Hart searched the desk on the second visit 
and found the envelope marked "P. M. James," and took 
out of it the contract. Evidently the superficial search was 
superior to the thorough examination. 

William J. Herrin, an attorney at law and until lately a 
partner in the firm of Shadburne & Herrin, visited the 
house, 925 Howard street, on the second day of February, 



Estate op James. 179 

1895, at the request of Mr. Shadbiirne, to ascertain if de- 
ceased left a will and also to secure information as to the 
existence and whereabouts of heirs. Mr. Herrin went with 
Cluen, the clerk for the administrator. He examined all the 
letters in the desk and found no will there or in the bureau 
or chiffonier. Mr. Herrin found some letters from P. M. 
James and Mattie. He found no paper purporting to be a 
marriage contract; but afterward, when General Hart exam- 
ined the same desk, he had no difficulty in discovering the 
identical document in an envelope marked "P. M. James"; 
although Mr. Herrin swears that he examined all the letters 
in that receptacle. It is a common experience in life that 
the ability to find anything depends upon the knoAvledge of 
what one is looking for, and so it is illustrated in this item 
of comparative evidence ; General Hart knew what he wanted 
and where it ought to be deposited and found it right there, 
while Mr. Herrin had upon his visit been prospecting for a 
will in utter ignorance of the claim of a marriage contract, 
of which there were at that time — February 2, 1895 — no 
outcroppings. It was a hidden treasure, but "man's industry 
searcheth out many things," and it is recorded in the Book 
of Job, with which counsel are familiar, that "there is a vein 
for the silver; and a place for the gold where they fine it," 
and so the industry of man and his power of penetration may 
find a vein of marriage contracts undiscemible to others. 

On February 21, 1895, when the petition of the public 
administrator for letters of general administration was heard 
and granted, the claimant here was present in court but made 
no application for letters on her own behalf and made no oppo- 
sition to the claim of the public officer. She was sworn and 
examined as a witness on that occasion, and testified that the 
contract was drawn up and both signed it in the presence of 
each other, and then Dr. James took the document and placed 
it in his desk ; that transaction took place on the 6th of Janu- 
ary, 1895, and subsequently she had not seen the paper. 
This was the story she told in this court on the 21st of Feb- 
ruary, 1895, but on the 9th of IMarch, 1897, although she says 
she cannot recall exactly what she testified on the first date, 
she distinctly denies that she made the sworn statem.ent im- 
puted to her; and yet again, after further examination, upon 



100 Coffey's Probate Decisions, Vol. 3. 

the last date, March 9, 1897, in answer to cross-question, she 
qualifies her distinct and downright denial by saying that 
when she was asked if she remembered and answered as she 
had done to her own counsel she meant that she could not 
recall exactly but that she does know at the present time 
what she knew on the 21st of February, 1895, to this extent. 
What was done with the contract she does not know, but after 
the paper was signed Dr. James took it up and put it in his 
pocket and said he would wear it next to his heart, and when 
Mrs. Milen came home he showed it to her. The contract was 
not put there in the drawers of his desk until after Mrs. 
Milen had come home; she will not saj^ positively that he 
put it back in his pocket. With this qualification made upon 
her final cross-examination claimant said the statement of 
February 21, 1895, was correct. 

In view of this testimony it may well be asked, When and 
how came into the desk of the deceased this document? The 
claimant swore with the utmost particularity and precision on 
the 10th of December, 1896, in the trial of this cause, that on 
the sixth day of January, 1895, after the paper-writing was 
completed and signed, James said to her that she was now his 
wife, and "then he took the paper and tore it off the tablet 
and put it in his pocket, and said that he w^as going to carry 
that next to his heart; he placed it in his pocket on the left- 
hand side," she did not remember whether it w^as his vest 
or coat pocket, but "he must have put it in his vest pocket." 
This is straight, direct, positive and absolutely at variance 
with the testimonj^ given by her on February 21, 1895, when 
she swore that when the contract was drawn up and signed, 
"then Dr. James took the document and placed it in his desk." 
When this contrariety of statement is brought home to her 
and established on the ninth day of jNIarch, 1897, she makes a 
lame and impotent attempt to reconcile the conflicting ele- 
ments of her evidence. Plainly, there is a screw loose some- 
where. On the 21st of February, 1895, about forty-five days 
after the making of this alleged contract, when the facts 
must have been fresh in her memory, she solemnly swears that 
the deceased spouse placed this precious paper in his desk. 
She had kno^\^^ nothing of such contracts before, neither had 
her father nor her stepmother. Sueh an anomalous sort of 



Estate of James. 181 

ceremony was repugnant to the old-fashioned Methndistieal 
ideas which came down from her ancestors, who would have 
rigidly insisted upon a parson and a certificate, and have 
taken care that the certificate M-as placed where it would be 
preserved for the protection of the honor and rights of the 
wife in the event of any question such as has arisen in this 
case. But bating any allusion to the facility with which this 
young woman agreed to this manner of marriage, it is more 
than passing strange that she should have so easily yielded up 
this sole muniment of her title to the sacred name of wife. It 
has been finely said that in the conduct of life, "we cannot 
spare the coarsest muniment of virtue," but we have a docu- 
ment here that constitutes the very highest and most valuable 
possession that a woman can hold to prove that she is a virtu- 
ous wife ard her child pure progeny, and yet, instead of re- 
taining it to protect herself and the possible issue of the 
marriage, she surrenders it to him, who may, if he choose, 
destroy it, or whose heirs may come and, through its loss 
or disproof, cancel her claims to honest wifehood and righteous 
maternity. "It is to be presumed that such contracts are 
made for the woman's protection; but here the order seems 
to have been reversed and the man procured the evidence of 
marriage and securely locked it in his desk for his own pro- 
tection." If she told the truth on February 21, 1895, this is 
what Dr. James did; but if we are to believe her now, he 
placed it in his vest pocket, left-hand side, where he was going 
to carry it next to his heart, and with this safe deposit she 
seems to have been content. 

Counsel for claimant argue that the marriage by contract 
and consummation and circumstances having been established, 
the child is presumed to be legitimate, the husband's potency 
having been demonstrated; "but if for any reason this court 
should hold that the alleged marriage contract is invalid or 
not proved, nevertheless the child is entitled to inherit under 
the code": Civ. Code, sec. 1387; Graham v. Bennett, 2 Cal. 
503. 

The issue of a wife cohabiting with her husband, who is not 
impotent, is indisputably presumed to be legitimate: Code 
Civ. Proc, sec. 1962, subd. 5. Counsel claim that the infant 
Theodore is the son of Charles A. James, bom in lawful 



182 Coffey's Probate Decisions, Vol. 3. 

wedlock; but if the court find the marriage contract null and 
void, then the infant is entitled to inherit the whole of the 
estate under the provision of the Civil Code, which declares 
that "the issue of all marriages null and void at law are 
legitimate." Clearly, the counsel deserve commendation for 
their cleverness, for they have provided two strings for their 
bow. If marriage be not proved, and they ingenuously cast 
the burden of disproof upon the respondent, at all events they 
have shown that the claimant gave birth to a child who, like 
the early rose in the poem, "antedated its mission in an un- 
prepared season"; and, by presumption of law and medical 
opinions and direct evidence, they make of this unseasoned 
babe the spine and marrow, the very pith and sinew, of their 
case. 

It is claimed that Dr. James was the father of this child, 
because claimant testifies that he was its carnal cause and her 
testimony is truthful; but if the infant was not delivered in 
normal time, if the birth occurred in advance of the usual 
period of gestation, which is nine months or from two hun- 
dred and seventy-five to two hundred and eighty days, then 
if James was the father, the conception having been on the 
6th of January and the birth on the 16th of September, 1895, 
the babe was brought forth prematurely, in eight months and 
a third instead of nine calendar months, according to the 
highest authorities, the proper term; and to support this 
theory Dr. Walton Preston testified that he attended the lady 
and delivered her, with instruments, of a seven pounds child, 
and that he noticed that the infant had undeveloped finger and 
toe nails, abbreviated and attenuated nails, which indicated 
that the complete limit had not elapsed. This item of the 
shortened nails signified that the babe had been sent "un- 
finished before its time into this breathing world." In no 
other respect was it curtailed of nature's fair proportions; 
the child was as healthy as the average child, and the trained 
nurse, Miss Mary Adelaide Waterman, a very intelligent 
M-oman, one who observes facts and reports them to the attend- 
ing physician, saw nothing beyond these slightly undeveloped 
nails to indicate a premature birth. Miss Waterman said, 
"The nails indicated a slightly premature birth"; it was her 
duty as nurse and she did observe such details and call them 



Estate op James. 183 

to the doctor's notice. The babe was born at 10:45 o'clock 
in the morning of the 16th of September, 1895, and weighed 
seven and three-quarter pounds ; the child still lives. 

The child still lives, and upon this question of the vitality 
and continued health of this infant, as affecting the proposi- 
tion of its being born in full time, we have some medical 
testimony. Dr. Preston says that the idea that an eight 
months' child is less likely to live than one born in seven 
months is exploded. Dr. Frederick Walter Harris says that 
the consequence of conception immediately after menstruation 
is premature birth. A seven months' child has no advantage 
over an eight months. When we find a fact we generally 
look for a cause, and medical men when they can find no other 
assignable cause would accept the lack of development of 
nails as a sign of premature birth. Doctor Harris has known 
eight months' children who lived. The usual period of gesta- 
tion is forty weeks; the ordinary period is two hundred and 
seventy da^'s, according to this doctor's experience of twenty 
years, in which he has had four instances of actual observa- 
tion of gestation and has devoted much time to the study of 
the theory. In the case put to him Dr. Harris said the child 
would be a weakling from the beginning. Dr. John Leffler, 
"a physician of the old and only school," allopathy, per- 
formed an operation on the claimant on May 24, 1896, at 925 
Howard street, in presence of Dr. Preston, Dr. Cox, and 
another doctor. Dr. Lefifler was called in by Dr. Preston to 
assist him ; it was a case of laceration of perineum. The Ger- 
man calculation of the period of gestation is two hundred and 
seventy-six or two hundred and seventy-eight days. No reason 
is assigned why German gestation should differ from any 
other, and it may safely be assumed that nature develops 
her processes alike here and there. 

Dr. John F. Dillon practices in a fertile district, as appears 
from his testimony, for in the course of three years he has 
had about one thousand cases in obstetrics, averaging more 
than one case a day, excluding Sundays, for it is supposable 
that this bright and energetic young doctor (who belongs also 
to "the old and only school") had an occasional Sunday off 
from his general deliver}' business at the corner of Fourth and 
Harrison streets. Doctor Dillon gave his opinion that attenu- 



184 Coffey's Probate Decisions, Vol. 3. 

ated and abbreviated nails indicate premature birth ; he also 
said that two hundred and eighty days is the average period 
of gestation; he meant ten lunar or nine calendar months. 
Dr. Walton Preston had testified that in his twenty-three 
years of practice in various places he had delivered from six 
hundred to eight hundred children. 

Dr. "Washington Ayer may be considered as a patriarch 
among the physicians of the regular old school, for fifty years 
engaged in active practice of medicine and surgery, modest 
withal in his enumeration of achievements in his art, for he 
simply says that although in a general family practice for half 
a century he has "had many aecouchments during that time"; 
he says that the usual period of gestation is nine months or 
two hundred and seventy-five to two hundred and eighty daj^s. 
The signs of premature birth are lack of development, the gen- 
eral appearance of the child without noting any particular 
m.arks upon it; there is no infallible sign. If it is seven or 
eight months there would be an arrest of development of 
nails; as it approached toward the full period, eight montlis 
say, there would be nothing that would be reliable whatever, 
except the general appearance of the child would indicate 
the period of maturity, the term of gestation. A seven 
months' child has been generally considered more likely to 
live than an eight months' child. Where an eight months' 
child is born, it is usually almost invariably where women have 
borne children and the womb becomes enfeebled, the append- 
ages changing place in the structure of the membranes of_the 
womb, producing fatty degeneration or calcareous formation — 
this would bring about a condition of malnutrition, with the 
consequence of premature birth, and the child would carry 
that feebleness with it and would die of inanition. Dr. Ayer 
says that so far as his observation has extended in the course 
of his fifty years of experience, children born at a period of 
eight months' gestation survive but a short time, about nine- 
teen out of twenty perish; hardly five per cent of survivals. 
The first child is less likely to be eight months than the after- 
born children. Assuming that a man and woman are mar- 
ried on January 6, 1895; the man dies on January 28, 1895; 
there is a child bom to the woman on September 16, 1895; 
a period of gestation of two hundred and fifty-three days, 



Estate of James. 1^5 

if the child was a strong, healthy child, "as healthy as the 
average child," no defects in its development, Dr. Ayer thinks 
that his judgment on such hypothesis would be erroneous. 
In such a case this expert physician thinks that it was within 
the period of gestation, or that gestation must extend beyond 
the time stated — that is to say, that conception must have 
preceded marriage. If a child was born in two hundred and 
fifty-three days after conception and was perfect in every 
way except its finger and toe nails were shorter than they 
should be. Doctor Ayer would not attach any importance to 
the lack of nail development, and he would not say that a 
seven and three-quarters pound child, eating regularly and 
healthy in every respect, was a premature child. A healthy 
child during the first few days after birth sleeps all the time 
except when nursing. As the result of his own observation 
comprehending more than a generation, including attendance 
on over two thousand births. Dr. Ayer cannot call to mind 
any case where an eight months' child survived. The period 
or liability of life in such case is very brief; very short, in- 
deed. After a series of definitions of anasarca, cystitis or 
inflammation of the bladder, Bright 's disease, and kindred 
ailments, the hypothetical question was addressed to this 
doctor: Assume a man sixty-three years of age; well built; 
about five feet and five inches in height ; weighing about one 
hundred and fifty pounds; suffering from Bright 's disease and 
anasarca to such an extent that he died on the tv/enty-eighth 
day of January, 1895 — would it have been possible for him 
to have had sexual intercourse on the 6th of January, 1895? 
To which question Dr. Ayer made answer that he did not 
think it would be possible; it would not have been probable. 
Where there is anasarca, any dropsical affection, the cor- 
puscles of the blood lose tone ; they lack stimulant to muscular 
fiber, and consequently would not stimulate the erecticle tissue 
enough for the performance of the marital rite of coition ; 
there could be no coition. It would not be possible in the 
assumed case for him to have had sexual intercourse every 
night from January 6th to January 28th, or at all. Usually 
death is sudden in case of Bright 's disease; at the end some 
premonition of death for a few days prior thereto is shown, 
but usually it comes very sudden at last. The constitutional 



186 Coffey's Probate Decisions, Vol. 3. 

condition and habits of life being average throughout, the 
patient's period of life might be protracted a year. 

There is a somewhat musty proverb as to the effect of the 
disagreement of doctors; in this case the court must decide 
upon the apparent conflict of evidence. There are three 
ph,ysicians who testify one way, one who expresses a contrary 
opinion — three to one ; no difficulty if numbers count. But 
the law says that numerical force must yield to superior qual- 
ity; hence, we have undertaken a sort of analysis qualitative 
and quantitative of the doctors' dicta. Dr. Preston says that 
it is an exploded idea that an eight months' child is less 
likely to live than one born in seven months. Dr. Harris 
considers the chances equal; Dr. Dillon thinks the eight 
months' child has a vital advantage. Dr. Preston has prac- 
ticed twenty-three years, Harris twenty, Dillon three ; the sum 
of the experience in years of these three medical gentlemen 
is forty-six ; the extreme estimate of the number of cases 
attended by them is eighteen hundred. Dr. Ayer, opposed in 
opinion to these three, has been fifty j^ears in active practice 
as a general family physician, forty-eight years continuously 
in San Francisco, and has attended over two thousand births. 
All other things being equal, credit, character, capacity, what 
principle of evidence turns the scale? It is that which is 
expressed in the statute, that the court is not bound to decide 
in conformity with the declarations of any number, of wit- 
nesses against a less number or against a presumption or other 
evidence satisfying the judicial mind; and the application of 
this principle gives greater force to the opinion of Dr. Ayer 
than that of the three learned doctors who differ from him. 

Doctor Ayer has spent more years in the practice of his 
profession and has had more experience in the obstetric art 
than all the others combined, and he is certainly their pro- 
fessional peer. In endowment of education and character he 
is, on this record, at least equal to his younger brethren who 
have testified and outranks them in the duration and area of 
his practice, and he declares that he has never known a case 
of an eight months' child that has survived more than a short 
time; out of two thousand eases in the course of fifty years 
he could not recall a single case of such survival ; and the 
shortness of nails is in itself a matter of no importance. 



Estate of James. 187 

Relatively Dr. Ayer's testimony seems most trustworthy. 
From the medical testimony herein collated no other conclu- 
sion can be reached by the court than that the infant came 
forth in the natural order and in due season — that is to say, 
that the period of gestation was nine calendar months, or 
approximately two hundred and eighty days; and that, con- 
sequently, the child must have been conceived prior to the 
sixth day of January, 1895, the date of the alleged contract 
marriage; and from all the evidence, medical and other, that 
deserves credence, the court deduces the conclusion that the 
decedent was so far the victim of diseases that impaired his 
generative power that he was incapable of procreation and, 
hence, was not, and could not have been, the father of the 
child or any other child. He was destitute entirely of propa- 
gative faculty. 

It is claimed by counsel for the claimants that the genuine- 
ness of the signature of Dr. James to the written consent is 
proved by the testimony of Laura, who saw him sign it; by 
his admission of the writing to Dr. and Mrs. Milen ; by the 
admission of the marriage by Dr. James to Mrs. Dickman 
and to Dr. Terry and son, as this admission comprehended 
the signing of the written consent to marriage, and by the 
introduction to Williams and Bigley of his wife, which also 
involved an admission of the marriage and of the written con- 
sent connected therewith ; by the written consent having been 
found in the desk of Dr. James, which desk was locked and 
sealed the day after his death, and by the testimony of Rufus 
C. Hopkins, an eminent expert and respected octogenarian 
and pioneer, a man of half a century's experience in the exam- 
ination of handwriting, well known to the court and to the 
community for his exalted character and prime capacity in 
his specialty. 

Against the opinion evidence of Mr. Hopkins is the testi- 
mony of Mr. Gustav Folte and Mr. Albert M. Whittle, con- 
nected as paying teller with two savings banks in which the 
decedent was a depositor, each of whom knew Charles A. James 
and saw him often sign his name for many years in the books 
of their banks, and both of whom from that knowledge and 
comparison with admittedly authentic signatures pronounce 
the signature *'Chas. A. James" on the alleged marriage con- 



188 Coffey's Probate Decisions, Vol. 3. 

tract to be a forgery and a simulation of the signature to the 
paper marked in evidence "Mrs. James' Exhibit 8A," which 
is here transcribed. 

"Written on a printed heading: 

" (16)1^^ Please send answer by 
Wells, Fargo & Co.'s Express. 

"San Francisco, Jany. 16th, 1895. 
"Theo. Milen, M. D. 
' "Inclose I send you money order on W. F. & Co., 

San Jose, for Twenty-five dollars at your and wife's 
request. Please return at your earliest convenience 
and oblige 

"CHAS. A. JAMES, 
"925 Howard St., 
"San Francisco. 

"(Mem. The original was written in black ink on j-ellow 
paper. This is here inscribed in red ink to indi- 
cate it as an exhibit.)" 

Mr. Folte, of the German Bank, examined both papers and 
came to the conclusion that the signature to the alleged mar- 
riage contract is not genuine, but a copy of the signature to 
the authentic document herein immediately abo-ve transcribed ; 
"there are scarcely two millimeters difference," an almost 
infinitesimal appreciation of space. One twenty-fifth part of 
an inch of our English measurement is equal to one milli- 
meter. ]\Ir. Folte does not think the signature on the con- 
tract is a tracing but a copy. The general character of the 
signature on Exhibit 8A, the letter to Dr. Milen, is that of 
freedom, regularity and lack of hesitation ; in the subscrip- 
tion to the alleged contract there is an absence of regularity 
and marks of hesitation. No man writes a signature twice 
alike. 

Mr. Whittle, of the Savings Union, familiar for nineteen 
years with the signature of Chas. A. James as a depositor in 
that institution, was of the opinion that the signature to the 
alleged marriage contract was a copy of the signature to the 
paper "Mrs. James' Exhibit 8A." It was not a tracing but 
an imitation and a very close one. Mr. RufiLs Clement Hop- 
kins, to whom, as an expert, counsel and court have paid 



Estate of James. 189 

merited tribute, scrutinized several documents said to be 
authentic signatures of decedent and after comparison with 
the disputed signature pronounced the latter genuine. Mr. 
Hopkins examined and made tracings of the signatures of 
twelve admittedly authentic papers in evidence, and com- 
pared them with the signature to the disputed contract, con- 
cluding from the comparison that the contract signature was 
authentic. General Hart, of counsel for claimant, considers 
these tracings, which were given for the purpose of showing 
approximately the character of the signature of decedent with 
respect to uniformity and other features that give expressiou 
to handwriting and indicate the authorship of the script, 
and the counsel thinks these tracings are sufficiently exact as 
compared with the original to serve that purpose, and claims 
from these tracings that it is clear that decedent had no tixed 
or stereotyped habit or form in signing his name, and that 
while all of his signatures bear a characteristic family resem- 
blance, they differ in features as much as the children of 
the same parents differ from each other; but it may be added 
to this argument, that there are sometimes twins in a family 
group, and the subscriptions to the two papers, "Mrs. James' 
Exhibit 3" and "Mrs. James' Exhibit 8A," may be categor- 
ized as twin signatures. General Hart exclaims interroga- 
tively, "If this marriage contract be a forgery, where did the 
forger find the model or exemplar?" The answer is made 
by the adverse counsel that it was found in the paper coming 
from the claimants' side marked "Mrs. James' Exhibit 8A," 
and the counsel so answering, Mr. George D. Shadburne, is 
impressed with the idea that the contract signature is a trac- 
ing the signature on that exemplar, the letter to Dr. Milen. 
and Mr. Shadburne thinlcs that an examination of the paper 
"Mrs. James Exhibit 8A" wnll demonstrate this idea indubi- 
tably; mark the condition of the yellow paper, pinholes and 
creasings and other indicia of fabrication. All this may be 
so — there are certainly symptoms of tracing — but the evi- 
dence does not favor this theory so much as it does that of 
copying or imitation, and the very discrepancies between the 
two signatures fortify the opinion that the final form of 
forgery adopted was the latter, although tracings may also 
have been tried. "No man writes his signature twice alike," 



190 Coffey's Probate Decisions, Vol. 3. 

say the experts; even twins are in some details discrepant to 
the sharp scrutineer; and applying this general philosophy 
to the particular proposition, there may be found in these 
twin sig-natures the following discrepancies : 

In the entire length of the name from the beginning of 
the point in the capital letter "C" to the end of the point 
in the letter "s" in "James" there is a difference of one- 
sixteenth of an inch. 

Exhibit 8A being one-sixteenth of an inch longer than that 
of Exhibit 3. The cause being that the tail in the "s" is 
longer in 8A than in 3. 

The length of the capital "C" in Exhibit 3 is one-sixteenth 
of an inch longer than in Exhibit 8A. 

The length of the loop of the capital "C" is one thirty- 
second of an inch longer than in Exhibit 8A. 

There is a slight difference in the ending of the capital 
"C," the one in Exhibit 8A ending with a sort of a curve. 

The "s" in "Chas." in Exhibit 3 is one thirty-second of an 
inch longer than in Exhibit 8A. 

The capital "A" is one thirty-second of an inch longer 
in Exhibit 8A than in Exhibit 3. 

The upper loop in the letter "J" in the Exhibit 3 is some- 
what flat in comparison with that of Exhibit 8A. 

The lower loop in the capital "J" in the Exhibit 8A is 
one-sixteenth of an inch longer than in the Exhibit 3. 

In the word "James" the letters "a" and "e" in Exhibit 
8A are more in a direct line than in Exhibit 3. 

In Exhibit 3 it will be observed that these two letters are 
somewhat elevated above the line. 

It is also noticeable that the "s" in "Chas. " in Exhibit 3 
ends with a tail thus, "Chas.," while there is scarcely any 
caudal appendage in the terminal "s" in Exhibit 8A: 
"Chas." 

A remarkable feature of the two signatures is that the 
angles of the different letters are identical. This can be 
more readily observed by measuring the distance from the 
edge of both documents to the beginning of the name, or any 
part thereof, and it will be noticed that there is not the 
slightest diff'erence in any part of the name, 



Estate op James. 191 

These comparisons suggest the counterfeit. The trivial dis- 
crepancies indicate imitation — here is where the work of the 
forger is found out; some small slip in simulation leads to 
detection, where all else is identity in form. There is always 
a clue to crime even though the criminal be not caught. 

This alleged contract is a forgery beyond any shadow of 
doubt; there is no escape from this conclusion upon the evi- 
dence as presented and herein examined and analyzed. But 
how, asks counsel for claimants, did that contract get into the 
desk of the deceased? It is patent from the circumstances 
that it was put into that desk between the 2d and 22d of 
February, 1895. The testimony of Cluen and Herrin shows 
that it was not there when the desk was first examined after 
the death of Dr. James, on the 2d of February, 1895, when 
a thorough examination was made of the contents. Then 
the desk was locked by the public administrator's clerk and 
he put his official seal, a common stamped circular paper seal, 
over the keyhole. Afterward, on February 25, 1895, there 
was another examination and an exhibition in which there 
was dramatically developed from that self-same secretary 
the desired document. Claimant knew of its existence and 
whereabouts on the 2d of February, 1895. She knew when 
the public administrator presumed to take possession of her 
premises that the paper attesting her right was in that re- 
ceptacle, and once produced no one would dare to trespass 
upon her domain. She saw her husband after the contract 
was executed place it in that repository, so she testified on 
February 21, 1895, and it was either there or next his heart 
in his vest pocket, yet it was sought out in neither place; 
nor was its existence proclaimed either from housetops or in 
the silent sanctuary wherein lay the enshrouded body of 
her departed husband and father of her prospective child. - 
Neither at the wake nor at the funeral from the house nor 
at the interment in the cemetery was there aught to indicate 
that claimant was wife or widow. She was present when 
Dr. James died, say her counsel, but the evidence is uncontra- 
dicted that she made no sign of mourning such as a suddenly 
bereaved wife would naturally exhibit. Unless she were a 
very clod, instead of a young and tender woman, made widow 
without warning, she would have given vent to uncontrollable 



192 Coffey's Pkobate Decisions, Vol. 3. 

emotion of grief at stich a domestic catastrophe. "She mani- 
fested her affection by dropping a rose in his grave," say her 
advocates, and then in company with her chaperon, Mrs. 
Jessie Milen, she leaves the cemetery and returns to their 
lodgings, without the slightest allusion to her rights as 
widow. 

The condition of the desk and the appearance of the seal 
indicate that they were tampered with. The seal could easily 
have been removed and replaced, and no such flimsy affair 
should be emploj^ed by a public officer for so important a pur- 
pose. The inference from the evidence is irresistible that this 
forged paper was inserted in that desk and the seal taken off 
and, when the purpose was accomplished, reattached; the 
whole scheme is artificial and apparent. Meanwhile the story 
of the marriage was concocted, "a story of love and passion"; 
fatuous old December engaged in dalliance futile, perhaps 
fertile, with blithe young May; the antique tale of Winter 
lingering in the lap of Spring — all very romantic, but quite 
untrue ; mere material for a new novel in which may be 
inwrought the letters so carefully contrived to support claim- 
ant's case and put up the same as any other prescription 
by the doctor in this drama. This claimant never asserted 
Lerself as widow until about February 13, 1895, when the 
telegram was sent to Dr. Milen in San Jose that she was 
pregnant. Prior to that time no such pretension was put 
forth; even in her own household her brother in law Dick- 
man ridiculed the idea, as his testimony shows. He never 
believed the story, and knevv' it was an invention. As his 
telegram and letter to Miss Mattie James in the east clearly 
establish, he had no faith in any such preposterous pre- 
tensions, and he clearly wanted to corner the heirs by obtain- 
ing a power of attorney carefully prepared for that purpose 
and in evidence here. 

The testimony on both sides of this case has been reviewed 
with care, and I think the abstract given in this opinion omits 
no matter essential to a correct conclusion, and contains noth- 
ing irrelevant or immaterial. It has not been deemed neces- 
sary to condense character evidence or to allude to it; the 
facts of the case are here. The claimant and her stepmother 
have in about every instance where the respondents intro- 



Estate of James. 193 

duced witnesses against them met such statements with 
prompt and point blank denials ; everything contrary to their 
stories was absolutely and totally faLse, no matter how strong 
the inherent probability of those witnesses nor how compact 
the circumstances nor how reputable and uninterested such 
persons so testifying might be — they were all utterers of 
untruth; but this controversy must be determined by the 
whole record, and by that record the claimants must stand or 
fall. 

Upon the record here presented, this court pronounces 
judgment: 1. That the alleged contract is not legal in form, 
according to the decisions of the supreme court ; 2. That the 
alleged contract is a forgery ; 3. That there was no mutual 
assumption of rights, duties or obligations marital, and that 
they never lived together as husband and w^ife; 4. That the 
child claimant is not the child of the decedent, Charles A. 
James. 

Application denied as to Laura Milen James and Theodore 
Milen James; granted as to absent heirs. 

FINDINGS. 

The applications for distribution herein came on regularly 
for hearing before the court sitting without a jury, a jury 
trial thereof having been duly waived, Messrs. W. H. H. 
Hart, Geo. W. Fox and Aylett R. Cotton representing Laura 
Milen James (so called) and Theodore Milen James (so 
called), and Geo. D. Shadburne, Esq., representing the absent 
heirs of said deceased, on the ninth day of December, 1896. 
and was on hearing from day to day until the twelfth day 
of March, 1897, during which time the evidence, oral and 
documentary, of the contestants was educed and presented, 
whereupon after the argument of counsel said applications 
were duly submitted to the court for its deci.sion, and now 
after mature deliberations the court finds the following: 

FACTS. 

I. That Charles A. James died intestate in the city and 
county of San Francisco, state of California, on the twenty- 
eighth day of January, 1895, leaving him surviving: 1. P. M. 
James; 2. Chas. T. James; 3. Nathan W. James; 4 Francis 

Prob. Dec, Vol. Ill — 13 



194 Coffey's Probate Decisions, Vol, 3, 

T. Bronghton ; 5. Lucy A. Nichols; 6. "William J. Clark; 7. 
Lydia E. Hoxie; 8. Geo. W. Clark; 9. Hannah A. Wads^ 
worth; 10. Amy A. Eeisch; 11. William Henry Barber; 12. 
Mattie E. James; 13. Daniel M. James; 14. Elizabeth E. 
Barber; 15. Lydia L. Hopkins; and 16. Willard B. James, 
who are of the following degrees of relationship to said de- 
ceased, to wit: 

1. P. M. James, Chas. T. James, Nathan W. James, Francis 
T. Broughton, and Lucy A. Nichols, who are the issue of 
Peleg W. James, a deceased brother of said Charles A, James, 
deceased. 

2. William J. Clark, Lydia E. Hoxie, Geo. W. Clark, 
Hannah A. Wadsworth and Amy A. Reisch, who are the 
issue of Eocellany E. Clark (nee James), a deceased sister 
of said Charles A. James, deceased. 

3. William Henry Barber, who is the issue of ]\Iary A. 
Barber (nee James), a deceased sister of said Charles A. 
James, deceased. 

4. Mattie E. James, who is the issue of Thomas A. James, 
a deceased brother of said Charles A. James, deceased, 

5. Daniel M. James, who is a brother of said Charles A. 
James, deceased, 

6. Elizabeth E. Barber (nee James), who is a sister of 
said Charles A. James, deceased. 

7. Lydia L. Hopkins (nee James), who is a sister of said 
Charles A. James, deceased. And 

8. Willard B. James, who is a brother of said Charles A. 
James, deceased. 

II. That all the above-named nephews and nieces, brothers 
and sisters of said Charles A. James, deceased, are and at 
all times mentioned in their petition herein Avere nonresi- 
dents, to wit, residing out of the state of California. 

III. That on the twenty-first day of February, 1895, An- 
drew C. Freeze, Esq., was, by the order of said Superior 
Court, duly entered and made, duly appointed the adminis- 
trator of the Estate of said Charles A. James, deceased, and 
his powers as such administrator have never been revoked. 

IV. That thereafter, to wit, on the twenty-first day of 
February, 1895, notice to creditors to present their claims 
against said estate were duly published. 



Estate of James. 195 

V. That thereafter, to wit, on the fourth day of March, 
1896, said administrator presented his account of his admin- 
istration to said court for allowance, and the same was duly 
allowed and settled on the twentieth day of March, 1896. 

VI. That all the claims against said deceased presented to 
said administrator and all the taxes against said estate have 
been and were at the time of filing said applications for dis- 
tribution herein paid and discharged, and said estate was 
then and is now ready for distribution. 

VII. That the residue of said estate now remaining in the 
hands of said administrator is that certain real estate situate 
in said city and county, bounded and described as follows, 
to wit: Commencing at a point on the southeasterly line of 
HoM^ard street, distant thereon 75 feet southwesterly from 
the southerly corner of 5th and Howard streets ; thence south- 
westerly along the southeasterly line of Howard street 25 
feet; thence at right angles southeasterly 80 feet; thence at 
right angles northeasterly 25 feet and parallel with Howard 
street, and thence at right angles northwesterly, 80 feet to the 
point of commencement, together with the improvements, con- 
sisting of a three-storj^ frame building and the appurtenances 
appraised at $15,000; also, personal property consisting of 
cash on hand about $31,000; and the following jewelry, to 
wit: One small gold ring; one large gold ring; one gold ring 
with five diamonds; one amethyst set consisting of brooch and 
earrings; one diamond stud; three yellow metal collar but- 
tons; one gold watch No. 10095, J. W. Tucker, maker; one 
gold chain ; one pair of diamond earrings containing six stones 
each; one pair gold bracelets, containing nine diamonds each, 
and one gold cross containing sixteen diamonds. 

The furniture has hitherto been sold by the administrator 
under the order of the court. 

The wearing apparel of Chas. A. James, deceased, and of 
his deceased wife, Susan K. James, have not been accounted 
for by said administrator. The above residue of property is 
subject to expenses of administration and counsel fees for 
absent heirs, which have not been settled or allowed. 

VIII. That Laura Milen James (so called) never was at 
any time the wife or widow of said Charles A. James, either 
by contract or otherwise. 



196 Coffey's Probate Decisions, Vol. 3. 

IX. That Theodore Milen James (so called) is not the 
child of said Charles A. James, legitimate or illegitimate, or 
otherwise. 

X. That said Charles A. James left him surviving neither 
issue, surviving wife, father nor mother. 

XI. That all of the property aforesaid was the separate 
property of said Charles A. James, deceased. 

From the foregoing facts the court finds the following 

conclusions op law. 
That P. M. James, Chas. T. James, Nathan W. James, 
Francis T. Broughton, Lucy A. Nichols, William J. Clark, 
Lydia E. Hoxie, Geo. W. Clark, Hannah A. "Wadsworth, Amy 

A. Reisch, William Henry Barber, Mattie E. James, Daniel 
M. James, Elizabeth E. Barber, Lydia L. Hopkins and Willard 

B. James, are the next of kin and heirs at law of said Charles 
A. James, deceased, and as such are entitled to inherit his 
estate — to the brothers and sisters in equal degree, and the 
nephews and nieces by right of representation. 

Let a decree of distribution be entered accordingly. 



The Principle Case Was Appealed to the supreme court and reversed 
on questions of evidence. No nev? trial of the case was had, however, 
and the judgment of the trial court stands as originally rendered. 
Hence it may well be doubted whether the action of the appellate 
tribunal materially affects the decision of the lower court as an au- 
thority. 

COMMON-LAW MARRIAGES. 

Marriage as a Civil Contract. — Marriage is a civil contract, de- 
pending for its validity upon the free consent of parties not labor- 
ing under any legal disability, and upon nothing else in the absence 
of positive statutory declarations to the contrary: Brisbin v. Hunt- 
ington, 128 Iowa, 166, 103 N. W. 144; Floyd County v. Wolfe (Iowa), 
117 N. W. 32; Hulett v. Carey, 66 Minn. 327, 61 Am. St. Eep. 419, 
69 N. W. 31, 34 L. R. A. 384; Keen v. Keen, 184 Mo. 358, 83 S. W. 
526; Voorhees v. Voorhees' Exrs., 46 N. J. Eq. 411, 19 Am. St. Eep. 
404, 19 Atl. 172; Di Lorenzo v. Di Lorenzo, 174 N. Y. 467, 95 Am. 
St. Eep. 609, 67 N. E. 63, 63 L. E. A. 92; Commonwealth v. Haylow, 
17 Pa. Super. Ct. 541. To quote from Cartwright v. McGown, 121 
111. 388, 2 Am. St. Eep. 105, 12 N. E. 737: "A marriage is a civU 
contract, made in due form, by which a man and woman agree to 
take each other for husband and wife, during their joint lives, unless 
it is annulled by law, and to discharge toward each other the duties 



Estate of James. 197 

imposed by law upon such relation. Each must be capable of assent- 
ing, and must in fact, consent, to form this new relation." 

Marriage as a Status. — But while the law defines marriage as 
a civil contract, and such indeed it is, it is something more than a 
mere contract, for it creates a status or relation as much as that of 
parent and child, which the parties of themselves cannot dissolve: 
Willits V, Willits, 76 Neb. 228, 107 N. W. 379, 5 L. R. A., N. S., 
767; Hilton v. Eoylance, 25 Utah, 129, 95 Am. St. Rep. 821, 69 Pac. 
660, 58 L. R. A. 723; Holmes v. Holmes, Fed. Cas. No. 6638, 1 Saw. 
99. "Marriage is more than a mere civil contract for the establish- 
ment and maintenance by the parties to it of certain relations to each 
other. It involves, except in so far as it has been modified by stat- 
ute, an intimate personal union of those participating in it of a 
character unknown to any other human relation, and it creates a 
civil status, the maintenance of which in its full integrity is vital 
to the moral welfare of society": Taylor v. Taylor (Md.), 69 Atl. 632. 
Said the supreme court of Missouri: "Marriage is considered in law 
as a civil contract, to which the consent of the parties capable in 
law of contracting is essential. While it is here declared to be a 
civil contract, it is almost universally held to be something more 
than an ordinary contract. Marriage is a status, created by con- 
tract, and we formulate the definition of it as follows: Marriage 
is the civil status of one man and one woman, capable of contract- 
ing, united by contract and mutual consent for life, for the dis- 
charge, to each other and to the community, of the duties legally 
incumbent on those whose association is founded on the distinction 
of sex": State v. Bittick, 103 Mo. 183, 23 Am. St. Rep. 869, 15 S. 
W. 325, 11 L. R. A. 587. "What persons establish by entering into 
matrimony is not a contractual relation, but a social status; and the 
only essential features of the transaction are that the participants 
are of legal capacity to assume that status, and freely consent to 
do so": University of Michigan v. McGuckin, 64 Neb. 300, 89 N. W. 
778, 57 L. E. A. 917. 

Essentials of Common-law Marriage. — The mutual agreement to be 
husband and wife in praesenti by a man and woman capable of as- 
suming that relation, especially if followed by matrimonial cohabita- 
tion, constitutes a common-law marriage, without any necessity for a 
solemnization or formal ceremony of any kind: Blanchard v. Lambert, 
43 Iowa, 228, 22 Am. Rep. 245; Smith v. Fuller (Iowa), 108 N. W. 
765; Laurence v. Laurence, 164 111. 367, 45 N. E. 1071; McKenna v. 
McKenna, 73 111. App. 64; Hutchinson v. Hutchinson, 96 111. App. 52, 
196 111. 432, 63 N. E. 1023; Porter v. United States (Ind. Ter.), 104 
S. W. 855; State v. Walker, 36 Kan. 297, 59 Am. Rep. 556, 13 Pac. 
279; Matney v. Linn, 59 Kan. 613, 54 Pac. 668; Williams v. Kil- 
burn, 88 Mich. 279, 50 N. W. 293; State v. Worthingham, 23 Minn. 
528; Diekerson v. Brown, 49 Miss. 357; Floyd v. Calvert, 53 Miss. 
37; Dyer v. Brannock, 66 Mo. 391, 27 Am. Rep. 359; Eaton v. Eaton, 
66 Neb. 676, 92 N. W. 995, 60 L. R. A. 605; Voorheea v. Voorhees' 



198 Coffey's Probate Decisions, Vol. 3. 

Exrs., 46 N. J. Eq. 411, 19 Am. St. Rep. 404, 19 Atl. 172; Carmichael 
V. State, 12 Ohio St. 553; Ingersol v. Mc Willie, 9 Tex. Civ, App. 543, 
30 S. W. 56; Overseers of Poor of Town of Newbury v. Overseers 
of Poor of Town of Brunswick, 2 Vt. 151, 19 Am. Dec. 703; Mathew- 
son V. Phoenix Iron Foundry, 20 Fed. 281; United States v. Route, 
33 Fed. 246; Holabird v. Atlantic Mut. Life Ins. Co., Fed. Gas. No. 
6587, 2 Dill. 166. 

Proof of Contract. — A marriage contract may, like other con- 
tracts, be proved by the signature of the parties or by witnesses who 
were present when it was made: In re Imboden's Estate, 111 Mo. App. 
220, 86 S. W. 263; Commonwealth v. Stump, 53 Pa. 132, 91 Am. Dec. 
198. If such evidence is wanting, then marriage may be proved from 
cohabitation, reputation, conduct and other circumstances (Smith v. 
Fuller (Iowa), 108 N. W, 765; Fourier v. McKenzie, 147 Fed. 287), 
of which more will be said hereafter. While the evidence to estab- 
lish a common-law marriage should be clear, consistent and convincing 
(In re Eossiquot's Will, 112 N. Y. Supp. 353), still each fact and 
circumstance relied upon need not be so conclusively proved that noj 
other reasonable conclusion fron^ the evidence can be drawn; it is 
enough that all the facts and circumstances are fairly sufficient to 
justify a finding in favor of the marriage: Edelstein v. Brown (Tex. 
Civ. App.), 95 S. W. 1126. 

Conflict of Laws. — The rule that a marriage, valid in the state cr 
country where entered into, is valid in every other state or country, 
unless there prohibited by some positive rule of law or public policy 
(Succession of Gabisso, 119 La. 704, 121 Am. St. Rep. 529, 44 South. 
438, 11 L. R. A., N. S., 1082; Commonwealth v. Graham, 157 Mass. 
73, 34 Am. St. Rep. 255, 31 N. E. 706, 16 L. R. A. 578; Pennegar 
& Haney v. State, 87 Tenn. 244, 10 Am. St. Rep. 648; State v. 
Shattuck, 69 Vt. 403, 60 Am. St. Rep. 936, 38 Atl. 81, 40 L. R. A. 
428; Wjlley v. Willey, 22 Wash. 115, 79 Am. St. Rep. 923, 60 Pac. 
145), applies to common-law marriages: Darling v. Dent. 82 Ark. 76, 
100 S. W. 747; Smith v. Smith, 52 N. J. L. 207, 19 Atl. 255; Estate 
of McCausland, 213 Pa. 189, 110 Am. St. Re^j. 540, 62 Atl. 780. Hence, 
a common-law marriage contracted in a state where such marriages 
are valid may be recognized in another state where such marriages 
cannot be entered into: Nelson v. Carlson (Wash.), 94 Pac. 477. 

A marriage by contract in one state, followed by cohabitation in 
another state, was held valid in Gibson v. Gibson, 24 Neb. 294, 39 
N. W. 450. And where the question as to the validity of a common- 
law marriage arose in Alabama after there had been cohabitation in 
Kentucky and in Ohio, the supreme court of Alabama said: "Al- 
though the statutes of Kentucky declare every marriage void unless 
solemnized in the manner provided therein, and a common-law mar- 
riage cannot be contracted in that state, yet evidence was properly 
admitted to show that the cohabitation, which began and continued 
for ten years in Ohio, where the common law is presumed to prevail, 
and where a common-law marriage is valid, in the absence of a 



Estate of James. 199 

statute expressly prohibiting such marriage, was continued for two 
years longer in Kentucky. Such evidence was not admissible to 
prove that the marriage relation grew out of the cohabitation in " 
Kentucky, or that the cohabitation became lawful in Kentucky by 
the parties agreeing in that state to be man and wife; but it was 
clearly admissible to strengthen the presumption that the cohabita- 
tion in Ohio was lawful. It is always competent, on an issue of 
marriage vel non, to show the duration of the cohabitation": Moore 
V. Heineke, 119 Ala. 627, 24 South. 374. 

Effect of Common-law Marriage. — A common-law marriage confers 
upon the parties all the rights and subjects them to all the duties 
and obligations usually incident to the marriage relation when en- 
tered into in accordance with the written law: Steves v. Smith 
(Tex. Civ. App.), 107 S. W. 141; Davis v. Pryor, 112 Fed. 274, 50 
C. C. A. 579. If the father and mother of a child, soon after its 
birth, agreed with each other in one state to become, and live to- 
gether as, husband and wife until parted by death, thereafter con- 
tinuing to live together as, and holding themselves out to the world 
to be, husband and wife, such contract of marriage legitimates their 
child, not only in that state, but also in another state where a common- 
law marriage is recognized as valid: McCausland's Estate, 213 Pa. 
189, 110 Am. St. Eep. 540, 62 Atl. 780. And in case of the wrongful 
death of a man, his wife and children by a common-law marriage 
may recover damages therefor: Galveston, H. & S. A. Ry. Co. v. 
Cody, 20 Tex. Civ. App. 520, 50 S. W. 135. 

Necessity for Agreement. — It is essential to a common-law marriage 
that there shall be a mutual agreement between the parties to assume 
toward each other the relation of husband and wife. Cohabitation 
without such an agreement does not constitute marriage: Compton v. 
Benham (Ind. App.), 85 N. E. 365; Commonwealth v. Stevens, 19(3 
Mass. 280, 82 N. E. 33; and an agreement to live together is not 
marriage, if there is no agreement to live as husband and wife: 
Soper v. Halsey, 85 Hun, 464, 33 N. Y. Supp. 105. 

Form of Agreement. — No particular words, however, are necessary 
to constitute a valid marriage by mutual agreement; if enough is ; 
said and done to evidence an intention by the parties to assume a 
marital relation, this is sufficient whatever may be the form of ex- 
pression employed. But enough must be said and done to show 
such intention: Mickle v. State (Ala.), 21 South. 66; Heymann v. 
Heymann, 218 111. 636, 75 N. E. 1079; Bowman v. Bowman, 24 111. 
App. 165; Marks v. Marks, 108 111. App. 371; Clancy v. Clancy, 66 
Mich. 202, 33 N. W. 889; State v. Hansbrough, 181 Mo. 348, 80 S., 
W. 900; In re Hines' Estate, 7 Pa. Dist. Ct, 89. The intention of 
the parties is to be gathered from the circumstances attending the 
cont:'act, rather than from mutual reservations or secret Intentions 
of either party: In re Imboden's Estate, 111 Mo. App. 220, 86 S. W. 
263. If there is an agreement, followed by cohabitation, a marriage 



200 Coffey's Probate Decisions, Vol. 3. 

is established, regardless of what the parties consider the legal effect 
of the contract: Tarrt v. Negus, 127 Ala. 301, 28 South. 713. 

Implied Contracts. — While some doubt has been expressed on the 
question, still it would seem clear that to constitute a common-law 
marriage, an express agreement is not essential, but a contract to 
live together as husband and wife may be implied from the acts 
and conduct of the parties; and that a contract so implied has all 
the force and effect of a contract expressed in written or spoken 
words: Hilton v. Eoylance, 25 Utah, 129, 95 Am. St. Eep. 821, 69 
Pac. 660, 58 L. B. A. 723; Adger v. Ackerman, 115 Fed. 124, 52 C. 
C, A. 568. "If a marriage contract need not be evidenced by writ- 
ing, and of course it need not be, we can conceive of no reason why 
it may not, like many other civil contracts, be evidenced by acts 
and conduct from which its making ore tenus may be presumed": 
Eenfrow v. Eenfrow, 60 Kan. 277, 72 Am. St. Eep. 350, 56 Pac. 534. 
"We must start, therefore, in the examination of this case," said 
the New York court, "with the fact that the living together of 
these two people, so far as they did live together, was not preceded 
by any ceremonial marriage, or by any express agreement that they 
should live together as man and wife. No ceremony is necessary to 
create the relation of man and wife in this state. The contract of 
marriage, so far as its inception goes, is regarded as is any other 
contract, and it may be begun by an agreement between the two in- 
terested parties that they assume toward each other the relation of 
husband and wife. That agreement, if it is not proven in express 
terms by competent evidence, may be established by the facts of 
cohabitation and reputation among their friends and neighbors, and 
of recognition of each other as holding that relation: Gall v. Gall, 
' 114 N. Y. 109, 21 N. E. 106; Hynes v. McDermott, 10 Daly, 423, 
affirmed 91 N. Y. 451, 43 Am. Eep. 677. But these facts, of them- 
selves, do not constitute a marriage. They are simply evidence from 
which, if sufficiently strong, the courts are at liberty to infer that 
the cohabitation was the result of a previous agreement to become 
man and wife, and from that fact to infer further that a marriage 
actually existed between the parties: Gall v. Gall, 114 N. Y. 109, 
21 N. E. 106. It is quite true that it ha-s been said that the pre- 
sumption of marriage arising from cohabitation, apparently matri- 
monial, is one of the strongest known to the law. In many cases 
this is undoubtedly the fact. But this presumption is indulged in 
in the interest of decency and clean living, and because of the pref- 
erence which the law has for orderly and decent conduct as against 
licentiousness. The inference is not made for the benefit of either 
party to the alleged contract": In re Brush, 25 App. Div. 610, 49 N. 
Y. Supp. 803. 

Agreement in Words of Present Tense. — There is no doubt, in the 
absence of a positive statutory declaration to the contrary, that 
where a man and woman agree in words of the present tense to take 
each other as husband aud wife, and then in pursuance of the agree- 



Estate of James. 201 

ment assume marital relations, a valid marriage is accomplished. 
This is the usual form of a common-law marriage, and technically 
is styled marriage per verba de praesenti: Hutchinson v, Hutchinson, 
196 III. 432, 63 N. E. 1023; Shorten v. Judd, 60 Kan. 73, 55 Pac. 286; 
Hutchins v. Kimmell, 31 Mich. 126, 18 Am. Eep. 164; Dj'er v. Bran- 
nock, 66 Mo. 391, 27 Am. Eep. 359; Atlantic City E. Co. v. Goodin, 
62 N. J. L. 394, 72 Am. St. Eep. 652, 42 Atl. 333, 45 L. E. A. 671; 
Travers v. Eeinhardt, 205 U. S. 423, 27 Sup. Ct. 563, 51 L. Ed. 865. 
Agreement to Marry in Future. — An agreement to marry in the 
future, followed by cohabitation, does not constitute marriage. In 
other words, a man and woman, engaged to be married in the future, 
who live together as husband and wife when they do not understand 
themselves to be such, and are looking forward to a marriage in the 
future, are not husband and wife in the eye of the law: Eobertson 
V. State, 42 Ala. 509; Farley v. Farley, 94 Ala. 501, 33 Am. St. Eep. 
141, 10 South. 646; Port v. Port, 70 111. 484; Hebblethwaite v. Hep- 
worth, 98 111. 126; Stoltz v. Doering, 112 111. 234; Judson v. Judson, 
147 Mich. 518, 111 N. W. 78; Sorensen v. Sorensen, 68 Neb. 483, 94 
N. W. 540, 98 N. W. 837, 100 N. W. 930, 103 N. W. 455; Cheney v. 
Arnold, 15 N. Y. 345, 69 Am. Dec. 609, and note; Duncan v. Duncan, 
10 Ohio St. 181; Estate of Grimm, 131 Pa. 199, 17 Am. St. Eep. 796, 18 
Atl. 1061, 6 L. E. A. 717; Peck v. Peck, 12 R, I. 485, 34 Am. Eep. 702. 
Nevertheless, when cohabitation follows an agreement to marry in 
the future, it is presumed to be in fulfillment of such agreement and 
in consummation of actual marriage. A matrimonial union thus ef- 
fected ia a valid common-law marriage, and is denominated a mar- 
riage per verba futuro cum copula. But this rule that the copula or 
cohabitation is presumed to be in fulfillment of the previous promise 
to marry and hence to convert the executory agreement into an 
actual present marriage, is merely a rule of convenience, and may al- 
ways be overthrown by evidence that the fact is otherwise: Cart- 
wright V. McGown, 121 111. 388, 2 Am. St. Eep. 105, 12 N. E. 737; 
Hiler v. People, 156 111. 511, 47 Am. St. Eep. 221, 41 N. E. 181; Mc- 
Kenna v. McKenna, 180 111. 577, 54 N. E. 641; Marks v. Marks, 108 
HI. App. 371; Hulett v. Carey, 66 Minn. 327, 61 Am. St. Eep. 419, 
69 N. W. 31, 34 L. E. A. 384; Topper v. Perry, 197 Mo. 531, 114 
Am. St. Eep. 777, 95 S. W. 203. "To constitute a marriage legal 
at common law the contract and consent must be per verba de prae- 
senti, or if made per verba de futuro cum copula, the copula is pre- 
sumed to have been allowed on the faith of the marriage promise, 
and that so the parties, at the time of the copula, accepted of each 
other as man and wife. It is not sufficient to agree to present co- 
habitation and a future marriage when more convenient. Where 
parties have contracted a common-law marriage, without any solemni- 
zation or other formality apart from the agreement itself, it is not 
requisite that the agreement should be made before witnesses. But 
such a marriage is to be distinguished from cases of seduction or 
sexual intercourse followed by a promise of marriage, and cases where 



202 Coffey's Pkobate Decisions, Vol. 3. 

the intercourse in its inception is illicit and is known to be such 
by both parties": In re Maher's Estate, 204 111. 25, 68 N. E. 159. 

Said the supreme court of Nebraska in a recent decision: "In 
states where no marriage celebration is necessary, and when such 
contract is followed by sexual intercourse between the parties, the 
law, so as not to presume fornication, presumes that parties who have 
promised to marry mean sexual intercourse following such promise 
to be the consummation of such agreement. But this presumption 
may be rebutted by any facts which show that the parties knew or 
intended their intercourse to be illicit, as where at the time they 
were looking forward to being married with a ceremony: Peck v. 
Peck, 12 E. I. 485, 34 Am. Kep. 702; Fryer v. Fryer, Eich. Eq. Cas. 
85. In Stoltz V. Doering, 112 111. 234, it is said: 'At common law 
the fact of sexual intercourse after an agreement to marry at a future 
day does not constitute marriage. The copula must have been in 
fulfillment of the agreement to marry. From these authorities it ap- 
pears that the law, in the absence of evidence, raises the presump- 
tion that by the act of copula the parties then and there intended 
to consummate their existing agreement to marry — i. e., to convert 
the future agreement into a present consummation. This is the whole 
doctrine of m.arriages de futuro cum copula. There is no difference 
in the basic principles of the marriage contract from any other. The 
minds of the parties must meet, and the agreement to marry must be 
made. The time when the marriage shall take place may be the 
present, or may be in the future. If in the future, there is not a 
present marriage, but an agreement to marry, and the mere act of 
copula does not change the agreement. The law presumes, in the 
absence of evidence, that the parties themselves changed the terms 
of the contract from the future to the then present. When, however, 
the evidence establishes, as in this case, that during the period of the 
sexual intercourse between the parties they had set the day in the 
future, and were making preparations for and intending to solemnize 
their marriage rites in accordance with the statute of this state, 
there is no ground for this presumption, and the law will not indulge 
it' ": Sorensen v. Sorensen, 68 Neb. 483, 94 N. W. 540, 98 N. W. 837, 
100 N. W. 930, 103 N. W. 455. 

Consent of Parties. — There can be no such thing as marriage with- 
out the consent of the parties. Contracts of marriage do not differ 
from other contracts in this respect; the first essential to their validity 
is the mutual assent of the parties: McKenna v. McKenna, 180 111. 
577, 54 N. E. 641; Hooper v. McCaffery, 83 111. App. 341; Eoszel v. 
Eoszel, 73 Mich. 133, 16 Am. St. Eep. 569, 40 N. W. 858; University 
of Michigan v. McGuckin, 64 Neb. 300, 89 N. W. 778, 57 L. E. A, 917; 
Keyes v. Keyes, 22 N. H. 553; Hynes v. McDermott, 91 N. Y. 451, 
43 Am. Eep. 677; Jaques v. Public Admr., 1 Bradf. Sur. 499; Town of 
Mountholly v. Town of Andover, 11 Vt. 226, 34 Am. Dec. 685. "It is 
well established in this state," remarks the supreme court of Missouri, 
"that a marriage without observing the statutory regulations, if made 



Estate of James. 203 

according to the common law, is a valid marriage, and ttat, by the 
common law, if the contract be made verba de praesenti, it is suflS.cient 
evidence of a mar.riage, or if made per verba de futuro cum copula, 
the cohabitation is presumed to be on the faith of the marriage promise. 
That is, however, merely a rule of evidence, and it is always com- 
petent, in such cases, to show by proof that the facts are otherwise. 
Under our law marriage is a civil contract, by which a man and a 
woman agree to take each other for husband and wife during their 
joint lives, unless it is annulled by law, and to discharge toward each 
other the duties imposed by law upon such relation. Each must be 
cajjable of assenting and must, in fact, consent to form this new 
relation": Topper v. Perry, 197 Mo. 531, 114 Am. St. Eep. 777, 95 S. 
W. 203. 

Necessity of Cohabitation. — The statement is sometimes met with 
that an assumption of the marriage status is essential to a common- 
law marriage; that an agreement presently to be husband and wife 
is not sufficient to constitute marriage until it is acted upon by the 
parties: McKenna v. McKenna, 180 111. 577, 54 N. E. 641; Kobinson 
V. Eobinson, 188 111. 371, 58 N. E. 906; Lorimer v. Lorimer, 124 Mich. 
631, 83 N. W. 609; Topper v. Perry, 197 Mo. 531, 114 Am. St. Eep. 
777, 95 S. W. 203; Sorensen v. Sorensen, 68 Neb. 483, 94 N. W. 540, 
98 N. W. 837, 100 N. W. 930, 103 N. W. 455. See, too, Hawkins v. 
Hawkins, 142 Ala. 571, 110 Am. St. Eep. 53, 38 South. 640. The stat- 
utes of California declare that "consent alone will not constitute 
marriage; it must be followed by a solemnization, or by a mutual as- 
sumption of marital rights, duties or obligations." This assumption. 
of the marital relation means cohabitation as husband and wife; mere 
copulation without such cohabitation is not enough: Sharon v. Sharon, 
79 Cal. 633, 22 Pac. 26, 131; People v. Lehmann, 104 Cal. 631, 38 
Pac. 422. Some of the decisions state that a present assumption of 
marital relations is necessary: McKenna v. McKenna, 180 111. 577, 
54 N. E. 641; Topper v. Perry, 197 Mo. 531, 114 Am. St. Eep. 777, 
95 S. W. 203. But in California, if any length of time thereafter 
they assume the rights and duties of the marital relation, both under- 
standing thereby to consummate the marriage covenant, a lawful 
marriage will result under the statute: In re Euffino's Estate, 116 
Cal. 304, 48 Pac. 127. 

The true rule, however, is that a miarriage is complete when the 
parties agree, in words of the present tense, to take each other as 
husband and wife. Cohabitation or copulation following such agree- 
ment may be evidence of the existence of the agreement, but it adds 
nothing to the agreement and is not essential to the validity of the 
marriage: Dumaresly v. Fishly, 10 Ky. (3 A. K. Marsh.) 368; Jack- 
son V. Winne, 7 Wend. 47, 22 Am. Dec. 563. Said the supreme court 
of Minnesota in the leading case of Hulett v. Carey, 66 Minn. 327, 
61 Am. St. Eep. 419, 69 N. W. 31, 34 L. E. A. 384: "Upon this state 
of facts the contention of the appellants is, that there was no mar- 
riage, notwithstanding the execution by them of the written contract; 



204 Coffey's Probate Decisions, Vol. 3. 

that, in order to constitute a valid common-law marriage, the contract, 
although per verba de praesenti, must be followed by habit or repu- 
tation of marriage — that is, as we understand counsel, by the public 
assumption of marital relations. We do not so understand the law. 
The law views marriage as being merely a civil contract, not differing 
from any other contract, except that it is not revocable or dissoluble 
at the will of the parties. The essence of the contract of marriage 
is the consent of the parties, as in the case of any other contract; 
and, whenever there is a present, perfect consent to be husband 
and wife, the contract of marriage is completed. The authorities 
are practically unanimous to this elfect. Marriage is a civil contract 
jure gentium, to the validity of which the consent of parties able 
to contract is all that is required by natural or public law. If the 
contract is made per verba de praesenti, and remains, without co- 
habitation, or if made per verba de futuro, and be followed by con- 
summation, it amounts to a valid marriage, in the absence of any civil 
regulations to the contrary. The maxim of the civil law was, 'Con- 
sensus non concubitus facit matrimonium.' The whole law on the 
subject is that, to render competent parties husband and wife, they 
must and need only agree in the present tense to be such, no time 
being contemplated to elapse before the assumption of the status. If 
cohabitation follows it adds nothing in law, although it may be 
evidence of marriage. It is mutual, present consent, lawfully ex- 
pressed, which makes the marriage: 1 Bishop on Marriage, Divorce 
and Separation, sees. 239, 313, 315, 317. See, also, the leading case 
of Dalrymple v. Dalrymple, 2 Hagg. Const. 54, which is the founda- 
tion of much of the law on the subject." To the same effect is the 
recent case of Davis v. Stouffer (Mo. App.), 112 S. W. 282. 

A mere agreement to be husband and wife, said the supreme court 
of Iowa, in Pegg v. Pegg (Iowa), 115 N. W. 1027, without a present 
intention to assume that relation, does not constitute marriage. 

Cohabitation Without Agreement. — While marriage may be con- 
summated without cohabitation, there can be no marriage without 
an agreement between the parties to be husband and wife. Cohabita- 
tion, in the absence of such agreement, does not amount to marriage. 
Cohabitation is evidence of marriage, but it does not of itself consti- 
tute marriage: Hawkins v. Hawkins, 142 Ala. 571, 110 Am. St. Eep. 
53, 38 South. 640; Kilburn v. Kilburn, 89 Cal. 46, 23 Am. St. Eep. 
447, 26 Pac. 636; Compton v. Benham (Ind. App.), 85 N. E. 365; 
Eandlett v. Eiee, 141 Mass. 385, 6 N. E. 238; Norcross v. Norcross, 
155 Mass. 425, 29 N. E. 506; Commonwealth v. Stevens, 196 Mass. 
280, 82 N. E. 33; State v. Kennedy, 207 Mo. 528, 106 S. W. 57; 
Goldbeck v. Goldbeck, 18 N. J. Eq. 42; Voorhees v. Voorhees' Exrs., 
46 N. J. Eq. 411, 19 Am. St. Eep. 404, 19 Atl. 172; Dunbarton v, 
Franklin, 19 N. H. 257; Eiddle v. Eiddle, 26 Utah, 268, 72 Pac. 1081; 
Holmes v. Holmes, 1 Saw. 99, Fed. Cas. No. 6638. 

Cohabitation not Matrimonial in Character. — Cohabitation which 
will sustain a common-law marriage must be matrimonial in its char- 



Estate of James. 205 

acter; and a matrimonial cohabitation is the living together of a 
man and a woman, ostensibly as husband and wife, with or without 
sexual intercourse between them. Cohabitation consists of a living 
or dwelling together in the same habitation as husband and wife, 
and not merely sojourning or visiting or remaining together for a 
time. Sexual intimacy or illicit living together is not enough: Cox 
V. State, 117 Ala. 103, 67 Am. St. Eep. 166, 23 South. 806, 41 L. E. A. 
760; Letters v. Cady, 10 Cal. 533; Sharon v. Sharon, 79 Cal. 633, 22 
Pac. 26, 131; Kilburn v. Kilburn, 89 Cal. 46, 23 Am. St. Eep. 447, 
26 Pac. 636; Taylor v. Taylor, 10 Colo. App. 303, 50 Pac. 1049; 
Cartwright v. McGown, 121 111. 388, 2 Am. St. Eep. 105, 12 N. E. 737; 
McKenna v. McKenna, 73 El. App. 64; In re Imboden's Estate, 111 
Mo. App. 220, 86 S. W. 263; Voorhees v. Voorhees' Exrs., 46 N. J. 
Eq. 411, 19 Am. St. Eep. 404, 19 Atl. 172; Haley v. Goodheart, 58 N. 
J. Eq. 368, 44 Atl. 193; In re Brush, 25 App. Div. 610, 49 N. Y. Supp. 
803; Lee v. State, 44 Tex. Cr. 354, 72 S. W. 1005, 61 L, E. A. 904; 
Eldred v. Eldred, 97 Va. 606, 34 S. E. 477; Spencer v. Pollock, 83 
Wis. 215, 53 N. W. 490, 17 L. E. A. 848. The essentials of cohabita- 
tion are well stated by the Colorado court in Klipfel v. Klipfel, 41 
Colo. 40, 124 Am. St. Eep. 96, 92 Pac. 26. 

To quote from In re Wallace, 49 N. J. Eq. 530, 25 Atl. 2G0: "Where 
a man and woman constantly live together, ostensibly as man and 
wife, demeaning themselves toward each other as such, and are re- 
ceived into society and treated by their friends and relations as 
having and being entitled to that status, the law will, in favor of 
morality and decency, presume that they have been legally married. 
Such cohabitation and repute is said to be matrimonial, in distinction 
from that occasional, hidden and limited cohabitation and repute 
which marks the meretricious relation. It is always a question 
whether the cohabitation proved is of the character which will raise 
a presumption and make prima facie proof of marriage. At best it 
can do no more, for the presumption may be rebutted." 

Cohabitation Illicit in Its Inception. — A cohabitation between a 
man and woman, illicit in its inception, and so understood by them, 
is presumed to continue illicit until some proof is made of its change 
to a matrimonial cohabitation; therefore no presumption of marriage 
arises from it: Clark v. Cassidy, 64 Ga. 662; Marks v. Marks, 108 
111. App. 371; Pike v. Pike, 112 111. App. 243; Cartwright v. McGown, 
121 111. 388, 2 Am. St. Eep. 105, 12 N. E. 737; Cram v. Burnham, 5 
Me. 213, 17 Am. Dec. 218; Cargile v. Wood, 63 Mo. 501; Cla}i;on 
V. Warden, 4 N, Y. 230; Harbeck v. Harbeck, 102 N. Y. 714, 7 N. 
E. 408; Ahlberg v. Ahlberg, 24 N. Y. Supp. 919; Bates v. Bates, 7 
Misc. Eep. 547, 27 N. Y. Supp. 872; United States Trust Co. v. Max- 
well, 26 Misc. Eep. 276, 57 N. Y. Supp. 53; Bell v. Clarke, 45 Misc. 
Kep. 272, 92 N. Y. Supp. 163; McBean v. McBean, 37 Or. 195, 61 Pac. 
418; Appeal of Hunt, 86 Pa. 294; Appeal of Eeading Fire etc. Ins. Co., 
113 Pa. 204, 57 Am. Eep. 448, 6 Atl. 60; Henry v. Taylor, 16 S. D. 
424, 93 N. W. 641; Cuneo v. De Cuneo, 24 Tex, Civ. App. 436, 59 S. W. 



206 Coffey's Probate Decisions, Vol. 3. 

284; Town of Nortbfield v. Town of PlTmouth, 20 Vt. 582; Eldred v. 
Eldred, 97 Va. 606, 34 S. E. 477; Spencer v. Pollock, 83 Wis. 215, 53 
N. W. 490, 17 L. E. A. 848; Weidenhoft v. Primm (Wyo.), 94 Pac. 453. 

Of course the fact that a cohabitation is meretricious in its incep- 
tion does not preclude the parties from subsequently entering into 
a valid marriage contract and effecting a lawful marriage union: Elzas 
V. Elzas, 171 111. 632, 49 N. E. 717; Foss v. Brown, 151 Mich. 119, 
114 N. W. 873; Swartz v. State, 7 Ohio Dec. 43, 13 Ohio C. C. 62; 
Travers v. Keinhardt, 25 App. D. C. 567. That their relations were 
originally illicit is immaterial so long as their minds subsequently 
meet in the formation of an actual marriage contract: University of 
Mich. V. McGoekin, 62 Neb. 489, 87 N. W. 180, 57 L. K. A. 917. In 
other words, the presumption that a cohabitation adulterous in its 
origin continues to be of that character may be rebutted and proved 
to have become matrimonial, and a lawful common-law marriage es- 
tablished; this fact, that the evil intent of the parties has changed 
and become matrimonial, may be established by direct or circum- 
stantial evidence: Drawdy v. Hesters, 130 Ga. 161, 60 S. E. 451, 15 
L. E. A., N. S., 190; Potter v. Clapp, 203 111. 592, 96 Am. St. Eep. 
322, 68 N. E. 81; Hynes v. McDermott, 91 N. Y. 451, 43 Am. Eep. 
677; Eoberson v. McCauley, 61 S. C. 411, 39 S. E. 570; Edelstein v. 
Brown (Tex. Civ. App.), 95 S. W. 1126. And inasmuch as the law 
itself and all its presumptions deprecate illegal and favor lawful re- 
lations, slight circumstances may be sufficient to establish a change 
from an illicit to a legal relation; and no proof of its time or place 
is indispensable: Adger v. Ackerman, 115 Fed. 124, 52 C. C. A. 568. 
Evidence of marriage is strengthened, however, by the fact that pre- 
viously the parties had no illicit relations: Heymann v. Heymann, 218 
111. 636, 75 N. E. 1079. 

Said the court in Badger v. Badger, 88 N. Y. 546, 42 Am. Eep. 
263: "The rule that a connection, confessedly illicit in its origin, 
or shown to have been such, will be presumed to retain that char- 
acter until some change is established, is both logical and just. The 
force and effect of such a fact is always very great, and we are not dis- 
posed in the least degree to weaken or disregard it: Brinkley v. Brink- 
ley^ 50 N. Y. 198, 10 Am. Eep. 460. Very often the changed charac- 
ter of the cohabitation is indicated by facts and circumstances which 
explain the cause and locate the period of the change, so that in 
spite of the illicit origin the subsequent intercourse is deemed matri- 
monial: Fenton v. Eeed, 4 Johns. 52, 4 Am. Dec. 244; Eose v. Clark, 
8 Paige, 574; Starr v. Peck, 1 Hill, 270; Jackson v. Claw, 18 Johns. 
346. But a change may occur, and be satisfactorily established, al- 
though the precise time or occasion cannot be clearly ascertained. 
If the facts show that there was or must have been a change, that 
the illicit beginning has become transformed into a cohabitation mat- 
rimonial in its character, it is not imperative that we should be able 
to say precisely when or exactly why the change occurred: Caujolle 
V. Ferrie, 23 N. Y. 90. While we have no hesitation about the rule, 
and shall be prompt to apply it in a case which demands such appli- 



Estate of James. 207 

cation, we do not see that the facts before us require it, since they 
fail to establish an illicit origin of the cohabitation as a separate and 
independent fact." 

And in Darling v. Dent, 82 Ark. 76, 100 S. W. 747, it is said: 
"While it is true that, if it be shown that the relations between 
Darling and Mrs. Williams were illicit in the beginning, the burden 
is upon those asserting a valid marriage agreement to show that 
such an agreement was afterward entered into, still there is no pre- 
sumption that the relationship continued to be illicit. It is a matter 
of proof, and not of presumption, whether the relationship continued 
to be illicit, or whether it was changed to a legal and moral status. 
Whatever presumptions are indulged are in favor of the legitimacy of 
such relationship." 

A somewhat stricter rule may be inferred from the following ex- 
tract; "The general rule upon the question of proof of marriage by 
proof of cohabitation, conduct and declaration of the parties is stated 
by a learned judge as follows: The general and ordinary presumption 
of the law is in favor of innocence, in questions of marriage, and of 
legitimacy where children are concerned. Cohabitation is presumed 
to be lawful till the contrary appears. Where, however, the con- 
nection between the parties is shown to have had an illicit origin, 
and to be criminal in its nature, the law raises no presumption of 
marriage: 2 Kent, 87; Jackson v. Claw, 18 Johns. 346; 2 Green- 
leaf on Evidence, sec. 464; Physick's Estate, 2 Phila. 278. The pre- 
sumption against marriage, where the connection between the par- 
ties is shown to have been illicit in origin, may, however, be over- 
come by proofs showing that the original connection has changed 
in its chaiacter, and a subsequent marriage may be established by 
circumstances, without actual proof of a marriage in fact. The cases 
cited by the learned counsel for the respondent in their brief in this 
case fully establish this point. The following cases also illustrate 
the same subject: Starr v. Peck, 1 Hill, 270; Clayton v. Wardell, 4 
N. Y. 230; Caujolle v. Ferrie, 23 N. Y. 90; O'Gara v. Eisenlohr, 38 
N. Y. 296; Foster v. Hawley, 8 Hun, 68. The rule laid down in the 
last case cited is stated as follows: A cohabitation illicit in its origin 
is presumed to be of that character, unless the contrary be proved, 
and cannot be transformed into matrimony by evidence which falls 
short of establishing the fact of an actual contract of marriage. 
Such contract may be proved by circumstances, but they must be 
such as to exclude the inference or presumption that the former re- 
lation continued, and satisfactorily prove that it had been changed 
into that of actual matrimony by mutual consent": Williams v. Will- 
iams, 46 Wis. 464, 32 Am. Eep. 722, 1 N. W. 98. 

Removal of Impediment to Marriage, Followed by Cohabitation. — 
Some authorities take the view that where a man and woman com- 
mence cohabitation when there is a known impediment to their legal 
marriage, such as the existence of a prior undissolved marriage of 
one of them, that their continued cohabitation after the removal of 



208 Coffey's Probate Decisions, Vol. 3. 

the impediment raises no presumption of a subsequent marriage: Edel- 
stein V. Brown, 35 Tex. Civ. App. 625, 80 S. W. 1027. Thus, it has 
been affirmed that a valid marriage will not be presumed to have 
taken place between parties who lived together as husband and wife 
under a ceremony of marriage, when the man intended to deceive the 
wife by a pretended marriage, and knew that he was not compe- 
tent to marry, because the decree purporting to divorce him from his 
wife was a nullity, although the parties to the second marriage con- 
tinued to live together as husband and wife after the first wife had 
procured a valid divorce from the husband, and therefore after he 
had capacity to contract a valid marriage: Collins v. Voorhees, 47 N. 
J. Eq. 315, 555, 24 Am. St. Eep. 412, 20 Atl. 676, 22 Atl. 1054, 14 L. 
E. A. 364. The fact that a negro woman continues to cohabit with 
a white man after her emancipation from slavery, as she had done 
before, raises no presumption of marriage if they subsequently separate 
and if their marriage would offend the criminal statutes: Keen v. 
Keen, 184 Mo. 358, 83 S. W. 526. 

Some authorities declare that where an attempted marriage is void 
by reason of the disability of one of the parties, a subsequent mar- 
riage will be presumed after the disability has been removed, where 
the matrimonial relationship is continued, and the parties hold them- 
selves out, and are regarded and treated by their relatives and 
friends, as husband and wife: Blanchard v. Lambert, 43 Iowa, 228, 
22 Am. Eep. 245; Barker v. Valentine, 125 Mich. 336, 84 Am. St. 
Eep. 578, 84 N W. 297, 51 N. "W. 787; Bechtel v. Barton, 147 Mich. 
318, 110 N. W. 935. 

There appears to be no doubt that if parties in good faith marry 
when in fact a legal impediment exists to their marriage, and they 
continue to cohabit as man and wife after the removal of the im- 
pediment to their lawful union, the law presumes a common-law mar- 
riage: Cartwright v. McGown, 121 HI. 388, 2 Am. St. Eep. 105, 12 
N. E. 737; Land v. Land, 206 111. 288, 99 Am. St. Eep. 171, 68 N. E. 
1109; Teter v. Teter, 88 Ind. 494; Busch v. Supreme Tent of Knights 
of Maccabees of the World, 81 Mo. App. 562; Bull v. Bull, 29 Tex. 
Civ. App. 364, 68 S. W. 727; United States v. Hays, 20 Fed. 710. 
The presumption arises immediately after the obstacle is removed: 
Adger v. Ackernian, 115 Fed. 124, 52 C. C. A. 568. And even though 
the removal is unknown, continued cohabitation thereafter evidences 
consent to live in wedlock: Eaton v. Eaton, 66 Neb. 676, 92 N, W. 995, 
60 L. E. A. 605. 

In other words, when a man and woman in good faith do what they 
can to render their union matrimonial, but the marriage is ineffectual 
because one of them is under a legal disability on account of a prior 
marriage supposed to be (but not) dissolved; and they live together 
as husband and wife after the disability is removed, supposing and 
intending themselves to be such, they are husband and wife from the 
date of the removal of the disability: Poole v. People, 24 Colo. 510, 
65 Am. St. Eep. 245, 52 Pac. 1025; Manning v. Spurck, 199 111. 447, 



Estate op James. 209 

65 N. E. 342; Schnehart v. Schuchart, CI Kan. 597, 78 Am. St. Eop. 
342, 60 Pae. 311, 50 L. R. A. 180; Chamberlain v. Chamberlain, G8 N. 
J. Eq. 414, 736, 111 Am. St. Rep. 658, 59 Atl. 813, 62 Atl. 680, 3 L. 
R. A., N. S., 244; Taylor v. Taylor, 71 N. Y. Supp. 411, 63 App, Div. 231. 

If the woman is in good faith, while the man conceals an impedi- 
ment to his marriage, then it would seem that a marriage will be 
presumed in her favor from cohabitation after the removal of the 
impediment: Robinson v. Ruprecht, 191 111. 424, 61 N. E. 631; Flana- 
gan V. Flanagan, 122 Mich. 386, 81 N. W. 258; Barker v. Valentine, 
125 Mich. 336, 84 Am. St. Rep. 578, 84 N. W. 297, 51 L. R. A. 787. 
"There is a well-defined distinction between illicit relations, forbid- 
den because of an undisclosed disability on the part of one of the 
parties thereto, and such relations as are mutually meretricious, in- 
volving on the part of the woman knowledge that its character is 
not, and is not intended to be, matrimonial": In re Schmidt, 42 
Misc. Rep. 463, 87 N. Y. Supp. 428. "The rule ought to be that 
where one person is free to enter into the matrimonial relation and 
does so in good faith, but the other party is incapable of entering 
into such relation because of a former wife or husband living, or other 
impediment, when such impediment is removed, if the parties con- 
tinue matrimonial cohabitation, continue to introduce and recognize 
each other as husband and wife, and are so recognized by their rela- 
tives, friends, and by society, it ought to be held that from such 
moment they are actually husband and wife, and that, under such 
circumstances, it is of no importance that a formal agreement to live 
together as husband and wife was not entered into, or that either 
did not know that the impediment to such an agreement had been 
removed, when, in fact, it had been so removed, and both parties 
were competent to enter into the matrimonial state": In re Wells' 
Estate, 108 N. Y. Supp. 164, 123 App. Div. 79. 

Manifestly, an express agreement to marry, followed by cohabita- 
tion in pursuance thereof, does not constitute a common-law marriage 
so long as there exists a prior valid marriage between one of the 
parties and a third person: Blanks v. Southern Ry. Co., 82 Miss. 703, 
35 South. 570. r 

Cohabitation not Exclusive in Its Character. — Cohabitation, in order 
to form the basis of marriage, must be exclusive in its character. 
It is one of the essential obligations of a valid marriage contract 
that it binds the parties to keep themselves separate and apart from 
all others and cleave to each other during their joint lives. Where 
the evidence shows that a man cohabited with two women, the pre- 
sumed innocence of either cohabitation must fall, for it is impossible 
for two marriages to exist together, and neither is by such evidence 
established: Klipfel v. Klipfel, 41 Colo. 40, 124 Am. St. Rep. 96, 92 
Pac. 26; Riddle v. Riddle, 26 Utah, 268, 72 Pac. 1081. 

Reputation of Marriage as Evidence. — Where a man and woman 
have held themselves out to the world as husband and wife, this is 
strong, persuasive evidence that they are married: Drawdy v. Hesters, 
Prob. Dec, Vol. Ill —14 



210 Coffey's Probate Decisions, Vol. 3. 

130 Ga. 161, 60 S. E. 451, 15 L. E. A., N. S., 190; Alden v. Clnireh, 106 
m. App. 347; Pegg v. Pegg (Iowa), 115 N. W. 1027; Hoffman v. Simp- 
son, 110 Mich. 133, 67 N. W. 1107; State of Maryland v. Baldwin, 
112 U. S. 490, 5 Sup. Ct. 278, 28 L. Ed. 822; Adger v. Acker- 
man, 115 Fed. 124, 52 C. C. A. 568. Indeed, the reputation of the 
parties as married in the community in which they live may be one 
of the essentials of a common-law marriage, for cohabitation without 
a contract of marriage or without a general reputation of marriage 
can hardly amount to a common-law marriage: Sharon v. Sharon, 75 
Cal. 1, 16 Pae. 345; Sharon v. Sharon, 79 Cal. 633, 22 Pac. 26, 131; 
; In re Terry's Estate, 58 Minn. 208, 59 N. W. 1013; Hulett v. Carey, 
' 66 Minn. 327, 61 Am. St. Eep. 419, 69 N. W. 31, 34 L. E. A. 384; 
Heminway v. Miller, 87 Minn. 123, 91 N. W. 428. "Where parties 
live together ostensibly as man and wife, demeaning themselves to- 
ward each other as such, and are received into society and treated 
by their friends and relations as having and being entitled to that 
status, the law will, in favor of morality and decency, presume that 
they have been legally married. Indeed, the most usual way of 
proving marriage, except in actions for criminal conversation and in 
prosecutions for bigamy, is by general reputation, cohabitation and 
acknowledgment": Travers v. Reinhardt, 205 U. S. 423, 27 Sup. Ct. 
563, 51 L. Ed. 865. 

What Constitutes Reputation. — When a marriage contract is kept 
secret, this does not invalidate it; there may be an assumption of 
marital relations without their being made public. But secrecy in an 
alleged marriage is a circumstance to be considered in determining 
whether such a marriage in fact exists: Cargile v. Wood, 63 Mo. 501; 
Eose v. Clark, 8 Paige, 574; Commonwealth v. Stump, 53 Pa. 132, 
' 91 Am. Dec. 198; Stans v. Baitey, 9 Wash. 115, 37 Pac. 316. 

"In order to constitute evidence from which a marriage may be 
inferred, the origin of the cohabitation must have been consistent 
with a matrimonial intent, and the cohabitation must have been of 
such a character, and the conduct of the parties such, as to lead to 
the belief in the community that a marriage existed, and there^jy to 
create the reputation of a marriage": W^illiams v. Herrick, 21 E. I. 
401, 79 Am. St. Eep. 809, 43 Atl. 1036. "A marriage is a civil con- 
tract, and may be made per verba de praesenti — that is, by words in 
the present tense, without attending ceremonies, religious or civil. 
Such is the law of many states in the absence of statutory regula- 
tion. It is the doctrine of the common law. But, where no such 
ceremonies are required and no record is made to attest the mar- 
riage, some public recognition of it is necessary as evidence of its 
existence. The protection of the parties and their children and con- 
siderations of public policy require this public recognition; and it 
may be made in any way which can be seen and known by men, such 
as living together as man and wife, treating each other and speak- 
ing of each other in the presence of third parties as being in that 
relation, and declaring the relation in documents executed by them 



Estate op James. 211 

wiilRt living togetTier, such as deeds, wills and other formal in- 
struments. From such recognition the reputation of being married 
will obtain among friends, associates and acquaintances, which is of 
itself evidence of a persuasive character": Maryland v. Baldwin, 112 
U. S. 490, 5 Sup. Ct. 278, 28 L. Ed. 822. 

But reputation to prove marriage must be general and uniform in 
the community where the parties live: it cannot be founded on di- 
vided or singular opinion: Powers v. Charbmury's Exrs., 35 La. Ann. 
630; Ashford v. Metropolitan Life Ins. Co., 80 Mo. App. 638; In re 
Yardley's Estate, 75 Pa. 207; Williams v. Herrick, 21 R. I. 401, 79 
Am. St. Rep. 809, 43 Atl. 1036; Eldred v. Eldred, 97 Va. 606, 34 S. E. 
477. To quote from the supreme court of Wyoming: "The general 
reputation in the community where the parties reside as to whether 
or not they are husband and wife is competent evidence as tending 
to prove marriage. It is in the nature of a verdict of the community 
upon their relations, arrived at from observing their conduct, their 
manner of life, their deportment toward each other and the com- 
munity, and their declarations. It is the general impression or be- 
lief created in the minds of the people from these things which con- 
stitutes the general reputation, which may be shown in evidence as 
tending to raise the presumption of marriage or the contrary. To b« 
of any value as evidence such reputation must be general and uni- 
form": Weidenhoft v. Primm (Wyo.), 94 Pac. 453, citing White v. 
White, 82 Cal. 427, 23 Pac. 276, 7 L. R. A. 799; Jackson v. Jackson, 
82 Md. 17, 33 Atl. 317, 34 L. R. A. 773; Arnold v. Chesebrough, 46 
Fed. 700. 

"Reputation consists of the belief and speech of the people who 
have an opportunity to know the parties and have heard of and ob- 
served their manner of living": Cargyle v. Wood, 63 Mo. 501. "By 
general reputation and repute is meant the understanding among the 
neighbors and acquaintances with whom the parties associate in their 
daily life, that they are living together as husband and wife and not 
in meretricious intercourse. In its application to the fact of mar- 
riage it is more than mere hearsay. It involves and is made up of 
social conduct and recognition, giving character to an admitted and 
unconcealed cohabitation": Klipfel v. Klipfel, 41 Colo. 40, 124 Am. St. 
Rep. 96, 92 Pac. 26; Badger v. Badger, 88 N. Y. 546, 42 Am. Rep. 263. 

Presumption from Coha.bitation and Reputation. — Where a man and 
woman live together as husband and wife, and so acknowledge them- 
selves to, and are so reputed among, relatives and acquaintances, these 
facts are sufficient prima facie to establish a marriage, although there 
is an entire failure of evidence of a formal ceremony. In other words, 
a presumption of marriage arises from cohabitation as husband and 
wife and reputation of marriage in the community: Bynon v. State, 
117 Ala. 80, 67 Am. St. Rep. 163, 23 South. 640; Moore v. Ileineke, 
119 Ala. 627, 24 South. 374; Tarrt v.. Negus, 127 Ala. 301, 28 South. 
713; Klipfel v. Klipfel, 41 Colo. 40, 124 Am. St. Rep. 96, 92 Pac. 26; 
State V. Wilson, 5 Penne. (Del.) 77, 62 Atl. 227; Myatt v. Myatt, 44 



212 Coffey's Probate Decisions, Vol. 3. 

111. 473; Nossaman t. Nossaman, 4 Ind. 648; Smith v. Fuller (Iowa), 
108 N. W. 765; Bartee v. Edmunds, 29 Ky. Law Eep. 872, 96 S. W. 
535; Holmes v. Holmes, 6 La. 463, 26 Am. Dec. 482; Jones v. Jones, 
45 Md. 144; Inhabitants of Newburyport v. Inhabitants of Boothbay, 
9 Mass. 414; Sorensen v. Sorensen, 68 Neb. 483, 94 N. W. 540, 98 N. 
W.'837, 100 N. W. 930, 103 N. W. 455; Cramsey v. Sterling, 97 N. 
Y. Supp. 1082, 111 App. Div. 568; Thompson v. Nims, 83 Wis. 2, 53 
N. W. 502, 17 L. R. A. 847. And this presumption is one of the 
strongest known to the law; it can be overcome only by cogent proof: 
Plattner v. Plattner, 116 Mo. App. 405, 91 S. W. 457; Hynes v. Mc- 
Dermott, 91 N. Y. 451, 43 Am. Rep. 677; Stevens v. Stevens, 56 N. 
J. Eq. 488, 38 Atl. 460; note to Pittinger v. Pittinger, 89 Am. St. Rep. 
198. 

Nevertheless cohabitation and reputation do not constitute mar- 
riage, but simply are evidence thereof. The presumption of marriage 
which arises from them, however strongly favored by the law, is re- 
buttable: Myatt V. Myatt, 44 111. 473; Marks v. Marks, 108 111. App. 
371; Boone v. Purnell, 28 Md. 607, 92 Am. Dec. 713; Adair v. Mette, 
156 Mo. 496, 57 S. W. 551; State v. St. John, 94 Mo. App. 158, 68 S. 
W. 374; Olsen v. Peterson, 33 Neb. 358, 50 N. W. 155; Peck v. Peck, 
12 R. L 485, 34 Am. Rep. 702; Allen v. Hall, 2 Nott. & McC. 114, 10 
Am. Dec. 578; Eldred v. Eldred, 97 Va. 606, 34 S. E. 477. 

Separation of Parties. — The presumption of marriage which arises 
from cohabitation and reputation is rebutted where the parties 
separate and one of them, while the other is known to be alive, 
marries or cohabits with a third person: Weatherford v. Weatherford, 
20 Ala. 548, 56 Am. Dec. 206; Moore v. Heineke, 119 Ga. 627, 24 
South. 374; In re Beverson's Estate, 47 Cal. 621; In re Maher's Es- 
tate, 183 111. 61, 56 N. E. 124; Jones v. Jones, 45 Md. 144; Jones 
V. Jones, 48 Md. 391, 30 Am. Rep. 466. But where a common-law 
marriage is almost conclusively established by the evidence, the fact 
that subsequently both parties again marry without having obtained 
a divorce, the marriage of the woman being after the man had been 
absent and unheard of for over seven years, is not conclusive against 
the common-law marriage: Smith v. Fuller (Iowa), 108 N. W. 765. 

Subsequent Ceremonial Marriage. — A subsequent ceremonial mar- 
riage between the parties is not inconsistent with a prior common- 
law marriage between them, and does not necessarily overcome the 
presumption thereof from matrimonial cohabitation, repute, and the 
declarations and acts of the parties: Simmons v. Simmons (Tex. Civ. 
App.), 39 S. W. 639; Shank v. Wilson, 33 Wash. 612, 74 Pac. 812; 
Adger v. Ackerman, 115 Fed. 124, 52 C. C. A. 568. But the fact that 
a ceremonial marriage is performed, after many years of cohabita- 
tion, on the advice of a friend who deems it necessary, is evidence 
that a general and uniform reputation of marriage is lacking: Will- 
iams V, Herrick, 21 R. I. 401, 79 Am. St. Rep. 809, 43 Atl. 1036. 



Estate op James. 213 

Statutes Prescribing Formalities of Marriage. — Statutes prescribing 
the procurement of a license and other formalities to be observed in 
the solemnization of marriage do not render invalid a marriage 
entered into according to the common law, but not in conformitjr 
with the statutory formalities, unless the statutes themselves expressly 
declare such marriages invalid, and this although the statutes pre- 
scribe penalties for ignoring their provisions. Such statutes have 
uniformly been held directory only: See the note to State v. Lowell, 
79 Am. St. Kep. 361; Campbell's Admr. v. Gullatt, 43 Ala. 57; Askew 
V. Dupree, 80 Ga. 173; Eenfrow v. Eenfrow, 60 Kan. 277, 72 Am. St. 
Rep. 350, 56 Pac. 534; Dumaresly v. Fishly, 10 Ky. (3 A. K. Marsh.) 
368; State v. Bittick, 103 Mo. 183, 23 Am. St. Rep. 869, 15 S. W. 
325, 11 L. R. A. 587; Snuffer v. Karr, 197 Mo. 182, 94 S. W. 983; State 
V. Zichfeld, 23 Nev. 304, 62 Am. St. Rep. 800, 46 Pac. 802, 34 L. R. 
A. 784; Reaves v. Reaves, 15 Okl. 240, 82 Pac. 490, 2 L. R. A., N. S., 
353; Rodebaugh v. Sanks, 2 Watts, 9; Burnett v. Burnett (Tex. Civ. 
App.), 83 S. W. 238; Burks v. State (Tex. Civ. App.), 94 S. W. 1040; 
Meister v. Moore, 96 U. S. 76, 24 L. Ed. 826; Mathewson v. Phoenix 
Iron Foundry, 20 Fed. 281. 

In some states, however, the statutes have expressly taken away the 
right to contract a common-law marriage, and have made a substantial 
compliance with the statutory formalities essential to a valid mar- 
riage: See the authorities cited in the second succeeding paragraph. 

Jurisdictions Where Common-law Marriages Recognized. — The val- 
idity of common-law marriages has been recognized in the juris- 
dictions indicated by the following citations: Tarrt v. Negus, 127 
Ala. 301, 28 South, 713; Darling v. Dent, 82 Ark. 76, 100 S. W. 747; 
Klipfel V. Klipfel, 41 Colo. 40, 124 Am. St. Rep. 9G, 92 Pac. 26; 
Askew V. Dupree, 30 Ga. 173; Drawdy v. Hesters, 130 Ga. IGl, 60 S. 
E. 451, 15 L. R. A., N. S., 193; Hiler v. People, 156 111, 511, 47 Am. 
St. Rep. 221, 41 N. E. 181; Franklin v. Lee, 30 Ind. App. 31, 62 N. E. 
78; Davis v. Pryor, 3 Ind. Ter. 396, 58 S. W. 660; Porter v. United 
States (Ind. Ter.), 104 S. W. 105; Smith v. Fuller (Iowa), 108 N. W, 
765; People v. Mendenhall, 119 Mich. 404, 75 Am. St. Rep. 408, 78 N, 
W. 325; Supreme Tent etc, v. McAllister, 132 Mich. 69, 102 Am. St. Rep. 
382, 92 N. W, 770; Hulett v. Carey, 66 Minn, 327, 61 Am. St. Rep. 419, 
69 N, W. 31, 34 L, R, A, 384; Hargroves v. Thompson, 31 Miss. 211; 
Floyd V. Calvert, 53 Miss. 37; In re Imboden's Estate, 128 Mo. App. 
555, 107 S. W, 400; Eaton v. Eaton, 66 Neb. 676, 92 N. W. 995, 60 
L. R, A. 605; State v, Zichfeld, 23 Nev, 304, 62 Am, St. Rep. 800, 
46 Pac. 802, 34 L. R. A. 784; Town of Londonderry v. Town of 
Chester, 2 N. H. 268, 9 Am. Dec, 61; Voorhees v, Voorhees' Exrs., 
46 N. J. Eq. 411, 19 Am. St. Rep. 404, 19 Atl. 172; Clark v. Clark, 
52 N. J. Eq. 650, 30 Atl. 81; Mullaney v. Mullaney, 65 N. J. Eq. 384, 
54 Atl, 1086; Atlantic City R, R, Co. v. Goodin, 62 N. J. L, 394, 72 
Am, St, Rep. 652, 42 Atl. 333, 45 L. R. A, 671; Tummalty v, Tum- 
malty, 3 Bradf, Sur. 369; Hicks v. Cochran, 4 Edw. Ch. 107; Geigor 
T. Ryan, 108 N. Y. Supp. 13, 123 App. Div. 722; In re Wells' Estate, 



214 Coffey's Probate Decisions, Vol. 3. 

108 N. T. Supp. 164, 123 App. Div. 79; Carmichael v. State, 12 Ohio 
St. 553; Eeaves v. Reaves, 15 Okl. 240, 82 Pac. 490, 2 L. R. A., N. 
S., 353; Estate of McCausland, 213 Pa. 189, 110 Am. St. Rep. 540, 
62 Atl. 780; Williams v. Herrick, 21 R. I. 401, 79 Am. St. Rep. 809, 
43 Atl. 1036; Ex parte Romans, 78 S. C. 210, 58 S. E. 614; Jacksoq 
V. Banister (Tex. Civ. App.), 105 S. W. 66; Burks v. State (Tex. 
Civ. App.), 94 S. W. 1040; Riddle v. Riddle, 26 Utah, 268, 72 Pac. 
1081; Hilton v. Roylan«e, 25 "Utah, 129, 95 Am. St. Rep. 821, 69 Pae. 
660, 58 L. R. A. 723; Travers v. Reinhardt, 25 App. D. C. 567. 

Jurisdictions Where not Recognized. — The validity of common-law 
marriages has been denied in the jurisdictions indicated by the follow- 
ing citations: Norman v. Norman, 121 Cal. 620, 66 Am. St. Rep. 74, 
54 Pac. 143, 42 L. R. A. 343; Estill v. Rogers, 64 Ky. (1 Bush) 62; 
Robinson v. Redd's Admr. (Ky.), 43 S. W. 435; Johnson's Heirs v. 
Raphael, 117 La. 967, 42 South. 470; Denison v. Denison, 35 Md. 361; 
Norcross v. Norcross, 155 Mass. 425, 29 N. E. 506; Dunbarton v. Frank- 
lin, 19 N. H. 257; Holmes v. Holmes, 1 Saw. 99, Fed. Gas. No. 6638; 
Smith V. North Memphis Sav. Bank, 115 Tenn. 12, 89 S. W. 392; 
Offield V. Davis, 100 Va. 250, 40 S. E. 910; Morrill v. Palmer, 68 Vt. 1, 
33 Atl. 829, 33 L. R. A. 411; In re McLaughlin's Estate, 4 Wash. 570, 
30 Pac. 651, 16 L. R. A. 699; Nelson v. Carlson, 48 Wash. 651, 94 Pae. 
477; Beverlin v. Beverlin, 29 W. Va. 732, 3 S. E. 36. 



In the Matter of the Estate of LIARTIN CLARK, De- 
ceased. 

[No. 6,203; decided 1908.] 

Executors — Computation of Commissions. — Under section 1618 of 
the Code of Civil Procedure, when part of the estate over $20,000 
comes under the provision as to labor involved, commissions should 
be computed on it at the one-half rate, and on the balance at full 
rates. For the property not distributed in kind, and for property 
involving more "labor than the custody and distribution of the same," 
full commissions are allowed; for that distributed in kind, and in- 
volving no labor beyond its custody and distribution, half commis- 
sions on the excess over $20,000 is ample compensation. 

Executors — Commissions Wiien No Labor Beyond "Custody and Dis- 
tribution." — Property consisting of money deposited in bank or of 
unimproved land "involves no labor beyond the custody and dis- 
tribution of the same"; there must be active management and atten- 
tion to constitute "more than mere custody and distribution." 



Estate of Cl^vrk. 215 

COFFEY, J. In the above-entitled matter the following 
property is distributed in kind: 

Money in bank $28,606.15 

Money collected from rents 2,870.57 

Personal property 50.00 

Real estate, improved 4,000.00 

Real estate, improved 18.000.00 

Real estate, unimproved 3,000.00 



$56,526.72 

It will be observed that the money in bank and the unim- 
proved real estate amount to the sum of $31,606.15, while the 
improved real estate, rents collected and personal property 
amount to the sum of $2-4,920.57. 

The question then arises whether the commissions on the 
$31,606.15 shall be computed at full rates, or at one-half of 
the rate under section 1618, Code of Civil Procedure. 

The section referred to provides a scheme for the allowance 
of commissions to executors or administrators. An allowance 
of seven per cent is made on the first $1,000; four per cent 
on the next $9,000 ; three per cent on the next $10,000 ; two 
per cent on the next $30,000; one per cent on the next 
$50,000, and one-half of one per cent on all over $100,000. 

In the construction of a statute the object of the lawmaker 
must be steadily borne in mind. A glance at the various 
amendments to section 1618, Code of Civil Procedure, will 
show that the object of legislation in amending the act has 
been to lower the rate of commissions especially in large es- 
tates, so as to protect estates against excessive costs of admin- 
istration. It is well known that under former laws the 
"commissions" in large estates were far beyond the value of 
the services rendered, and amounted frequently to almost 
small fortunes; and for that reason a sliding scale, so to 
speak, was established by law. Yet, under the present system 
(the court being authorized to allow extra compensation in 
proper cases), executors are well compensated, as a general 
rule, and judges eminent for their ability and experience are 
of the opinion that the present rate is, at least, exceedingly 
liberal, if not excessive. 



216 Coffey's Probate Decisions, Vol, 3. 

Section 1618, after fixing certain rates of computation for 
commissions, contains the following provision, inserted in 

1881 : 

"Where the property of the estate is distributed in kind, 
and involves no labor beyond the custody and distribution of 
the same, the commissions shall be computed on all the estate 
above the value $20,000, at one-half of the rates fixed in this 
section." 

The legislature recognized the difference between the value 
of services where the estate involved labor beyond the custody 
and distribution of property distributed in kind, and where 
no such labor w^as involved. It allowed full commissions in 
the latter case up to $20,000 — thus preventing any hardship 
on the executor or administrator — and only one-half commis- 
sions on all over $20,000. This amendment to the section was 
made in furtherance of the object of making the expenses of 
administration more reasonable, and at the same time preserv- 
ino- the rights of the executor or administrator to a fair com- 
pensation for his services. 

When the legislature provided that "where the property of 
the estate is distributed in kind, and involves no labor beyond 
the custody and distribution of the same," commissions on all 
over $20,000 should be computed at one-half of the rates, etc., 
did it mean that the whole estate, and every part and parcel 
thereof, should be distributed in kind, and also involve no 
labor beyond the custody and distribution of the same, to 
come under the reduction ; or did it mean that the reduction 
should be made as to that part which is distributed in kind, 
and involves no labor beyond the custody and distribution of 
the same? (Of course, the excess over $20,000 is referred 
to.) 

To illustrate : Suppose the estate is valued at $100,000, and 
consists of money in bank and bonds to be distributed in 
kind, to the value of $99,000, and real estate valued at $1,000. 
The real estate involved more labor than "the custody and 
distribution of the same," but the $99,000 in money and 
bonds did not. If full commissions should be allowed on 
$80,000 (the excess over $20,000), in the case supposed, be- 
cause of the real estate valued at $1,000, the amendment is 
practically a dead letter. There is not one estate in five hun- 



Estate of Clark. 217 

dred, but what some small part involves more labor than the 
custody and distribution of the same. Bearing in mind the 
policy of the legislature in reducing commissions, the fair 
construction of the statute is, that when part of the estate 
over $20,000 comes under the provision as to labor involved, 
commissions should be computed on it at the one-half rate, 
and on the balance at full rates. For the property not dis- 
tributed in kind, and for property involving more "labor 
than the custody and distribution of the same" full commis- 
sions are allowed; for that distributed in kind, and involving 
no labor beyond its custody and distribution, half commis- 
sions on the excess over $20,000 is ample compensation. 

In the Estate of Cudworth, 133 Cal. 462, 65 Pac. 1041, the 
supreme court, in affirming the decree of this court, quotes 
from the findings (italics ours) : "That the property of the 
estate of said decedent, and the care, management and admin- 
istration thereof by said executor, has necessarily involved, 
and the said executor has properly bestowed and expended 
thereon, labor heyond the mere custody and distribidion of 
the same"; and held that the finding was supported by the 
evidence. 

But in the case in hand there is no such finding as yet. 

The Estate of Towne, 143 Cal. 508, 77 Pac. 446, was a 
case in which it became necessary for the executor to obtain 
a license from the probate court of Essex county, Massachu- 
setts, to collect moneys deposited by the deceased in five 
different savings banks therein. He also took charge and 
control of the property in Marin county, where the will was 
probated, collected rents, paid taxes, insured the buildings, 
made necessary repairs, cared for the trees, etc., and the 
court say: "All this involved attention, time and labor on 
the part of the executor in behalf of the estate; something 
more than mere custody and distribution. It was active 
management It was management and attention, how- 
ever, beyond the mere labor of custody and distribution of 
the estate " (Italics ours.) 

This case implies that there must be active management 
and attention, to constitute "more than mere custody and 
distribution." 



218 Coffey's Probate Decisions, Vol. 3. 

In the case at bar, the money in banks (presumed to 
be savings banks) amounts to $28,606.15, That money 
required, and can require, no active management and 
attention. The executor need not go to the banks before, 
drawing the money to pay over on final distribution, except 
once in each six months to have dividends entered on the 
passbooks. His only "labor" is keeping the passbooks, and 
having the dividends entered thereon — the banks "do the 
rest." 

And so it is with the unimproved property, where not 
rented. There are no rents to collect, no buildings to. insure. 
no repairs to be made — only taxes to pay. 

The following computation of commissions is correct: 

On $1,000.00 at 7% $ 70.00 

On 9,000.00 at 4% 360.00 

On 10,000.00 at 3% 300.00 

On 4,920.57 at 2% 98.41 

$24,920.57 

On $25,079.43 at 1% (half rates) 250.79 

On 6,526.72 at 1/2% (half rates) 32.63 



$56,526.72 $1,111.83 

The $24,920.57 is made up of the first $20,000.00 and $4,- 
920.57, of the balance of the estate on which the executor is 
entitled to full commissions. 

The $25,079.43 is the balance of "the next $30,000.00" 
mentioned in section 1618, Code of Civil Procedure, and com- 
missions are computed at only half rate, viz., one per cent. 

The remaining $6,526.72 is part of the "next $50,000.00" 
mentioned in the section, and commissions are computed at 
half rate, viz., one-half of one per cent. 



Estate of Fargo. 219 



In the Matter of the Estate of JEROME B. FARGO, 

Deceased. 

[No. 16,881; January 31, 1903.] 

Family Allowance. — It Seems that Minor Grandchildren, as well as 
minor children, may constitute the "family" for whom an allowance 
may be made from the estate of the deceased ancestor. 

Family Allowance — Conclusiveness of Order. — An order for a family 
allowance, though erroneous, becomes conclusive if not appealed from. 

Executors — Pasnnent of Stock Assessments. — The payment by an 
executor of assessments on speculative shares of stock purchased by 
his testator is not encouraged by courts, and usually is at his hazard, 
and justified only by a successful issue of the investment. 

William M. Madden, for the plaintiffs. 

Eugene W. Levy and Andrew G. Maguire, for the creditors. 

COFFEY, J. Objections by defendant to certain expendi- 
tures made by deceased executor, Calvin F. Fargo, in the 
administration of the estate of Jerome B, Fargo (1) to "Mrs. 
Fish on account of family allowance," and (2) for assess- 
ments on shares of stock of the Home Gold Mining Company. 

The first item was paid under an order obtained upon a 
petition preferred by one Jennie F. Fish, which recited that 
she was a daughter of Jerome B. Fargo, deceased, and was 
then about forty-one years of age, and that during all of 
her life and up to and at the time of his death she lived and 
resided with him, and was entirely supported, maintained and 
cared for by him; that she was the mother of four minor 
children, issue of her marriage with Frank Fish, from v/hom 
she had been divorced for many years; that the names of the 
children were Jerome F., Henry K., George K., and Dudley 
F. Fish, aged respectively nineteen, eighteen, fifteen, and 
twelve years; that she and her said children, at the time of 
the death of said Jerome B. Fargo, and from their birth and 
during all their life, had lived and resided with him as and 
constituted and were his family, and were entirely supported, 
cared for, and maintained by him as his family, and were 
entirely dependent on him j that his estate had been appraised 



220 Coffey's Probate Decisions^ Vol. 3. 

at the sum of $40,000; that she had not nor had the said 
minors any money or means whatever wherewith to support 
or maintain themselves; that during his lifetime the cost and 
expenses of maintaining and supporting his said family ex- 
ceeded $500 per month; that the sum of $200 per month 
would be a reasonable sum to be allowed to said family for 
their support and maintenance, and she asked that a family 
allowance to that amount from the date of his death, January 
5, 1896, be made and paid out of the funds of the estate by 
the executor. An order vras accordingly made on the seven- 
teenth day of April, 1896, finding the facts as stated in the 
petition, and concluding that the petitioner and said children 
constituted the family of decedent, and were his surviving 
family, and as such entitled to a family allowance. This 
order was obtained after a hearing in open court and the 
taking of the oral testimony of the petitioner on the four- 
teenth day of April, 1896, as appears by the minutes thereof, 
and the sum allowed was $200 per month, which was ordered 
to be paid by the executor to said petitioner out of the funds 
of the estate to be used and applied by her for the mainte- 
nance and support of said minors and said surviving family 
of the decedent. 

This order and the payments made thereunder are now 
assailed by certain creditors intervening, for the reason that 
the items charged in said account as family allowance paid to 
Mrs. Fish are not proper or legal charges against said estate, 
because she is not a widow or minor child of the decedent 
and not entitled by law to a family allowance out cf said 
estate ; and these creditors contend that the order is void upon 
its face, and the court never had any jurisdiction, as the 
family allowance can only be for the benefit of the widow or 
minor children of deceased. 

The statute law on this subject is gathered in chapter 5, 
article 1, title 11, part 3, sections 1464-1470, Code of Civil 
Procedure, "Of the Provision for the Support of the Family," 
in which it is provided that when a person dies leaving a 
widow or children they are entitled to a reasonable provision 
for their support, to be allowed by the superior court or a 
judge thereof, and if the amount originally set apart be insuffi- 
cient, the court or judge must make such reasonable allowance 



Estate op Fargo. 221 

for the maintenance of the family as shall be necessary, ac- 
cording to their circumstances, during the progress of the 
settlement of the estate, which, in case of an insolvent estate, 
must not be longer than one year after the grant of letters. 

The order in question, it is claimed by plaintiffs, is valid 
under section 1466, Code of Civil Procedure, because it was 
for the maintenance of the family of the decedent, within the 
meaning of the statute, as rationally interpreted and con- 
strued, which would include these minors, and plaintiffs draw 
on other statutory provisions to enforce their reasoning that 
the word "children" should be held to include grandchildren. 
In section 1465, Code of Civil Procedure, the court is author- 
ized to set apart for the use of the surviving husband or wife 
or, if he or she be dead, to the minor children of the decedent, 
all the property exempt from execution, including the home- 
stead selected, designated and recorded. Now, among the 
persons upon whose application a homestead is authorized to 
be selected, designated and recorded, and such "head of 
family" is expressly defined by the statute as "including 
within its meaning," are "every person who has been resid- 
ing on the premises with him or her, and under his or her 
care and maintenance, either (1) his or her minor child or 
minor grandchild": Civ. Code, sees. 1260, 1261. In other 
words, minor grandchildren, as well as minor children, may 
in effect constitute the "family" for which one can lawfully 
claim a homestead, and why not, by parity of reasoning, a 
family allowance, which is comprehended within the same 
statutory system 1 But assuming, what this court might have 
held as an original proposition, that the word "children," 
as used in the statute here in question, cannot be construed as 
embracing "grandchildren," but that it comprises only the 
immediate "children" of decedent by nature or by adoption, 
it is claimed by plaintiffs that advantage may not now be 
taken of any error in that behalf because the order granting 
this family allowance not having been appealed from or in 
any way reversed, set aside or modified is now final and con- 
clusive. The order making the family allowance in this case 
necessarily involved a determination either express or implied 
as to its subject matter and statutory propriety. It appears 
that there was a hearing in open court and an oral examina- 



222 Coffey's Probate Decisions, Vol. 3. 

tion and a consequent judgment which carries with it all pre- 
sumptions and intendments in favor of its validity. It must- 
be presumed in its favor that its beneficiaries were within 
the scope of the statute. The question whether they were the 
minor children of decedent or not was a question of fact nec- 
essarily submitted to the court for determination upon the 
application for the allowance, and the court had jurisdiction 
to determine. Moreover, if the order for the allowance was 
made solely on the ground that, as a matter of law, such 
allowance was authorized because the word "children" in the 
statute is to be interpreted as including "grandchildren," or 
for some other reason, this was a question clearly within the 
jurisdiction of the court. Whether the question presented 
was one of fact or law, however, it was necessarily determined 
in applicant's favor in making the order of allowance, and 
such order, even though erroneous, being made in the exer- 
cise of jurisdiction and being appealable, and not appealed 
from, is now absolutely conclusive, and, in the absence of 
any charge of fraud or imposition, and no such allegation is 
made here, cannot be reviewed or impeached at law or in 
equity, the time for an appeal having elapsed; certainly it 
cannot be reviewed or impeached collaterally. 

The facts and the law were before the court, and having 
considered both, the allowance was made. As the supreme 
court said in Re Stevens, 83 Cal. 326, 17 Am. St. Rep. 252, 
23 Pac. 379, why should not this order be held final, unless 
facts not disclosed to the court when the order was made 
subsequently are brought to its attention? The order is ap- 
pealable and now should be regarded as final. On an appeal 
from the order of allowance, the facts could have been made 
known to the appellate court, the ruling reviewed, and the 
error, if any, corrected, but the time for appeal was allowed 
to pass, and in such circumstances the power of the court over 
its order is at end. The trial court cannot act as an appellate 
court to review its ov\-n orders. It might be that if it had 
appeared that the court was imposed upon, a change could be 
made, but there is no such case here. All the facts on which 
the court acted were before it v/hen the allowance was 
granted; if there was error in the judicial conclusion the 



Estate of Fargo. 223 

remedy was by appeal ; all parties were, constructively at 
least, before the court. It is too late now to complain. 

As to the expenditures for assessments on shares of stock 
in the Home Gold Mining Company: In making these pay- 
ments plaintiffs claim that the executor was, in substance and 
effect, simply continuing and protecting an investment al- 
ready made by his testator; and if, in so doing, he acted in 
good faith and with ordinary prudence, the expenditures 
were proper and chargeable in his account, even though the 
stock may ultimately have turned out to be worthless, and the 
fact' that the investment in such stock was made by the testa- 
tor and was thus continued by the executor, should go far 
toward justifying the conduct of the latter. 

Equity looks leniently on the conduct of a trustee who has 
acted in good faith and in the exercise of a sound discretion, 
although, in the light of subsequent events, the course pur- 
sued may turn out to have been unwise; but the payment of 
assessments on speculative shares is not encouraged by the 
courts, and is usually at the hazard of the executor and only 
justified by successful issue of the investment. Even a pre- 
vious order of the court would afford no protection, except to 
exculpate the executor from any imputation of bad faith or 
improvidence. In the circumstances of this case there is 
much to justify the act of the executor in paying assessments 
on stock of which testator was the purchaser and which in the 
inventory was appraised at $27,000, originally, and later at- 
$105,000, and consequently constitutes virtually the entire 
estate. I think a reservation should be made in the decree 
enabling plaintiffs to recover these payments out of the pro- 
ceeds of the property itself. 



An Order Granting a Family Allowance is appealable, and if no 
appeal is taken within the time limited by law, it becomes final and 
eonclusive. Thereafter the probate court cannot review, suspend or 
vacate its order. Although it finds on a partial distribution that she 
to whom it has granted an allowance was not the widow of the 
deceased, the allowance cannot be collaterally attacked. And cred- 
itors who have allowed the time for appeal to pass by cannot object 
to the approval of an executor's account, showing the payment of a 
monthly allowance, on the ground that the estate was insolvent when 
the order therefor was made. It is not doubted, however, that the 
probate court, after having made an allowance, may modify it, should 



224 Coffey's Probate Decisions, Vol, 3. 

the condition of the estate or the relation of the family thereto so 
change as to make such modification expedient, or that a court of 
equity, when the time for prosecuting an appeal has elapsed, may 
set aside an order for fraud in its procurement. An appeal from an 
order directing the payment of an allowance acts as a supersedeas, 
staying all further proceedings in respect to the matter involved. 
Hence a subsequent order of the superior court directing the adminis- 
trator to make payment is beyond its jurisdiction, and subject to 
annulment on certiorari: 1 Eoss on Probate Law and Practice, 489. 



In the Matter of the Estate of CAROLINE A. ROBIN- 
SON, Deceased. 

[No. 11,672; decided March 24, 1904.] 

Administra.tors — Removal for Neglect of Duty. — The administrator 
in this case was found guilty of negligence of so grave a character 
as to justify his removal. 

Application for removal of administrator on grounds of 
negligence, fraud and conspiracy. 

Tobin & Tobin and George A. Clough, for the applicant, 
Hibernia Savings and Loan Society, 

George D. Collins, for the administrator, Clarence W. Pur- 
rington. 

COFFEY, J. Counsel have favored the court in this mat- 
ter with eighty-four typewritten pages of briefs, in which 
they have exhausted argument and epithet, each in his en- 
deavor to sustain his position at the expense of the other. 
Eliminating their epithets, I have sought to address myself 
to the merits of the case, mindful of the caution contained on 
the third page of the administrator's brief concerning the 
attitude of probate courts toward administrators, who have 
rights as well as duties and whose rights are entitled to just 
as much recognition as their duties. The supreme court has 
drawn the lines so taut in the matter of amotion of adminis- 
trators that the trial tribunal is bound to the exercise of the 
utmost care and circumspection in dealing with such cases. 



Estate of Werner. 225 

This court has been in this case so far conservative of the 
rights of the administrator, and so mindful of the admonition 
adverted to by counsel, that its tendency has been to treat 
with the utmost consideration and indulgence his conduct in 
office and to palliate, as far as possible, the proofs adduced 
against him ; but no matter how tender may be the considera- 
tion of the trial court for the accused on the charges of fraud 
and conspiracy, there can be no escape from the conclusion 
that he has been guilty of negligence of so grave a character 
as to justify his removal, and it is the judgment of the court 
that he be removed on that ground. 



In the Matter of the Estate of GESINA WERNER, 

Deceased, 

[No. 2,290; decided August 15, 1907.] 

Accumulations. — Provisions of a Will for accumulations beyond the 
period of majority are in this case held void. 

Trusts. — The Power of Alienation is Suspended when trustees, 
acting within the exact limits of the powers granted them, uniting 
with the beneficiaries cannot convey the fee. Hence, if the power of 
alienation is, by the terms of a devise, so suspended that during 
lives in being at the inception of the trust a fee may not be con- 
veyed by the trustees and the beneficiaries, then the trust must be 
held void. 

Application for partial distribution. 
Lloyd & Wood, for the petitioners. 
Reed, Black & Reed, for the executors, 

COFFEY, J. Gesina Werner died in the year 1906 in San 
Francisco, leaving a last will and testament, admitted to pro- 
bate, which contained the following trust provision : 

"Eighth: I hereby will, devise and bequeath all of my es- 
tate of every name, nature and description, wherever the same 
may be situate, other than the hereinabove devised, to Edwin 

Prob. Dec, Vol. Ill — 15 



226 Coffey's Probate Decisions, Vol. 3. 

Meese and John Hasshagen, in trust nevertheless and to and 
for the purposes and uses following, to wit : 

"To hold and rent the same, collect the income therefrom 
and apply the same as herein directed. I will and direct that 
my said trustees make pajTuent unto my grandchildren Ida 
Hansen, Alice Brough, Mabel Werner, (being the three chil- 
dren of Louis and Louise Werner) Willie INIenne and Walter 
Menne, (being the two children of Albert H. Menne and the 
deceased Lizzie Menne) in the manner following, to wit: 
Unto each of my above-named grandchildren who at the date 
of my death shall have attained the age of twenty-five (25) 
years the sum of Five Hundred (500) Dollars each respec- 
tively and unto each of my above-named grandchildren who 
shall thereafter and as they shall respectively attain the age 
of Twenty-five (25) years, the sum of Five Hundred (500) 
Dollars respectively, and after payment of such bequests shall 
have been made to each of my said grandchildren then the 
rest, residue and remainder of my estate shall be divided 
between mj^ said five grandchildren share and share alike ; pro- 
vided, however, that if any of my said grandchildren shall 
die unmarried and without child or children before arrival of 
time of payment of any of the devises and bequests made to 
them, then and in that case the devise and bequest of every 
child so dying shall be divided equally among my said sur- 
viving grandchildren. Any surplus moneys that may at any 
time be in the hands of my said trustees they shall safely 
invest and keep invested until occasion *shall arise for use 
of the same in performance of any of the trusts and devises 
hereby created, when they shall apply the same, so far as 
necessary, in the discharge of such trusts and devises. 

"And to carry out and accomplish the purposes herein ex- 
pressed and declared, I will and desire and hereby authorize 
my said trustees to have and exercise all such powers as 
shall, in their judgment, be necessary or proper to accomplish 
any of said purposes. 

"I will and direct that my said trustees make the payments 
and perform the duties at the time and in the manner herein- 
before directed." 

The five grandchildren of the deceased are made the resid- 
uary legatees of said estate by reason of said trust clause. 



Estate op Wernee. 227 

Counsel for "Willie Menne and Walter Menne, two of said 
grandchildren, have attacked the validity of said trust clause 
on the ground that the power of alienation is suspended be- 
yond the lives of persons in being at the time of the creation 
of the trust. Should this contention be upheld by the court, 
Ida Hansen, Alice Brough and Mabel Werner, the other three 
grandchildren, would be cut off entirely in sharing in said 
estate, and Willie Menne and Walter Menne would receive 
between them one-half of said estate, and the other half of 
said estate would go to the parents of said Ida Hansen, Alice 
Brough and Mabel Werner. 

It is conceded that the provisions of the will providing for 
accumulations beyond the period of majority are void: Civ. 
Code, sec. 723. 

The accumulations thus derived will be distributed among 
the heirs at law. In the present case one-half of such ac- 
cumulations will go to Louis Menne, and the other half to 
Willie Menne and Walter Menne : Civ. Code, sec. 733. 

In the matter of the trust clause the petitioners contend 
that it is invalid, and should be disregarded : Estate of Walk- 
erley, 108 Cal. 627, 49 Am. St. Rep. 97, 41 Pac. 772. 

It is the accepted rule that the power of alienation is sus- 
pended when the trustees, acting within the exact limits of 
the powers granted to them, uniting with the beneficiaries 
cannot convey the fee. Hence, if the power of alienation be, 
by the terms of the devise, so suspended that during lives in 
being at the inception of the trust a fee may not be conveyed 
by the trustees and the beneficiaries, then it follows the trust 
must be held void. 

Here we find a trust to hold during certain lives in being, 
namely, the five grandchildren of the testatrix, and such a 
trust would be valid if nothing further followed, and it is to 
that which follows that the objection is pointed. 

The will provides that if any of said grandchildren die un- 
married and without children before all the grandchildren 
reach the age of twenty-five years, then the portion of such 
dying grandchild shall vest in the survivors. It will at once 
be notice that the vesting of such interest can only take effect 
upon the death of the party entitled unmarried and without 
issue, and hence the death of one of the grandchildren mar- 



223 Coffey's Probate Decisions, Vol. 3. 

ried or with issue would necessarily result in the holding of 
the estate by the trustees beyond the lives in being at the in- 
ception of the trust. The trust requires the trustees to hold 
the estate according to the directions of the will, and in view 
of such a provision the trustees would continue to hold after 
the death of a married grandchild, or one dying with issue, 
and such holding would be beyond lives in being, and there 
could not have been at the inception of the trust any person 
in being who could have united with the trustees in conveying 
a fee. 

As a further objection to the trust clause in question, it is 
urged that the payment of $500 to each of the grandchildren 
is made to await the arrival of such division at the age of 
twenty-five years, and the estate cannot be divided until 
"after payment of such bequests shall have been made to 
each of my said grandchildren." Hence, it follows that the 
distribution of the estate is postponed until the arrival of 
the youngest survivor at the age of twenty-five years, and if, 
in the meantime, one of the older grandchildren should die 
married, or leaving issue, the trustees would be obliged to 
withhold from the widow or children the portion coming to 
her or them until all the survivors reach the age of twenty- 
five years, or, in other words, the power of alienation granted 
to the trustees and coming by inheritance to the widow or 
issue would be restrained until all the surviving grandchil- 
dren reached the prescribed limit. The trustees could not 
convey a fee, and the widow or children uniting with the 
trustees would be equally powerless, for the reason that no 
estate could vest in them until the youngest of the surviving 
grandchildren had reached the age of twenty-five years. 

For the foregoing reasons the court is of the opinion that 
the prayer of the petitioner should be and it is granted. 



Estate op Wells. 229 



Estate of ASA R. "WELLS, Deceased. 

[No. 31,550j decided July 29, 1905.] 

Homestead. — A Widow is Entitled to have a homestead set apart 
from the estate of her deceased husband, even if the entire estate is 
thereby consumed, irresj^ective of the claims of creditors, and not- 
withstanding there are no minor children. 

Homestead — Right of Widow as Against Devisees. — The right of 
a widow to have a homestead set apart to her is superior to any at- 
tempt at testamentary disposition. Heirs and devisees occupy no 
better position as against her right than do creditors. 

Homestead — Value of Property Set Apart. — WTiere the only prem- 
ises of a decedent suitable for a homestead are indivisible, they may 
be set apart to the widow although appraised at $30,000. 

C. H. Wilson, for the widow. 
Alexander & Church, for the executors. 

COFFEY, J. Upon the facts in evidence it must be con- 
cluded that the premises sought to be set apart constitute 
community property. 

The property is not susceptible of partition. The authori- 
ties cited by executors are not in point in an application of 
this character. The widow is entitled to a homestead, even 
if it consumed the entire estate, irrespective of the claims of 
creditors, and notwithstanding that there are no minor chil- 
dren. 

It does not appear here that the estate is insolvent. All 
the children are adults. The statement of facts in the open- 
ing brief of applicants seems to be correct. 

Reba E. Wells, the widow of the deceased, makes applica- 
tion for a homestead under the provisions of section 1465, 
Code of Civil Procedure. It appears from the evidence that 
neither the deceased nor the petitioner selected a homestead 
during the lifetime of the decedent; that the only real prop- 
erty belonging to the estate is the piece which the petitioner 
now asks to have set apart to her as a homestead; that said 
property is situate on Ellis street in this city and county; 
that it is an entirety and incapable of division; that there is 
upon it a dwelling-house, and that the property is appraised 
at $30,000, and is suitable for a homestead. It further ap- 



230 Coffey's Probate Decisions, Vol. 3. 

pears that besides the petitioner the deceased left him surviv- 
ing five children — tMO girls and three boys — the issue of a 
former marriage ; that all the children are above thirty years 
of age, and that the future of the two girls is secured by 
property deeded to them as in the will mentioned, which 
property is of the value of sixty or sixty-five thousand dollars. 
There is no evidence to show that any of the boys labor under 
disability. 

On the hearing, counsel showed debts against the estate 
amounting to $17,612.48; of this sum $15,115 is due to the 
Hibernia Bank on account of mortgages placed by the de- 
ceased upon the property heretofore mentioned as having 
been deeded to the girls and also upon a piece of property 
deeded to the petitioner. None of said mortgaged property 
is inventoried as a part of the estate of the deceased. The ^ 
appraised value of the estate is $51,558.67. The petitioner 
married the deceased June 25, 1885, and lived with him to 
the time of his death ; the property sought to be set aside as 
a homestead was purchased November 26, 1902, and is com- 
munity property. 

Upon this showing the court has no discretion to deny the 
application. All the later California cases are in agreement 
upon this point. The heirs, legatees, and devisees occupy 
no better position than creditors. The right to a homestead 
is statutory and superior to any attempt at testamentary dis- 
position. The executors are in error in their contention that 
the amount of the homestead is limited; the cases cited by 
them do not apply here. The law as now laid down was 
declared by the supreme court in Estate of Levy, 141 Cal. 
652, 99 Am. St. Rep. 92, 75 Pac. 301, which says, in effect 
that in the absence of a statutory limitation as to value, the 
right of the applicant is paramount to all others, even though 
its assertion should absorb the half or the whole of the estate, 
where the only premises suitable for a homestead are indivis- 
ible, and where to deny such application would be to deprive 
the widow of her claim under the statute. The proof in 
this case justifies the court in decreeing that the applicant 
widow is entitled to an absolute homestead in the Ellis street 
property, and that the petition of the executors for an order 
of sale should be denied, and it is so ordered. 



Estate of Stuart. 231 

An Appeal from the Principal Case was dismissed in 148 Cal. 659, 
84 Pac. 37, the sunreiue court holding that where an appellant has 
filed ne undertaking on appeal from orders setting apart a home- 
stead, and has made no appearance to a motion of the respondent to 
dismiss the appeals, they should be dismissed. 

The Law Places No Limitation on the Value of the Property which 
may be appropriated for a probate homestead, but leaves it in the 
discretion of the court to set apart such property as, irrespective of 
value, may appear just and proper in view of the value and condition 
of the estate. When the estate is insolvent, the court must take into 
account the rights of creditors, and since the legislature has fixed the 
sum of $5,000 as the limit in value which a debtor may claim for his 
homestead against the demands of his creditors, a wise exercise of 
judicial discretion will restrict the probate homestead to that amount, 
at least where a homestead of this value can readily be segre- 
gated from the remainder of the estate. Nevertheless, the rights of 
creditors, heirs, and devisees are subordinate to the right of the 
family to a home; and where the only premises suitable for a home- 
stead are indivisible, the fact that they greatly exceed $5,000 in 
value does not preclude the appropriation: 1 Ross on Probate Law 
and Practice, 475. 



Estate of J. C. G. STUART, Deceased. 

Estate of Limited Value — Setting Apart to Widow. — Under section 
1469 of the Code of Civil Procedure, as amended in 1897, the court 
cannot set apart an estate under $1,500 for the joint benefit of the 
widow and children; the whole of the estate must be assigned "to 

the widow." 

I 

( 

Application to set apart an estate under $1500 to the widow 
and children of the decedent, under section liGO of the Code 
of Civil Procedure. 

COFFEY, J. Until 1897, the section provided that the 
court should assign the estate "for the use and the support 
of the widow and minor children." 

The section was amended in 1897 and that provision elimi- 
nated. As it now stands the section provides that the estate 
shall be assigned ''to the widow of the deceased, if there be 
a widow." 



232 Coffey's Probate Decisions, Vol. 3. 

The provision of the former section was as follows: That 
the court should assign the estate ' ' for the use and support of 
Lhe widow and minor children if there be a widow and minor 
children, and if no widow, then for the minor children, if 
there be any, and if no children, then for the widow." 

The corresponding provision of the present section is that 
the court shall assign the estate "to the widow of the de- 
ceased, if there be a widow, if no widow, then to the minor 
: children of the deceased, if there be minor children." 
' It seems from a consideration of the section before and 
after the amendment of 1897 that the court cannot now set 
apart such an estate for the joint benefit of the widow and 
the children. The express provision of the statute, as it for- 
merly stood, requiring and allowing this to be done, has been 
stricken out and replaced by plain provisions that the whole 
of the estate shall be assigned ' ' to the widow of the deceased, 
if there be a widow." 



Estate of BERTHA M. DOLBEER, Deceased. 

Testameutary Capacity. — The Test of Capacity to Make a Will is 
this: The testatrix must have strength and clearness of mind and 
I memory sufficient to know in general, without prompting, the nature 
and extent of the property of which she is about to dispose, the nature 
of the act which she is about to perform, the names and identity of the 
persons who are the proper objects of her bounty, and her relation 
toward them. 

Testamentary Capacity. — In Order to have a Sound and Disposing 
Mind the testatrix must be able to understand the nature of the 
act she is performing, she must be able to recall those who are the 
natural objects of her bounty, she must be able to remember the 
character and extent of her property, she must be able to under- 
stand the manner in which she wishes to distribute it, and she must 
understand the persons to whom she wishes to distribute it. It is 
not sufficient that she have a mind sufficient to comprehend one of 
these elements; her mind must be sufficiently clear and strong to 
perceive the relation of the various elements to one another, and she 
must have at least a general comprehension of the whole. 

Will. — The Right to Leave Property by Will is a right given by 
the law alone; that is, a person has no natural right to leave his 
property in any particular way. 

"Wills — Injustice or Unreasonableness of Disposition. — The com- 
petency of the testatrix being shown, the wisdom or folly, justness 



Estate of Dolbeer. 233 

or nnjiistness of the will, can play no part in the question of its 
validity; but the character of the provisions of the will, as being 
just or unjust, reasonable or unreasonable, may be considered by the 
jury as tending to throw light on the capacity of the testatrix. 

Testamentai-y Capacity — Terms of Will and Condition of Estate. — 
In determining the soundness of mind of a testatrix, the jury should 
take into consideration the provisions of the will itself, and also the 
condition and nature of the estate disposed of. 

Testamentary Capacity — Condition and Relation of Beneficiaries. — 
In determining the soundness of mind of a testatrix, the jury should 
consider the condition of the beneficiaries under the will, the rela- 
tions between the testatrix and any contestants or excluded relatives, 
and also their age, condition, circumstances, and their conduct toward 
the testatrix. 

A Witness False in One Part of His Testimony is to be distrusted 
in other parts. 

Jurors are the Sole Judges of the Effect and Value of the Evidence 
addressed to them; their power is not arbitrary, however, but is to 
be exercised with legal discretion and in subordination to the rules of 
evidence. 

Testamentary Capacity — Opinion of Acquaintance. — Where the 
opinion of an intimate acquaintance is given respecting the mental 
capacity of a testatrix, it is proper for the jurors to consider the 
degree of intimacy of the acquaintanceship in determining how much 
weight should be given to the opinion, and they must determine the 
weight to be given the opinion of each witness from the facts and 
circumstances upon which he founded his opinion, keeping in view 
the degree of intimacy existing in each case. 

Wills — Unreasonable Previsions — Unfounded Discrimination. — A 
person has the right by will to bestow her property on whomsoever 
she pleases; and if there is no testamentary incapacity, the law must 
give effect to her will, even though the provisions may appear un- 
reasonable, or however great or unfounded may be her likes or dis- 
likes or resentment against those who may be thought to have some 
claim against her bounty. 

Wills — Injustice or Impropriety of Provisions. — The beneficiaries 
named in a will are as much entitled to protection as any other 
property owners, and juries should not set aside a will through pre- 
judice or merely on suspicion, or because it does not conform to their 
ideas as to what is just or proper. 

Testamentary Capacity — Discrimination Against Heix-s. — It cannot 
be presumed that a testatrix was of unsound mind because she dis- 
criminated against her heirs in the disposition of her estate. 

Wills — Right to Dispose of Property. — A person of sound mind may 
leave his property by will to relatives, or dispose of it otherwise as 
he pleases. His own wishes and judgment in this regard are sole and 
Bupreme. 



234 Coffey's Probate Decisions, Vol. 3. 

Wills. — Mere Hatred or Dislike of Relatives which influences a 
testatrix in making her will, without proof of actual mental unsound- 
ness, will not invalidate the will. 

Testamentary Capacity. — The Law Presumes that Every Person 
possesses a sound and disposing mind, and his devisees and legatees 
are entitled to this presumption as a matter of evidence. 

Testamentary Capacity — Burden of Proof in WiU Contest. — Those 
who contest a will on the ground that the testatrix was of unsound 
mind have the burden of proof to establish such unsoundness by a 
preponderance of evidence. If the evidence is equally balanced, the 
contestants fail to sustain the burden which the law imposes upon 
them. 

Testamentary Capacity — Burden of Proof and Preponderance of 
Evidence. — Persons who assert the insanity of a testatrix are re- 
quired to prove their assertions by a preponderance of evidence, by 
which is meant that amount of evidence which produces conviction 
in an unprejudiced mind. 

Testamentary Capacity. — The Presumption that Every Person is 
of Sound Mind until the contrary is proved is a legal presumption. 

Testamentary Capacity — Perfect Mental Health. — The law does not 
require that a person, to be competent to make a will, should be in 
perfect mental health. 

Testamentary Capacity — Time When must Exist. — When a will is 
contested on the ground that the testatrix was of unsound mind, the 
time when the will was executed is the time to which the jury must 
look in determining the question of testamentary capacity. What 
her mental condition was before or after the execution of the will 
is important only so far as it throws light upon her mental condi- 
tion when the will was executed. 

Testamentary Capacity. — The Will Itself may be Considered in 
determining whether the author was of sound and disposing mind. 

Testamentary Capacity — Bodily Health and Strength. — In determin- 
ing testamentary capacity it is the soundness of mind, not the state 
of bodily health, that is considered. The bodily health of a testatrix 
is important only so far as it may be evidence of the state of her 
mind. Neither sickness nor physical disability alone will disqualify 
a person from making a will. 

Suicide is Never Presumed by the Law from the mere fact of 
death. 

Testamentary Capacity. — The Fact that a Testatrix Committed 
Suicide raises no presumption that she was of unsound mind at that 
time. 

Wills. — A Niece is Under No Obligation to Provide for Her Uncles 

and aunts, either when living or by will, and the failure to name 
them in her will raises no presumption that they were forgotten. 



Estate of Dolbeeb. 235 

Will Contest — Relative Wealth or Poverty of Parties. — If a testa- 
trix was of sound and disposing mind when she made her will, the 
jury cannot consider, in case of a contest of the will, the relative 
wealth or poverty of the parties to the controversy. 

The Opinion of a Witness Fomided upon a Hypothetical Question 
must be brought to the test of facts in order that the jury may judge 
what weight the opinion is entitled to. 

Will Contest. — For the Jury to GrO Outside the Evidence and base 
its decision in a will contest upon anything but a consideration of the 
evidence is to disregard the law and their oaths. 

Will Contest — Province of Court and Jury. — In a will contest the 
jurors are to find the facts, but they must take the law from the 
court. 

Wills — Unjust Provisions. — A Person of Sound Mind has a Right 
to make an unjust or even a cruel will, if he chooses, and no court or 
jury may deprive him of that privilege. 

Witnesses — Impeaching Evidence. — A Witness Called by One Party 
may be impeached by the other party by proof that he has made at ' 
other times statements inconsistent with his present testimony; but 
such evidence is to be considered by the jury only as affecting the 
credibility of the witness. 

Hiram W. Johnson and Albert M. Johnson, for contestant 
Adolph Schander, 

E. S. Pillsbury, for proponent William G. Mugan. 

W. F. Williamson, for proponent George D. Gray. 

Garrett W. McEnerney, for Etta Marion Warren, legatee. 

COFFEY, J. Bertha M. Dolbeer died July 9, 1904, leav- 
ing a will dated April 23, 1904, which will was filed herein 
July 18, 1904, together with the petitions of George D. Gray • 
and William G. Mugan, praying for its admission to probate, 
and the issuance to them of letters testamentary. 

The will is as follows : 

"I, Bertha Marion Dolbeer of the City and County of San 
Francisco, State of California residing therein, being of 
sound and disposing mind, do hereby make, publish and de- 
clare this as and for my last will and testament; that is to 
say: 

"Fi?'st — I hereby revoke all wills and testamentary writ- 
ings heretofore made by me. I also declare that I have never 
been married. 



236 Coffey's Probate Decisions, Vol. 3. 

"Second — I give, devise and bequeath to my devoted friend 
Etta Marion Warren of San Francisco, California, the sum 
of Three Hundred Thousand Dollars ($300,000.) I also give 
devise and bequeath to Etta ]\Iarion Warren my house and 
lot inherited by me from my father and known as 2112 Pa- 
cific Ave. and also all my pictures, furniture, jewelry, books, 
plate and ornaments. 

"Third — I give, devise and bequeath to my cousin Ellen M. 
Hall, of Epsom, New Hampshire, the sum of Twenty-five 
Thousand Dollars ($25,000.) 

"Fourth — I give, devise and bequeath to my cousin, Eliza- 
beth C. Phillips of San Francisco, California, the sum of Ten 
Thousand Dollars ($10,000.) 

"Fifth — I give, devise and bequeath to my cousin, Ralph 
Chase, of Berkeley, California, the sum of Ten Thousand Dol- 
lars ($10,000.) 

"Sixth — I give, devise and bequeath to my cousin, Ethel 
F. Roche, of San Francisco, California, the sum of Ten 
Thousand Dollars ($10,000.) 

"Seventh — I give, devise and bequeath to William G. 
Mugan, of San Francisco, California, the sum of twenty 
Thousand Dollars ($20,000.) 

"Eighth — I give, devise and bequeath to Percy J. Brown, 
of Eureka, California, the sum of Ten Thousand Dollars 
($10,000.) 

"Ninth — I give, devise and bequeath to Peter Kyne, of San 
Francisco, California, the sum of Five Thousand Dollars 
($5,000.) 

"Tenth — I give, devise and bequeath to Helen L. Wagner, 
of San Francisco, California, the sum of Five Thousand 
Dollars ($5,000.) 

"Eleventh — I give, devise and bequeath to Elsie I. Chase, 
of Holyoke, Mass. the sum of Ten Thousand Dollars 
($10,000.) 

"Twelfth — I give, devise and bequeath to William Carson 
Tyson, of Alameda, California, the sum of Five Thousand 
Dollars ($5,000.) 

"Thirteenth — I give, devise and bequeath to Margaret H. 
Warren, of San Francisco, California, the sum of twenty-five 
Thousand Dollars ($25,000.) 



Estate op Dolbeeb. 237 

''Fourteentli—l leave Fifty Thousand Dollars ($50,000) 
for the purpose of erecting a mausoleum on the plot I own at 
Cypress Lawn Cemetery as soon as possible after my death. 

^'Fifteenth — I give, devise and bequeath to the 'Boys and 
Girls Aid Societ}^' of San Francisco, California, the sum of 
Two Thousand Dollars ($2,000.) 

^^ Sixteenth — I give, devise and bequeath to the 'California 
"Woman's Hospital' of San Francisco, California, the sum of 
Two Thousand Dollars ($2,000.) 

^'Seventeenth — I give, devise and bequeath to the 'Hospital 
for Children and Training School for Nurses' of San Fran- 
cisco, California, the sum of Two Thousand Dollars ($2,000.) 

"Eighteenth — I give, devise and bequeath to the 'Florence 
Crittenton Home Association for Erring Women and Chil- 
dren' of San Francisco, California, the sum of Two Thousand 
Dollars ($2,000.) 

"Nineteenth — I give, devise and bequeath to the 'San Fran- 
cisco Protestant Orphan Asylum Society' of San Francisco, 
California, the sum of Two Thousand Dollars ($2,000.) 

"Twentieth — I give, devise and bequeath to Etta Marion 
Warren, of San Francisco, California, Four Hundred Thou- 
sand Dollars ($400,000) in value of Dolbeer & Carsons Lum- 
ber Co. 's stock at par value. 

"Twenty-first — I give, devise and bequeath to Etta Marion 
Warren, of San Francisco, California, all the residue of my 
estate of every kind and character of which I may die seized 
or possessed and wheresoever situated after the payment of 
the foregoing legacies and expenses of administration. 

"Twenty-second — If any of the persons to whom specific 
legacies are bequeathed in this will shall die before my own 
death, such legacies to such deceased persons shall lapse, and 
the amount of such legacies shall become a part of the residue 
of my estate, to be bequeathed in accordance with the pro- 
visions of paragraph twenty-first above contained. 

"Twenty -third — Should the death of Etta Marion Warren 
occur before my own death, I give, devise and bequeath my 
house and lot known as 2112 Pacific Ave. with all my pictures, 
furniture, jewelry, books and ornaments, to Mai Moody 
Watson, wife of Douglas Sloane Watson. 



238 Coffey's Probate Decisions, Vol. 3. 

"Tiventy- fourth — Should the death of Etta Marion occur 
before my own death all the legacies bequeathed to her, with 
the exception of my house mentioned in paragraph twenty- 
third, shall lapse and become a part of the residue of my 
estate, such residue in the event of death of said Etta Marion 
Warren occurring before my own death, I give, devise and 
bequeath as follows: One half % of such residue to William 
Wilson Carson of San Francisco, California, son of William 
Carson of Eureka, California ; One fourth % of such residue 
to William G. Mugan of San Francisco, California; one- 
eighth Ys of such residue to Elsie I. Chase of Holyoke, Mass. 
and one-eighth Yg of such residue to Ellen M. Hall, of Epsom, 
New Hampshire. 

"Tiventy-fifth — I hereby nominate and appoint George D. 
Gray and William G. Mugan of San Francisco, Cal. to be the 
executors of this my last will and testament; and I further 
direct and request that no bonds or undertakings of any kind 
shall be required of them as such executors. In the event of 
the death of either of said above named persons before the 
close of the administration of my estate I nominate and ap- 
point the 'Mercantile Trust Co.' of San Francisco to act as 
co-executor with the survivor of the above named persons and 
in the event of the death of both of said persons above named 
before the close of the administration of my estate the said 
Mercantile Trust Co. shall act as my sole executor. And I 
hereby grant unto and bestow upon my said executors full and 
complete power to sell any and all of my property of which I 
may die seized or possessed without any order of the court, 
but all such sales shall be confirmed by the court having juris- 
diction of my estate. 

"In witness whereof, I have hereunto set my hand and seal 
this twenty-third day of April, A. D. nineteen hundred and 
four. 

"BERTHA M. DOLBEER. 

"The foregoing instrument consisting of seven pages be- 
sides this one, was on the date thereof signed in our presence 
by Bertha Marion Dolbeer who thereupon in our presence de- 
clared the same to be her last will and testament and we at 



Estate of Dolbeeb. 239 

her request and in her presence and in the presence of each 
other, have hereunto set our names as witnesses. 

"DOUGLAS S. WATSON, 

"2732 Vallejo street San Francisco 
"ARTHUR B. WATSON, 

"2732 Vallejo St San Fr&ncisco 
"San Francisco, April 23rd, 1904." 

Thereafter, and on the second day of August, 1904, Adolph 
Schander, an uncle of decedent, filed herein his verified con- 
test and opposition to the probate of said will, on the ground 
that at the time of its execution, and for a long time prior 
thereto. Bertha M. Dolbeer was not of sound or disposing 
mind and was not competent to make a will. 

The case was tried before a jury on this issue (contestant 
having demanded a jury trial) and on December 22, 1904. 
after a hearing of twenty-six days, the jury returned a ver- 
dict for proponents. 

Upon the jury being polled the verdict was found to be 
unanimous. 

The instructions given the jury were as follows: 

I. This proceeding is a contest of a document which has 
been filed in this court purporting to be the last will of 
Bertha M. Dolbeer, deceased. The contestant is Adolph 
Schander, an uncle of deceased, and the proponents of the 
document are William G. Mugan and George D. Gray, who 
in said document are named as executors. The principal 
beneficiary under the document alleged to be the will of said 
deceased is Etta Marion Warren, and she has appeared dur- 
ing the trial of this case by her counsel. Mr. Schander, the 
contestant, alleges that at the time of the execution of the 
document offered for probate, Bertha M. Dolbeer was of 
unsound mind and incompetent to make a will. The issue 
presented to you, therefore, for determination is as to the 
competency or testamentary capacity of Bertha M. Dolbeer, at 
the time it is asserted this document in question was executed 
by her. The maker of a will is termed the testator, or, if the 
maker be a woman, she is termed the testatrix. 

II. I instruct you that the real test of capacity to make a 
will is as follows: The testatrix must have strength and 
clearness of mind and memory sufficient to know in general^ 



240 Coffey's Probate Decisions, Vol. 3. 

without prompting, the nature and extent of the property of 
which she is about to dispose, the nature of the act which she 
is about to perform, and the names and identity of the per- 
sons who are the proper objects of her bounty and her rela- 
tion toward them. 

III. You will observe from the definition of sound and 
disposing mind that has been given you, that a testatrix's 
mind must be sufficiently strong at least generally to under- 
stand the following matters and things: 

1. She must understand the nature of the act she is per- 
forming ; 

2. She must be able to recollect those who are the natural 
objects of her bounty; 

3. She must be able to remember the character and extent 
of her property; 

4. She must be able to understand the manner in which she 
wishes to distribute her property; 

5. She must understand the persons to whom she wishes 
to distribute it. 

The mind of the testatrix must be sufficiently strong gener- 
ally to comprehend all of these matters and things, or you 
must find her to be of unsound mind. 

IV. I have heretofore instructed you that a person of 
sound and disposing mind is one who possesses a mind suffi- 
ciently strong and clear to enable her to know and under- 
stand the nature of the act in which she is engaged when she 
makes and executes her will, to know and recollect those who 
are the natural objects of her bounty, to know and remember 
the character and extent of her property, the manner in 
which and the persons to whom she wishes to distribute it. 
All of the matters and elements set forth in this definition 
enter into it. It is not sufficient that a testatrix should have 
mind sufficient to comprehend one of these elements. Her 
mind must be sufficiently clear and strong to perceive the re- 
lation of the various elements to one another; and she must 
have at least a general comprehension of the whole. 

V. The right to leave property by will is a right given by 
the law alone ; that is, there is no natural right that a person 
has to leave his property in any particular way. If a person 
dies without leaving a will, the law fixes the method in which 



Estate of Dolbeeb. 241 

his property shall be distributed, and that method is that 
the property of one dying intestate shall go to his next of 
kin. In this particular case, if Bertha M. Dolbeer had died 
and left no will, the law would distribute her property to her 
relatives by blood, who are her next of kin, and in this in- 
stance those relatives are Adolph Schander, Horatio Schander, 
his brother, and Mrs. Ida J. Moody. 

VI. The jury are instructed that every person possessed 
of testamentary capacity may dispose of his property by will, 
as he or she may see fit, and the only question is that of the 
competency of the testator or testatrix, measured by the legal 
standard. The competency of the testator being shown, the 
wisdom or folly, justness or unjustness of the will, can play 
no part in the question of its validity; but the character of 
the provisions of the will, as being just or unjust, reasonable 
or unreasonable, may be considered by the jury as tending 
to throw light on the capacity of the testatrix. 

VII. The court instructs the jury that in determining the 
question of the soundness of mind of the testatrix. Bertha M, 
Dolbeer, the jury have the right, and it is their duty, to take 
into consideration the provisions of the will itself, and the 
condition and nature of the estate disposed of; also, the 
condition of the beneficiaries under the will, so far as the 
evidence may show the same, and the relations between the 
testatrix and any contestant or relatives excluded from any 
benefit under the will, and, so far as the evidence may show, 
their age, condition and circumstances, and their conduct to- 
ward the testatrix, in connection with all other evidence that 
has been received on the question as to whether the deceased r 
was or was not of sound mind at the time of the execution of ' 
the will in question, 

VIII. The court instructs you that a witness false in one 
part of his or her testimony is to be distrusted in others. 

IX. The jury are instructed that they are the sole judges 
of the effect and value of the evidence addressed to them. 
Their power of judging of the effect of evidence is not arbi- 
trary, however, but is to be exercised with legal discretion 
and in subordination to the rules of evidence. They are not 
bound to decide in conformity with the declarations of any 
number of witnesses which do not produce conviction in their 

Prob. Dec, Vol. Ill — 16 



242 Coffey's Probate Decisions, Vol. 3. 

minds, against a less number or against a presumption or 
other evidence satisfying their minds. 

X. The jury are instructed that the law allows evidence 
to be offered of the opinion of an intimate acquaintance, re- 
specting the mental capacity of a person, the reason for the 
opinion being given; and the court must use its discretion in 
each case in determining whether or not the particular wit- 
ness is an intimate acquaintance within the meaning of this 
rule. It is proper for you to consider the degree of intimacy 

' of acquaintanceship established in the case of each w^itness in 
determining how much weight shall be given to the opinion of 
that witness, and you must determine the proper weight to be 
given to the opinion of each witness from the facts and cir- 
cumstances upon which he founds his opinion, keeping in 
view the degree of intimacy existing in each case. 

XI. The persons named as executors in the instrument 
offered here as the last will of Bertha M. Dolbeer have pre- 
sented that instrument to this court as her last wnll and testa- 
ment, and have petitioned the court that it be admitted to 
probate. Adolph Schander, the uncle of said Bertha M. Dol- 
beer, has filed written grounds of contest to the probate of 
the instrument, in which he alleges, as his sole ground of con- 
test, that Bertha M. Dolbeer was of unsound mind at the time 

'said instrument was executed. This presents, therefore, as 
the only issue to be tried by you, gentlemen, the question 
whether Bertha M. Dolbeer was of unsound mind at that time. 

XII. By the law of this state every person over the age of 
eighteen years and of sound mind may dispose of all his or 
her property, real and personal, by last will. If, therefore, 
Bertha M. Dolbeer was of sound mind at the time when the 
instrument here offered for probate was executed, she had 
the absolute right to dispose of her property by Vv'ill. The 
right to dispose of one's property by will is most solemnly 
secured by law, and is a most valuable incident to the owner- 
ship of property and is not dependent upon its judicious use. 
The right of absolute dominion over one's property is sacred 
and inviolable. 

If, therefore, at the time Bertha M. Dolbeer executed this 
instrument, she was of sound mind, she had the right to dis- 
pose of her property as she saw fit. Whatever may be the 



Estate of Dolbeer. 243 

motives of the testatrix her right to dispose of her property- 
is paramount. She had the right by will to bestow her prop- 
erty on whomsoever she pleased ; and if there be no testa- 
mentary incapacity, the law must give effect to her will, even 
though the provisions may appear unreasonable, or however 
great or unfounded may be her likes or dislikes or resentment 
against those who may be thought to have some claim against 
her bounty. It is the right of everyone to do what one wills 
with one's own, unless the disposition which is made violates 
some law. And after the death of a testatrix, neither court 
nor jury have the power to make for such personal disposition 
of her property different from the disposition she intended 
to make, upon any theory that such intended disposition was 
unjust. The beneficiaries named in a will are as much en- 
titled to protection as any other property owners, and juries 
should not set aside a will through prejudice or merely on 
suspicion or because it does not conform to their ideas as to 
what is just or proper. You have nothing to do with the 
equity or inequity of the testamentary dispositions of prop- 
erty, provided you believe from the evidence that the testa- 
trix at the time she executed the instrument had sufficient 
mental capacity to make a will, as explained in these instruc- 
tions : Estate of Nelson, 132 Cal. 182, 64 Pac. 294 ; Estate of 
Kohler, 79 Cal. 313, 21 Pac. 758. 

XIII. The law having conferred on every person over the 
age of eighteen years and of sound mind the right to deter- 
mine how he or she will dispose of his or her estate, it w\\\ 
not be presumed, and you are not to presume, that Bertha M. 
Dolbeer was insane or of unsound mind because she has exer- 
cised that right and discriminated against her heirs in the 
disposition of her estate: Estate of Mullin, 110 Cal. 252, 42 
Pac. 645. 

XIV. I instruct you that the heirs of a person have no 
right, either legal or equitable, which can be asserted against 
the right of that person to dispose by will of his or her prop- 
erty. The testatrix, if of sound mind at the time she exe- 
cuted the instrument, had the right to bestow her property 
upon whomsoever she pleased, and her heirs cannot prevent 
such disposition of her property. A testatrix need not, un- 
less she wishes, consult anyone as to how she shall dispose of 



244 Coffey's Probate Decisions, Vol. 3. 

her property. She may leave it to relatives or dispose of it 
otherwise of she wishes. In that regard her own wishes and 
judgment are sole and supreme: Estate of Kohler, 79 Cal. 
313, 21 Pac. 758; Estate of Carriger, 104 Cal. 81, 37 Pac. 
785 ; Estate of IMullin, 110 Cal. 252, 42 Pac. 645 ; Estate of 
Redfield, 116 Cal. 637, 48 Pac. 794. 

XV. Mere hatred or dislike of relatives which influences 
a testatrix in making her will, without proof of actual mental 
unsoundness, will not invalidate a will: Estate of Carriger, 
104 Cal. 81, 37 Pac. 785; Estate of Spences, 96 Cal. 448, 31 
Pac. 453. 

XVI. I instruct you that in this case if Bertha M. Dol- 
beer died intestate, that is, without leaving a valid will, her 
property will go in equal shares to Adolph Schander, the 
contestant, to his brother Horatio Schander, and Mrs. Ida J. 
Mood}^ 

XVII. I instruct you that the law presumes, until the 
contrary is shown, that every person possesses a sound and 
disposing mind, and that on the trial of the question as to 
whether Bertha M. Dolbeer was of sound mind at the time 
she executed the instrument offered for probate, it is a pre- 
sumption of law that she was of sound mind at that time, and 
the devisees and legatees are entitled to such presumption as 
a matter of evidence : Estate of Nelson, 132 Cal. 182, 64 Pac. 
294; Estate of Keegan, 139 Cal. 123, 72 Pac. 828. 

XVIII. Upon this trial the law provides that the contes- 
tant is the plaintiff and all other parties to the action are de- 
fendants. The burden of proof is upon the contestant in this 
proceeding ; he alleges that Bertha M. Dolbeer was of unsound 
mind at the time she executed this instrument, and the 
burden is upon him to show this, and this he must do by a 
preponderance of evidence in order to be entitled to your 
verdict'. If you believe the evidence to be equally balanced, 
the contestant has failed to sustain the burden of proof which 
the law imposes upon him : Estate of Carriger, 104 Cal. 81 , 
37 Pac. 785; Estate of Redfield, 116 Cal. 637, 48 Pac. 794; Es- 
tate of Nelson, 132 Cal. 182, 64 Pac. 294. 

XIX. The law requires that the person upon whom the 
burden of proving the insanity of a testatrix rests — in this 
case the contestant — shall prove it by a preponderance of evi- 



Estate of Dolbeer. 245 

dence. By a preponderance of evidence is meant that 
amount of evidence which produces conviction in an un- 
prejudiced mind, and only such evidence will justify a ver- 
dict that Bertha M. Dolbeer was of unsound mind at the time 
she executed this instrument: Code Civ. Proc. 1826; Estate 
of Nelson, 132 Cal. 182, 64 Pac. 294. 

XX. The presumption that every person is of sound mind 
until the contrary is proved is a legal presumption, and I 
instruct you that you should take it into consideration as a 
matter of evidence in passing upon the issue submitted to 
you : Estate of Langf ord, 108 Cal. 608, 41 Pac. 701. 

XXI. I instruct you, gentlemen, that the law does not re- 
quire that a person, in order to be competent to make a will, 
should be of perfect mental health. Bertha M. Dolbeer was 
of sound mind, in the meaning of the law, and was capable 
of making a will, if at the time she executed the proposed 
will she had the mental capacity to collect and hold in her 
mind and to fairly and rationally know and comprehend the 
nature of the act in which she was then engaged, the character 
and extent of her property, the persons who were the natural 
objects of her bounty, and the persons to whom, and the man- 
ner and proportions in which, she wished her property to go : 
Estate of Wilson, 117 Cal. 262, 49 Pac. 172, 711; Estate of 
Nelson, 132 Cal. 182, 64 Pac. 294; Estate of Kohler, 79 Cal. 
313, 21 Pac. 758; Estate of Redfield, 116 Cal. 637, 48 Pac. 
794. 

XXII. The only question submitted to you for decision is 
whether Bertha M. Dolbeer at the time she executed the pro- 
posed will was a woman of sound and disposing mind. You 
are not called upon to answer whether she was of sound or 
disposing mind at all times, but only whether she was of 
sound and disposing mind at a particular time, namely, at 
the time she executed the instrument in question. What her 
mental condition was before or after the execution of that 
instrument is only important so far as it throws light upon 
her mental condition when the will was executed. The point 
of time at which the proposed will was executed is the point 
of time to which you must look when you come to answer the 
question whether her mind was a sound and disposing one: 



246 Coffey's Probate Decisions, Vol. 3. 

Estate of MiiUin, 110 Cal. 252 , 42 Pac. 645 ; Estate of Red- 
field, 116 Cal. 637, 48 Pac. 794. 

XXIII. I instruct' you that the proposed will of Bertha 
M. Dolbeer may be considered by you with all the other evi- 
dence in the case: Estate of Carriger, 104 Cal. 81, 37 Pac. 
785. 

XXIV. In deciding upon the capacity of the testatrix to 
make her will, it is the soundness of mind and not the par- 
ticular state of bodily health that is to be attended to. The 
bodily health of a testatrix is important only so far as it may 
be evidence of the state of her mind. Neither sickness nor 
physical disability alone will disqualify a person from mak- 
ing a will: Estate of Eedfield, 116 Cal. 637, 48 Pac. 794; Es- 
tate of Mullin, 110 Cal. 252, 42 Pac. 645. 

XXV. I instruct you that suicide is never presumed by 
the law from the mere fact of death, but that, on the con- 
trary, the law presumes, where the mere fact of death is 
alone shown, that such death occurred from natural or acci- 
dental causes, and not from suicide. I instruct you further 
that if you find from the evidence that the testatrix did 
commit suicide, the law does not presume from this fact alone 
that she was of unsound mind at that time. 

XXVI. I instruct you that a niece is under no obligation, 
ordinarilj^, to provide for her uncles and aunts, either when 
living or by will, and that the failure to name them, or any 
of them, in the will, does not, under the statute, raise a pre- 
sumption that they were forgotten : Estate of McDevitt, 95 
Cal. 31, 30 Pac. 101. Expressly approved in Estate of Kee- 
gan, 139 Cal. 127, 72 Pac. 828, as to obligation of uncle to 
support niece and nephew. 

XXVII. If you find that Bertha M. Dolbeer was, at the 
time of making the proposed will, of sound and disposing 
mind, you must not consider the relative wealth or poverty 
of the parties to this controversy: Estate of Redfield, 116 Cal. 
637, 48 Pac. 794. 

XXVIII. A hypothetical question is a question which 
assumes a certain condition of things to be true, a certain 
number of facts proved or to be proved, and calls upon the 
witness to assume all the material facts stated to be true and 
express his opinion as to a certain condition. The witness to 



Estate op Dolbeer. 247 

whom the hypothetical question is addressed assumes them 
to be true and bases his answer upon the assumed ease. The 
opinion of the witness must, therefore, be brought to the test 
of the facts in order that you may judge what weight the 
opinion is entitled to : Estate of Spencer, 96 Cal. 448, 31 Pac. 
453 ; Estate of Keegan, 139 Cal. 123, 72 Pac. 828. 

XXIX. In deciding the issue before you, gentlemen, you 
must decide from a consideration of the evidence in this case, 
and nothing else. You are not to consider matters which are 
not in evidence, or to conjecture what the answers might have 
been to questions which the court did not permit to be an- 
swered. The remarks of counsel not supported by the evi- 
dence in the case are not to be regarded by you as facts 
proved in the case. To go outside of the evidence and base 
your decision upon anything but a consideration of the evi- 
dence would be to disregard the law and your oaths : Estate 
of Kohler, 79 Cal. 313, 21 Pac. 758. 

XXX. Gentlemen, you are the judges of the effect and 
value of the evidence in this case. It rests with you, upon 
your sound judgment, under your oaths, and the law as given 
you by the court, considering all the evidence in the case, to 
decide upon that evidence whether Bertha M. Dolbeer was oS 
unsound mind at the time she made the will here offered for 
probate. The court does not decide or intimate to you what 
is or is not proved, or the weight you are to give any facts 
proved in this case, further than to say that you must con- 
sider all of the evidence. Your power in judging of the 
effect and value of the evidence is not arbitrary, but is to be 
exercised in subordination to the rules of evidence. You 
have no right to substitute different views of the law in place 
of the rules given you by the court, nor have you the right 
to say that in your opinion this view or that view would be 
more just or equitable. You are to find the facts, but you 
must take the law from the court: Estate of Carriger, 104 
Cal. 81, 37 Pac. 785 ; Estate of Spencer, 96 Cal. 448, 31 Pac. 
453. 

XXXI. I instruct you, gentlemen, that if from all the 
evidence you find that Bertha IM. Dolbeer was of sound mind 
at the time the proposed will was executed, it makes no differ- 
ence whether you believe its provisions to be just or unjust, 



248 Coffey's Probate Decisions, Vol. 3. 

equitable or inequitable. A testatrix capable of making a 
will has a right to make an unjust will or even a cruel will, if 
she chooses, and no court nor jury have the right to deprive 
her of that privilege. You are not here to determine whether 
you would have made a will such as this, but you are to de- 
termine only whether the proposed will was made by a per- 
son of sound mind: Estate of Nelson, 132 Cal. 182, 64 Pac. 
294; Estate of Redfield, 116 Cal. 637, 48 Pac. 794; Estate of 
Langford, 108 Cal. 608, 41 Pac. 701 ; Estate of Carriger, 104 
Cal. 81, 37 Pac. 785 ; Estate of Spencer, 96 Cal. 448, 31 Pac. 
453 ; Estate of Kohler, 79 Cal. 313, 21 Pac. 758. 

XXXII. Under this law of the state a witness called by 
one party may be impeached by the other party by proof that 
such witness has made at other times statements inconsistent 
with his or her present testimony. Such proof, however, is to 
be considered by you only as affecting the credibility of such 
witness. The statements which are proved as contradicting 
his or her testimony are not evidence of the truth of the facts 
stated, but such statements are to be considered only in deter- 
mining the credibility of the witness whom it is sought to 
impeach: People v. Conlding, 111 Cal. 616, 623, 44 Pac. 314; 
People v. Collum, 122 Cal. 186, 188, 54 Pac. 289. 

XXXIII. Section 1881, Code of Civil Procedure: 
"Subd. 2. An attorney cannot, without the consent of his 

client, be examined as to any communication made by the 
client to him, or his advice given thereon in the course of pro- 
fessional employment; .... 

"Subd. 4. A licensed physician or surgeon cannot, with- 
out the consent of his patient, be examined in a civil action 
as to any information acquired in attending the patient, 
which was necessary to enable him to prescribe or act for the 
patient." 

THE ISSUE AND VERDICT. 

"Was Bertha M. Dolbeer of sound mind at the time the 
instrument offered for probate as her last will was subscribed 
by her and witnessed by Douglas S. and Arthur B. Watson?" 

"Answer — Yes. 

''PHINEAS F. FERGUSON, Foreman." 

Following is a list of the jurors: (Mr. Lundstrom was ex- 
cused on the 21st of November, 1904, the tenth day of the 



Estate of Dolbeer. 249 

hearing, owing to his illness, and the trial was continued and 
the verdict rendered by the remaining eleven jurors.) 1. 
Knut A, Lunstrom; 2. Sibbert Petersen; 3. Charles A. Slack; 
4. Edgar W. Briggs ; 5. Christopher Branagan ; 6. William 
Hencke; 7. Michael Shannon; 8. Edward Convey; 9. John 
Higgins; 10. Phineas F. Ferguson; 11. Emil Lowenberg; 12. 
William G. Copeland. 



The Principal Case was before the supreme court in 149 Cal. 227, 
86 Pac. 695, and in 153 Cal. 652, 96 Pac. 266. It was also before 
the superior court in Estate of Dolbeer, post, p. 249. 



Estate of BERTHA M. DOLBEER, Deceased. 

[No. 48; decided November 8, 1906.] 

Insanity of Testator — Burden of Proof. — In the contest of a will 
on the ground of the insanity of the testatrix, the burden is upon 
the contestant to establish his contention affirmatively by a pre- 
ponderance of evidence. 

Insanity of Testator. — It is Presumed that a Person is Sane, and 
proof of insanity at one time carries no presumption of its past 
existence. 

Will Contest— Law of the Case. — The decision by the supreme court 
rendered upon an appeal taken by a brother of the present contestant 
from a judgment against him in a contest of the will before probate, 
establishes the law governing this contest after probate, so far as 
the facts in evidence are substantially the same as those involved 
on such appeal. 

Insanity of Testator — Opinion of AccLuaintance. — Section 1870 of 
the Code of Civil Procedure permits as evidence the opinion of an 
intimate acquaintance respecting the mental sanity of a person, but 
with that opinion must be given the reasons upon which it is based, 
and the opinion itself can have no weight other than that which 
the reasons bring to its support. 

Wills — Whether Unnatural or Unjust. — The evidence in this case 
shows that the testatrix did not intend to provide for her next of 
kin as her estate had been derived from her father, between whom 
and her contesting kin there seemed to have been nothing in com- 
mon, and the testatrix had never known or cared for the omitted 
relatives, and in the drawing of the will she had before her a copy 
of her father's will, which, aa to many of the bequests, she followed 



250 Coffey's Probate Decisions, Vol. 3. 

with a fidelity indicating a respect for what she must have con- 
ceived would have been his wishes; and the will itself contains noth- 
ing irrational or unnatural or opposed to ordinary notions of equity, 
but, on the contrary, is in accord with the sentiments of affection 
resulting from the intimacy subsisting between the testatrix and her 
beneficiary, who had been her companion and confidant from girl- 
hood. Under such circumstances it cannot be contended that the will 
is at variance with natural instincts or justice. 

Testamentary Capacity — When Established. — A review of the evi- 
dence as to the habits, characteristics, conduct, manner and testa- 
mentary capac-ity of the decedent, establishes that at the date of 
the execution of the will the decedent was in full possession of her 
faculties, and competent to execute a will. 

Undue Influence — Presumption ajid Burden of Proof. — Undue influ- 
ence cannot be presumed, but must be proved in each case, and the 
burden of proof lies on the party alleging it. 

Undue Influence — When Vitiates Will. — The kind of undue influence 
that would destroy a will must be such as in effect destroys the 
free agency of the testatrix and overpowers her volition at the time 
of the execution of the instrument, and evidence must be produced 
that pressure was brought to bear directly upon her testamentary 
act. 

Undue Influence — What does not Amount to. — Surmises and sus- 
picions arising from opportunity and propinquity may be indulged 
in to an illimitable extent, but these do not constitute proof and 
must be disregarded by the court. The evidence in this case shows 
that the testatrix, at the time of executing her will, was unconstrained 
by undue influence, and is entirely in favor of the respondents. 

Bart Burke, C. J. Pence and D. C. De Grolia, for contestant 
Horatio Schander. 

G. TV. McEnerney, for Etta M. Warren. 

E. S. Pillsbury, for W. G. Mugan, executor. 

J. H. Mayer, for certain legatee respondents. 

COFFEY, J, This is an application by Horatio Schander, 
an uncle and one of the next of kin and heirs at law of de- 
cedent, to revoke the probate of an instrument filed in this 
court on July 18, 1904, purporting to be the last will of 
Bertha M. Dolbeer, executed on April 23, 190-1, and admitted 
to probate on the 22d of December, 1904. 



Estate op Dolbeer. 251 

The issues tendered by the grounds of contest are (1) the 
incompetency of the decedent to make a last will and testa- 
ment; and (2) that the decedent was unduly influenced by 
Etta Marion Warren, the principal beneficiary, to execute the 
alleged will. 

The contest came on for trial on the 29th of August, 1906, 
and the contestant introduced to support his theory of the 
case several witnesses, among them the main beneficiary. Miss 
Warren, Miss Ethyl Hager, Mrs. May Moody Watson, Ray- 
mond HoflP Sherman, Mrs. Margaret H. Warren, Miss Frances 
Stewart, ]\Irs. Elizabeth C. Phillips, Mrs. Margaret Nelson 
Bresse, Mrs. Angela Brunson, Mrs. Hilma Carson, George H. 
Tyson, John Cotter Pelton, Thomas Saywell, William Gor- 
don Mugan ; and, under stipulation, the testimony of certain 
witnesses in New York taken by deposition and ruled out in 
the former contest of Adolph Schander, which it was agreed 
would be the same if taken in this trial. 

I. As to the first issue, the unsoundness of mind of dece- 
dent at the time of making the will dated April 23, 1904, 
respondent claims that this was disposed of in the contest 
instituted by Adolph Schander by the decision of the supreme 
court rendered May 18, 1906, which declared that the evi- 
dence then produced was absolutely insufficient to have jus- 
tified the submission of the issue to a jury. 

Upon the issues presented the burden is upon the contest- 
ant to establish affirmatively and by a preponderance of evi- 
dence the unsoundness of mind of testatrix at the time of 
making the will, and the evidence is to be considered in view 
of this burden which the law casts upon him. The presump- 
tion always is that a person is sane. Proof of insanity car- 
ries no presumption of its past existence. It exists only from 
the time it is proved to exist. This is the law as declared by 
the appellate court in the appeal of Adolph Schander; but 
contestant in this case says that the decision in that contest 
does not apply here, since every case makes its own law. So 
far, how^ever, as the facts in evidence are substantially the 
same, it should seem that the principles stated by the supreme 
court should control the conclusion of this court, and I can- 
not discern any material difference in the testimony dealt 
with in detail by the appellate tribunal and that taken in this 



252 Coffey's Probate Decisions, Vol. 3. 

trial. Mrs. Phillips appears to have been the main reliance 
of contestant, who claims that her testimony is superior to 
that of a hundred witnesses such as those who testified on the 
other side; she was in place of a mother to her from dece- 
dent's childhood and knew the whole family history, and was 
most competent to express an opinion, but the supreme court 
held that this witness' opinion had no probative value in the 
other contest, and the reasons for that remark are applicable 
here, since her evidence is not essentially different. Mrs. 
Phillips thought that Hannah Dolbeer, the mother of Bertha, 
was of unsound mind when she was carrying the latter ; after 
the death of the mother she took charge of the children im- 
mediately and remained in the home on Lombard street for 
six years; after she left the German nurse took charge, and 
then Miss Millie Stewart had care of them ; subsequently Miss 
"Warren came into the family when Bertha was about eleven 
years old. ]\Irs. Phillips describes Bertha Dolbeer as of a 
quiet, undemonstrative nature; she never made any confi- 
dant; she complained of her eyes and of her head about a 
year before her death; Bertha's manner was so quiet that one 
could not say she was nervous. Mrs. Phillips noticed that her 
mind was not concentrated. When John Dolbeer died this 
witness was sent for and saw Bertha, who spoke of the shock 
the event gave her; she never acted nervous. After Mrs. 
Phillips returned from Eureka, Nevada, she saw Bertha fre- 
quently and their relations were always intimate; she occa- 
sionally said that life was not worth living without health; 
she was subject to periods of depression, and Mrs. Phillips 
did not think she was of sound mind in April, 1904, because 
of her moods, her lack of interest in life ; she was unlike her 
former self. This witness spoke to Bertha about her father's 
will and the just manner of his disposition and that she 
ought to be proud of it, and she answered that she was. 
Witness did not know whether Bertha ever had a love affair 
or whether she had any sentimental relations with anyone. 
Attended her funeral, but did not see her remains. Received 
one letter from her when she went away, did not preserve it ; 
the purport of it was that the writer was not any better. 
Her letter to Mr. Mugan from Paris was to the same effect; 
she wanted to come home. Mrs. Phillips saw that letter in 



Estate op Dolbeer, 253 

Mr. Mugan's office; remembered it because it made her feel 
so bad; Bertha's letter to witness was from the steamer; the 
first she wrote. The last time she met decedent was at her 
father's house for about fifteen minutes just prior to her de- 
parture for Europe ; it was about noon ; it may have been the 
day before ; generally speaking, Bertha was discreet, reticent, 
secretive, kind, shy. Mrs. Phillips said that to her knowledge 
neither Horatio nor Adolph Schander visited the Dolbeer 
house after a few weeks from the death of Mrs. Dolbeer. Mrs. 
Phillips' grievance against the instrument seemed to be the 
comparative smallness of the bequest made to her. She had 
said to one of the executors that she should have as much as 
$25,000, the amount bequeathed to Miss Warren's mother, 
but she denied that she demanded that amount, but the spirit 
of her remark was, as she testified, that she thought her be- ^ 
quest was small compared with that to a stranger. She had 
said that all she cared for was money, but that was on account 
of her circumstances. She thought the case ought to be com- 
promised on account of the family name ; she had facts in her 
possession unknown to contestant sufficient, if revealed, to 
break the will, but she wanted to save all trouble and to 
avoid the ignominy of having domestic history exposed on the 
trial ; so she was working for a compromise ; she desired that 
the matter should be adjusted without recourse to the courts. 
It is fair to infer from the testimony of this lady that if 
her legacy was as large as that of the m&ther of Miss Warren, 
or if she received $25,000 by way of compromise, her opinion 
would have been materially modified ; but, aside from this, an 
examination of her evidence discloses no fact justifying a de- 
duction of unsoundness of mind at the date of making the 
will, nor at any other time, within the knowledge of the wit- 
ness, and it is apparent, from her own statements, that Mrs. 
Phillips in her intercourse with decedent always treated her 
as a rational person, possessed of sound judgment, up to the 
last time she saw her, just prior to Bertha's departure for 
Europe. Her own summary of the character and character- 
istics of the testatrix shows that she exercised discretion, self- 
confrol, attention to her own affairs, capacity of considering 
the disposition of property, knowledge of what her father had 
done, and appreciation of the quality of his testamentary act ; 



254 Coffey's Probate Decisions, Vol. 3. 

"she never acted nervous"; she was a secretive girl; did not 
discuss her affairs with others ; was reticent. 

It is said by contestant that the respondent was not treated 
by John Dolbeer as a member of the family, but as an attend- 
ant and companion of and for his daughter; she entered into 
that house in that capacity and she formed the design from 
the start to obtain the money. As long as the father lived 
she kept her place, but when he died she became the master 
of the situation, and on his death in 1902, Bertha was abso- 
lutely at her mercy, and she carried out her carefully con- 
cocted scheme to control the mind of her charge; and the 
physical condition of testatrix contributing to her mental 
malady, the task of the schemer was rendered easier; but op- 
posed to this argument is the will of John Dolbeer, who 
describes Miss Warren, in leaving her a legacy, as one "who 
has been for a number of years and is now a member of my 
family." 

In commenting on this clause the supreme court has re- 
marked that John Dolbeer 's family at that time consisted in 
law strictly of himself and his daughter, and this inclusion 
of Miss Warren as a member of his family is not without its 
significance. This relation continued after his death and 
down to the decease of testatrix. The fact that she was a 
stranger in blood does not impair her standing, for our 
supreme court has held that circumstances may be such that 
failure to provide for one in such a position may be inequi- 
table : Estate of McDevltt, 95 Cal. 31, 30 Pac. 101. The will is 
not at variance with natural instincts ; on the contrary, it is 
in accord with the natural sentiments of affection resulting 
from the intimacy subsisting between the testatrix and the 
beneficiary, who had been her companion and confidant from 
girlhood. The decedent was not bound to bestow her bounty 
upon her relatives; ordinarily, there is no such obligation. 
Testatrix obviously did not intend to do so; her own state- 
ments show no disposition to favor the contesting kin. Her 
estate had been derived from her father, between whom and 
the mother's people there seemed to have been nothing in 
common, and the testatrix had never known or cared for the 
omitted relatives, and moreover, as pointed out by the appel- 
late court in the contest of Adolph Schander, in the drawing 



Estate of Dolbeeb. 255 

of the document in dispute she had before her a copy of her 
fatlier's will, which, as to many of the bequests, she followed 
with a fidelity indicating respect for what she must have con- 
ceived would have been his wishes. 

There is nothing in the instrument itself irrational or un- 
natural or opposed to ordinary notions of equity; and there 
can be no other conclusion from the evidence of the witnesses 
called by contestant than that on the day of the date of the 
paper — April 23, 1904 — she was in full possession of her 
faculties. About fifteen witnesses were examined for con- 
testant, and the sum of their testimonj^ is that testatrix was 
a bright and accomplished young woman, fond of outdoor 
sports, swimming, bicycling, equestrian exercise, an expert 
manager of automobiles, she was interested in social affairs, 
entertained her friends frequently, attended parties, indulged 
in dancing, and enjoyed society generally during the season. 
By all accounts she was an attractive personality, and an 
agreeable addition to the company of those with whom she 
chose to associate. 

One of the witnesses called by contestant knew decedent 
for about ten years and described her as normal. She com- 
plained of headaches sometimes and spoke of liver troubles, 
and had some difficulty with her eyes and bad headaches on 
that account, but after she procured certain eyeglasses she 
was relieved and had no further trouble on that score. This 
witness described decedent as phlegmatic, self-composed, most 
unexcitable, never saw her excited; she was intelligent and 
educated, fond of reading ; seemed happy ; always the same ; 
in all her conversations she appeared to be rational and abso- 
lutely of sound mind. She was not destitute of domestic 
tastes and aptitudes; was a good seamstress and busied her- 
self a great deal wdth the needle; had fine taste in dress and 
selected her own apparel after she was sixteen. 

It is asserted by contestant that the physical condition of 
decedent contributed to her mental malady. It does not ap- 
pear, however, from the evidence that her mind was at all 
affected by any corporal ailment. It is true that she was 
treated by Dr. Parson for some trouble of the liver, but dur- 
ing the time she was taking his treatment she appeared to be 
well — took exercise, long bicycle rides to the park in company 



256 Coffey's Probate Decisions, Vol. 3. 

with her young lady friends. This doctor treated her for 
about two months. She had also some complaint for which 
Dr. Lewitt prescribed, and she suffered from insomnia begin- 
ning in the autumn of 1893, for which she administered some 
medicaments, but it was nothing very serious; she was not 
depressed, not restless or nervous ; she did suffer from consti- 
pation, but during that period she received many visitors at 
her home in the evening, engaged in social conversation, 
played pool, and in various ways passed the time in agreeable 
intercourse with her friends, none of whom detected in her 
any symptoms of insanity. When she took the rest cure, it 
seems to have been the result of exhaustion produced by 
excessive attention to social obligations, and not from any 
mental disturbance. 

Dr. Moffitt, who is described as a diagnostician, visited her 
at her home about three times a week for a while; but while 
she was somewhat secluded and resting from the excitements 
of society life, her intimate acquaintances visited her without 
hindrance; and for a considerable time prior to making the 
will she was entirely exempt from the attentions of physician 
or nurse. 

Up to the time of the testamentary transaction and at that 
time there is no testimony tending to establish the theory of 
unsoundness of mind. Afterward, on the trip to Europe, it 
appears that she contracted a cold going over on the steamer, 
but she had improved by the time of her arrival in Paris. 
Still she was not feeling very well there and received some 
medical treatment for nervousness from Dr. Gros, who said 
she had "neurasthenia," but he did not say it was a severe 
case. She was nervous on her return in New York, but her 
companion was not apprehensive about her. As to the cause 
of her death, whether self-inflicted or accidental, there is no 
certainty in the record, but it is certain from the evidence 
that at the time of executing the will she had testamentary 
capacity. 

This conclusion could be reached without examining the 
evidence for respondents, which is replete with proof as to 
the integrity of her mind at and about the time of the trans- 
action. Some sixteen witnesses, intimately acquainted with 
her, testify that testatrix was a woman of strong mental 



Estate of Dolbeeb. 257 

caliber, of good disposition, calm, quiet, self-possessed, never 
ruffled, not nervous, very cheerful, expert at exercise, always 
rational in conduct and conversation. These were not per- 
sons who met her casually, but who saw her day in and day 
out, at home and abroad, and who were her constant compan- 
ions, some of whom had known her from childhood, and who 
were in the habit of daily association with her in familiar 
intercourse ; they concur in testimony that she was a person 
of more than average intellect ; one says she had an active 
brain, an alert eye, a good nerve, and was always pleasant. 
This is the tenor of their testimony, and it is entitled to great 
weight as to her general character and capacity. In addition, 
the evidence of the subscribing witness is uncontradicted and 
must be accepted. 

The instrument, having been entirely written, dated and 
signed by the hand of the testatrix herself (Civil Code, sec- 
tion 1277), did not need attestation, which she is presumed 
to have known; but she took the precaution to secure two 
witnesses, and in their presence executed it with all the for- 
malities required by the statute (Civil Code, section 1276). 
Besides this she made in her own hand a copy and placed it 
in a sealed envelope, indorsing it "last will and testament of 
Bertha M. Dolbeer, " and on the Monday after the attestation 
she deposited it in the office safe of Dolbeer & Carson, taking 
therefrom another will which she had deposited a year before. 
The original she left in the California Safe Deposit vaults 
where it was found after her death, when the envelope con- 
taining the copy was opened ; the copy had appended to it a 
memorandum setting forth where the original could be found, 
all in her handwriting. There is nothing in this to indicate 
insanity, but ever}i:hing to demonstrate a well ordered and 
strongly balanced mind. 

II. As to the second issue — undue influence — the argu- 
ment of counsel for contestant is that the paper was the prod- 
uct of the scheming of Mugan, one of the executors, and the 
principal beneficiary. Miss Warren, and he undertakes to 
give the genesis of the document and to show how it was 
developed from the suggestion of this executor, and, in sup- 
port of this theory, contestant adverts to the surroundings 
of testatrix during the last months of her life, and asks, 

Prob. Dec, Vol. Ill — 17 



258 Coffey's Peobate Decisions, Vol. 3. 

when, where, and how was this instrument written, seven 
pages of the original and a copy, almost a facsimile, in her 
handwriting? Contestant asserts, in answer to his own ques- 
tion, either Etta Marion Warren wrote that or she sat at the 
bedside of Bertha Dolbeer and controlled her hand in writ- 
ing it during the night of the 22d of April; for it was im- 
possible that decedent could have written it on the 23d of 
April ; but there is no evidence whatever to justify this extra- 
ordinary assumption, and the proof is plenary to establish the 
contrary. Contestant endeavors to discredit the testimony of 
the svibscribing witnesses, Douglas and Arthur Watson, be- 
cause the latter added unnecessarily the date of the execution 
to the will, it having been already inserted by the testatrix, 
which the witness seemed to have overlooked, and counsel 
considers this a novel feature, calculated to throw doubt on 
the authenticity of their account of what occurred, and asks, 
why did not decedent call his attention to that fact ? Clearly, 
this does not call for comment, in view of all the evidence in 
favor of the truth of the transaction. 

Counsel denounces the whole case as a very carefully con- 
cocted plot, and declares that the entire cunning, connived 
plan shows it to have been devised by a matured legal mind, 
and that all the circumstances establish a conspiracy in which 
Mugan and Miss Warren were chief actors, aided by William 
Wilson Carson and others ; but this is asserton and not proof, 
and the law is that undue influence cannot be presumed, but 
must be proved in each case, and the burden of proof lies on 
the party alleging it, and, in this contest, there is no evidence 
sufficient to warrant the allegation of contestant. The kind 
of undue influence that would destroy the testament must be 
such as in effect destroyed the free agency of the testatrix 
and overpowered her volition at the time of the execution of 
the instrument, and evidence must be produced that pressure 
was brought to bear directly upon the testamentary act ; and 
there is no such evidence in this case. Surmises and suspi- 
cions arising from opportunity and propinquity may be in- 
dulged in to an illimitable extent, but these do not constitute 
proof, and must be disregarded by the court. 

The evidence on each and both of the issues being the same 
in effect, it is not necessary to repeat what has been said. 



Estate of Berq. 259 

The decedent at the date of writing the instrument and of 
executing it in the presence of witnesses was of sound mind, 
unconstrained by undue influence, and the evidence being 
entirely in favor of the respondents, the petition of contestant 
should be and it is denied. 



The Principal Case was before the supreme court on appeal in 149 
Cal. 227, 86 Pac. 695, and in 153 Cal. 652, 96 Pac. 266. It was also 
before the superior court in Estate of Dolbeer, ante, p. 232. 



Estate of SINA BERG, Deceased. 

[No. 6,447; decided December 23, 1908.] 

Executor According to the Tenor. — Where It Appears from the 
Terms of a will that it was the intention of the testator to appoint 
a certain person executor, although not named as such in the will, 
courts will be guided by the intention so expressed and make the 
appointment. 

Executor According to the Tenor. — Courts do not Look with Favor 
upon the appointment of an executor "according to the tenor," but 
will rather appoint an administrator with the will annexed. 

Executor According to the Tenor. — Before a Person Who is not 
Directly named as executor can receive an appointment "according 
to the tenor," not only must his identity be certain, but the court 
must be able to conclude from the language of the will itself that 
there is a testamentary intent that he shall take charge of the estate 
to perform the duties usual to an executorship. 

Executor According to the Tenor. — A Person will not be Appointed 
executor according to the tenor unless there is some expression in 
the will clothing him with at least some of the duties and powers 
of an executor. 

Application by Gaston E. Bacon for the probate of a will 
and for the letters testamentary thereon as executor accord- 
ing to the tenor of the will ; and application by the public 
administrator for letters of administration with the will an- 
nexed. 

William Penn Humphreys and Herbert Choynski, for the 
first application, 

Cullinan & Hickey and John J. 'Toole, for the second 
application. 



260 Coffey's Probate Decisions, Vol. 3. 

COFFEY, J. Decedent testatrix was a single woman, aged 
about forty-five, a native of Norway, and died in Sonoma 
county, California, in August, 1908, leaving estate in San 
Francisco, and leaving a last will and testament in the Nor- 
wegian language, entirely written, dated, and signed by her 
OAvn liand, which, translated, reads as follows. 

"2695 Sacramento St. 
"Mrs. Pauline Lyng, 

"If there is any money left by me when I die, I wish that 
you shall have it, also my watch and my clothes. I have no 
relatives here and this my wish must not be changed. 
"This I wrote the 25th day of February, 1904. 

"SINABERG. 
"If you should need somebody to assist you in this matter 
ask Mr. Bacon. Mr. Bacon will help you because Mr. and 
Mrs. Bacon were always good to me. 

"SINA BERG." 

Mrs. Lyng filed her renunciation of any rights which she 
might have had as executrix, and requested that the court ap- 
point "Mr. Bacon," named in said will, as executor. 

It will be noticed that in the will no one is directly named 
as executor. It is claimed in behalf of Dr. Bacon that it 
appears from the said will that by its terms he was appointed 
executor according to the tenor of the will, 

"Where it appears, by the terms of a will, that it was the 
intention of the testator to commit the execution thereof and 
the administration of his estate to any person as executor, 
such person, although not named executor, is entitled to let- 
ters testamentary in like manner as if he had been named 
executor"; Civ. Code, sec. 1371. 

The argument of Dr. Bacon's counsel is that it was the 
intention of the deceased to commit the administration of her 
estate to him, and that this is strengthened by the evidence 
introduced. 

Miss Berg was a hard-working woman of but little worldly 
experience, while Dr. Bacon is a man of property, accus- 
tomed to financial affairs and for many years Dean of the 
College of Pharmacy of the State University. Miss Berg 
had worked five years at his house, and her will shows that 



Estate op Berg. 261 

she had great confidence in his judgment, kindliness, and in- 
tegrity. 

This estate is so small that the commissions allowed its 
executor certainly are no great inducement for any business 
man to give his time and attention to its administration, and 
it is fair to infer that it is solely because of his relation to 
the deceased that Dr. Bacon has made his application. 

If it be asked why Mrs. Lyng has not also petitioned as 
executrix, it is replied that she is also a working woman with 
full confidence in Dr. Bacon, and that the record shows that 
she has renounced any rights which she may have had as 
coexecutrix under said will, and has requested that the court 
appoint Dr. Bacon to act as executor. 

The public administrator has petitioned for letters of ad- 
ministration with the will annexed, and the only question 
before the court is to which of these applicants letters should 
issue. 

The authorities upon this subject are not very numerous. 

"Each ease is a construction of a particular document": 
In re Goods of Way, L. R. Prob. D. 1902, 345. 

"The appointment of an executor may be express or con- 
structive, and although no executor be expressly nominated 
in the will by the word 'executor,' yet if, by any word or 
circumlocution, the testator recommend or commit to one or 
more the charge and office, or other rights which appertain 
to an executor, it is tantamount to an express appointment of 
an executor. 

"But it seems not to be essential to constitute an executor 
according to the tenor of the will, that express authority- 
should be given to him to collect and pay the debts. If the 
duty imposed and the authority given necessarily imply the 
right to receive the testator's goods and collect his debts, it 
will be sufficient": Grant v. Spann (1851), 34 Miss. 302. 

"The testator did not in his will nominate an executor in 
express terms. But as he confided to the persons whom he 
denominated trustees the execution of his will and conferred 
upon them the rights which appertain to an executor, it 
amount's to a constructive appointment of them to the office, 
and although called trustees by the testator, they were also 



262 Coffey's Probate Decisions, Vol. 3. 

his executors according to the tenor of the will": Myers v. 
Daviess (1850), 10 B. Mon. 396. 

"The use of the word 'executor' is not essential to the ap- 
pointment of a person to execute a will. An executor may be 
appointed expressly or constructively, and designated by com- 
mitting to his charge those duties which it is the duty of an 
executor to perform ; by conferring those rights which belong 
to the office or by any other language from which the inten- 
tion of the testator to invest him with that character may be 
inferred": Carpenter v. Cameron (1838), 7 Watts, 51. 

"Where a person was charged with the disposition of the 
estate and authorized and directed to carry out the intention 
of the testator, though not named as the executor of the will, 
it made him the executor as fully as if named as such": 
Stone V. Brown (1856), 16 Tex. 430. , 

"The appointment of an executor may be express or con- 
structive, and though a person be not appointed executor by 
that name, yet if the testator commit to his charge duties 
ordinarily performed by an executor, it is the testator's in- 
tention to invest him with that capacity": Ex parte McDon- 
nell (1851), 2 Brad. Sur. (N. Y.) 32; Fleming v. Boiling 
(1801), 3 Call, 75. 

"The testator's declaration that A B shall have his goods 
to pay his debts and otherwise to dispose at his pleasure and 
other such like expressions will suiBce for such appoint- 
ment": Henfrey v. Henfrey, 4 Moore P. C. 33. 

So, too, the commitment of one's property to the "adminis- 
tration" or to "the disposition" of A B; or the direction that 
A B shall pay debts and funeral expenses and probate 
charges : Goods of Fry, 1 Hagg, 80 ; Schouler on Executors, 
3d ed., sec. 36, 

A will read: "I do hereby request J. Channon or C. B. 
Taylor to have my body buried at Laurel Hill. Pay to my 
niece, etc. Pay all my honest debts." The court said: "No 
express words are necessary in a will to appoint an executor. 
The appointment may be made by necessary implication." 
To the same effect are : Nunn v. Owens, 2 Strob. 101 ; State v. 
Rogers, 1 Houst. 569 ; Goods of Fraser, L. R. 2 P. & D. 183 : 
Hartnett v. Wandell, 60 N. Y. 350, 19 Am. Rep. 194 ; In re 
Goods of Cook, L. R. Prob. D. 1902, 114: In re Goods of 



Estate op Berg. 263 

Kirby, L. R. Prob. D. 1902, 188; Bayeaux v. Bayeaux, 8 
Paige Ch. 333. See Crosswell on Executors, pp. 51, 52 ; 
Williams on Executors, 10th ed., pp. 165-168. 

It is the statute law of California, and of nearly all the 
other states of the Union, and a well-defined principle of com- 
mon law, that where it appears from the terms of the will 
that it was the intention of the testator to appoint a certain 
person executor of his will, although not named as executor 
in the will, that courts will be guided by the intention so 
expressed and make the appointment. This principle is laid 
down in section 1361 of the Civil Code of California. 

While the foregoing is a well-settled principle of both code 
and common law, it is equally well settled that courts do not 
look with favor upon the appointment of an executor "ac- 
cording to the tenor," but will rather appoint an adminis- 
trator with the will annexed who will administer the estate 
under the guidance of the court, and make distribution of 
the property of the decedent in conformity with the terms 
of the will. See Hartnett v. Wandell, 2 Hun, 552, where the 
court said: "The appointment of an executor, by construc- 
tion or implication, is not favored, and in doubtful cases ad- 
ministration with the will annexed must be resorted to." 

The courts are a unit on the proposition that before a per- 
son who is not directly named as executor can receive an ap- 
pointment according to the tenor, not only must the identity 
of the person be certain, but the court must be able to con- 
clude from the language of the will itself, that there is a 
testamentary intent that the party named should take charge 
of the estate, collect the assets and liquidate the indebtedness, ^ 
and perform the duties and possess the powers usual to execu- ! 
torship. See Schouler on Executors, 3d ed., pp. 49, 50; also 
In re Hill's Estate, 102 Mo. App. 617, 77 S. W. 110, where 
the court said: "The appointment of an executor may be 
constructive, no particular form of appointment, nor the use 
of the word executor is required. Any language adopted in 
the will, which expressly or by implication clothes a given 
party with authority and duty of an executor will be held to 
constitute such appointment; but the court must be able to 
gather a testamentary intent that the party named should 
take charge of the estate, collect the assets and liquidate the 



264 Coffey's Probate Decisions, Vol. 3. 

indebtedness and perform the duties and possess tlie powers 
usual to executorship." 

The foregoing language was used by the court in constru- 
ing the following provision of the will of the decedent. 
"19th I desire P. H. Brennan to direct anything that may be 
done about my St. Louis affairs in connection with this will, 
his address is 8161/2 Chestnut street, St. Louis, Mo." After 
an exhaustive opinion on the subject the court denied the ap- 
plication of Brennan to be appointed executor. 

Woerner in his "American Law of Administration," 
volume 2, star pages 503, 504, says: "The test of a construc- 
tive appointment as an executor according to the tenor of a 
will may be found by considering whether the acts to be done, 
or the power to be executed by the person are such as pertain 
to the office of an executor." 

In Cyclopedia of Law and Procedure, volume 18, page 76. 
the following rule is stated: "Executorship according to the 
tenor will not be granted where the will does not import that 
the person named shall collect dues, pay debts and legacies 
and settle the estate like an executor. The mere designation 
to perform some trust or to be guardian is not sufficient." 

In State v. Watson, 2 Spears (S. C), 97, Samuel Mayrant, 
the brother in law of deceased, and Mrs. Simmons, her sister, 
were by the will appointed guardians of the children of de- 
ceased, and deceased in the concluding paragraph of her will 
stated: "And it is my desire that this should be carried into 
effect by my brother in law Samuel Mayrant." After the 
death of deceased Mayrant contended that by virtue of the 
concluding paragraph of the will he was entitled to be ap- 
pointed executor. In denying his application the court said ; 
"To constitute one an executor according to the tenor it is 
necessary that he should have the charge and office or right 
of an executor. Does this will cast upon him the right of an 
executor 1 There is nothing to show that he is to have control 
of the property. He is not directed to sell or divide it. He 
is not directed to pay the debts. Indeed, there is nothing in 
the will which in the remotest degree can be considered as 
placing him in the stead of executrix, and conferring on him 
her rights. To be an executor, his authority must arise from 
the will, and unless there be a clear intent to constitute the 



Estate of Berg. 265 

person claiming to be so regarded the executor, Le never 
ought to be so appointed according to the tenor." 

To apply the law as above set forth to the case at bar, the 
court need only consider the will of the deceased. There is 
nothing contained in the will from which the court can reason 
that it was the intention of the testatrix to appoint her friend 
Dr. Bacon; he is not requested, by either direct words or by 
inference to take charge of the property of the deceased, to 
pay her debts, collect moneys due to her, distribute her prop- 
erty, pay her legacies, or to do anything whatsoever regard- 
ing her estate; he is not requested, directly or indirectly, to 
do or perform any act which usually falls to the lot of an 
executor. Yv^e can read nothing into the will, and can only 
consider the meaning of its words, and certainly, the direction 
given by the testatrix to the legatee that ' ' If you should need 
somebody to assist you in this matter ask Mr. Bacon. Mr. 
Bacon will help you, because Mr. and Mrs. Bacon were al- 
ways good to me," means nothing more than they directlv 
express, if you as legatee under my will have any trouble in 
obtaining your legacy, ask Mr. Bacon, and he will assist you 
in getting it. This is not a direction to Dr. Bacon to carry 
out the bequests of testatrix; it is not a direction to him to 
take charge of her estate, to collect dues, to pay debts, or to 
do anything whatsoever for the deceased. Dr. Bacon is to 
perform no service for the deceased; any service that he is 
to render is to the legatee. Dr. Bacon can do nothing in the 
premises until the estate is ready for distribution, and then 
if the legatee should need anyone to assist her in obtaining 
her legacy, she is directed to go to Dr. Bacon, and Bacon 
will assist her in obtaining it from the person holding the 
administration of the estate. This is the only construction 
that can be placed on the words of the wall. 

There is no doubt that the deceased held Dr. Bacon and his 
family in high esteem, and that no motive other than a wish 
to show his appreciation of this esteem prompts the doctor to 
ask that the administration of this estate should be given into 
his charge, but still the court can construe the will only as it 
is written, and no amount of evidence as to the mutual esteem 
and confidence existing between the parties can swerve the 
court from this duty. The same words in a will used from 



266 Coffey's Probate Decisions, Vol. 3. 

a husband to his wife or from a father to his son would not 
give the wife or the son the right to the appointment of exec- 
utrix or executor, and they would be compelled to resort to 
administration with the will annexed, and this is the principle 
that must govern the court in deciding this matter, and no 
matter what the relation was that existed betvv'een the parties, 
it is only the words of the will that can be considered. 

It is a well-settled principle that administration of estates 
must go as the law directs, irrespective of feeling in the 
premises. 

There is no direction to Dr. Bacon to take charge of the 
property which deceased might leave. Testatrix disposes of 
her money to Mrs. Lyng, and ]\Irs. Lyng is told that if she 
has any trouble in getting this money to go to Dr. Bacon. 
But there is no direction to Dr. Bacon to give this money to 
Mrs. Lyng, nor is there any direction to Dr. Bacon to take 
charge of or dispose of the interest of testatrix in the restau- 
rant or in the schooner; if it was the intention of the testa- 
trix that he should act as executor she would have mentioned 
these other properties to him. 

The court can only conclude that the will of testatrix ex- 
pressed a wish that Dr. Bacon should befriend Mrs. Lyng. 
if she needed assistance in obtaining her legacy from the 
person or persons having charge of the estate, and Dr. Bacon 
can only come before the court as the representative of Mrs. 
Lyng and not of the deceased. 

Counsel for Dr. Bacon has cited authorities in support of 
his contention, but they only substantiate the principle laid 
down in the Civil Code of California that an executor need 
not be expressly named as such, which is not disputed, but 
in each of these cases where the court did appoint the exec- 
utor petitioning, there was some expression in the will which 
clothed the person named with at least some of the duties and 
powers of an executor, which expression is lacking in the case 
at bar. 

Application of Dr. Bacon denied. 

Application of public administrator granted. 



Estate of Hanson. 267 



Estate op JOSEPHINE HANSON, Deceased. 

[No. 5,151; decided January 27, 1909.] 

Will — Whether Creates Charity or Personal Bequest. — A clause in 
a will "the residue (if any) I leave to my executor M., to dispose 
in charities as he think best," creates a personal bequest. 

Wills. — Wliere Absolute Discretion to Dispose of Property is left 
with a residuary legatee, this is equivalent to a personal legacy. 

Trust. — Three Conditions must Concur in order that a power be 
deemed a trust or that the specified beneficiaries take trust interests 
by implication in default of appointment: Imperativeness of request 
that donee execute the power; certainty of subject matter; and cer- 
tainty of object. 

Trust. — ^ITo Recommendatory Terms of a Will expressing a will, 
desire or the like are sufficient to create a trust, unless there is 
certainty as to the parties to take and what they are to take. 

Charities. — A Degree of Vagueness is allowable in charitable be- 
quests. 

Thomas E. Haven, for the executor. 

COFFEY, J. 1. The bequest in the sixth clause of the 
will of Josephine Hanson, deceased, is a bequest to William G. 
Mugan. It reads as follows: 

"The residue (if any) I leave to my Executor Wm. G. 
Mugan to dispose in charities as he thinks best. I hereby 
name as executor of this my last will and testament William 
G. Mugan to serve without bonds." 

Authority to dispose of property at discretion, there being- 
no bequest over, is taken as evidence of the extent of the 
interest intended to be given ; and it is construed to be an 
absolute interest, and not a mere power to sell : Kendell v. 
Kendell, 36 N. J. Eq. 91. 

Where absolute discretion is left with the residuary legatee, 
it is equivalent to a personal legacy. 

**In general, a testator may leave his property to whomso- 
ever he pleases, but he may give to any person a power of 
disposal over all or any part of his property. In the latter 
case, the donee of the power may exercise it in his own favor, 
and the gift is almost equivalent to an absolute gift to the 
donee": Tyssen on Charitable Bequests, 181. 



268 Coffey's TriOBATE juecisions, Vol. 3. 

A specific charitable gift followed by a gift of residue of 
personalty, and the proceeds of realty to executors, "to be 
disposed of to such person and persons and in such manner 
and form and in such sum and sums of money as they in 
their discretion shall think proper and expedient," held a 
general power of appointment, exercisable by the executors 
for their own benefit: Tyssen on Charitable Bequests, 183; 
Gibbs V. Eumsey, 2 Ves. & B. 294. 

By a Avill, the residue of the testator's estate, after pay- 
ment of debts and legacies, was given to the executors "to be 
disposed of as they may think proper," held that the execu- 
tors took beneficiallj^ discharged of any trust for the next of 
kin : Ralston v. Telfair, 17 N. C. 225. 

A bequest to executors, in their own right, "trusting never- 
theless, and believing that with a proper sense of their obli- 
gation to their own consciences and their accountability to 
God, they will pay over and contribute the sum to charitable 
objects," creates no trust enforceable in a court of equity. 
The executors took in their own right, amenable only to their 
own consciences for the distribution of the bequest: Frierson 
V. General Assembly of the Presbj^terian Church, 54 Tenn. 
G83. 

2. Mr. Justice Gray, of the supreme court of the United 
States, in speaking of charitable uses and trusts, says: "They 
may and indeed must be for the benefit of an indefinite num- 
ber of persons, for if all the beneficiaries are personally desig- 
nated the trust lacks the essential element of indefiniteness 
which is one characteristic of a legal charity": Russell v. 
Allen, 107 U. S. 163, 2 Sup. Ct. 327, 27 L. Ed. 397. 

A gift to be applied for the promotion of agricultural or 
horticultural improvements, or philosophic or philanthropic 
purposes "has been held a good charitable bequest'": Rotch v. 
Emerson, 105 Mass. 431. 

In Snider v. Snider, 70 S. C. 555, 106 Am. St. Rep. 754, 
50 S. E. 504, the court says : ' ' The question therefore presented 
is whether the bequest to these unincorporated societies was 
void for uncertainty, no trustees being named and no specific 
purposes being mentioned to which the fund was to be ap- 
plied. Held, that a degree of vagueness is allowable in 
charitable bequests and the bequests are valid. 



Estate op Hanson. 269 

In the case at bar there was no trust attempted to be 
created. Had the executor been named as the trustee, still 
the bequest would have been valid under the foregoing rule 
as to indefiniteness being an essential element of charitable 
bequests. 

The fact that the legatee Mugan was not charged with the 
duties of a trustee makes the case more clearly one wherein 
the bequest must be construed valid. 

The authorities on indefiniteness of charitable bequests are 
collated in a note to In re Gibson, 1 Cof. Pro. Dec. 9, Ross' 
Annotations. 

3. Three conditions must concur in order that the power be 
deemed a trust or that the specified beneficiaries take trust 
interests by implication in default of appointment: (1) Im- 
perativeness of request that donee execute the power; (2) cer- 
tainty of subject matter; and (3) certainty of object: Lines 
V. Darden, 5 Fla. 51 ; Gilbert v. Chapin, 19 Conn. 342 ; Briggs 
V. Penny, 3 Man. & G. 554; Harding v. Glyn, 1 Atk. 469; 2 
White and Tudor 's Leading Cases in Equity, *946 and note. 

The rule laid down by Mr. Justice Story in his Commen- 
taries on Equity Jurisprudence, section 1070, cited by the 
United States supreme court in Howard v. Carusi, 109 U. S. 
732, 3 Sup. Ct. 575, 27 L. Ed. 1089, is as foEows: ''When- 
ever the objects of a supposed recommendatory trust are not 
certain or definite, whenever the property to which it is to 
attach is not certain or definite, whenever a clear discretion 
or choice to act' or not to act is given, whenever the prior dis- 
positions of property impart absolute and uncontrollable 
ownership, in all such cases, the courts of equity will not 
create a trust from words of this character." 

No recommendatory terms of a will, expressing a will, de- 
sire, or the like, are sufficient to create a trust, unless there 
be certainty as to the parties to take and what they are to 
take: Lines v. Darden, 5 Fla. 51; Gilbert v. Chapin, 19 Conn. 
342. 

4. "A will is to be construed according to the intention of 
the testator. Where his intention cannot have effect to its 
full extent, it must have effect as far as possible".: Cal. Civ. 
Code, sec. 1317. 



270 Coffey's Probate Decisions, Vol. 3. 

It was evidently Mrs. Hanson's intention that the residue 
of the estate should go to Mr. Mugan. 

The sixth clause of the will of Josephine Hanson should be 
construed to be a personal bequest of the residue of the estate 
of said deceased to the executor, "William G. Mugan. 

Application for distribution granted in accordance with the 
foregoing authorities. 



Estate of JOHN FAY, Deceased. 

[No. 26,323; decided July 31, 1905.] 

Community Property. — The Declarations of a Person Since Deceased 
are admissible to show that his estate is community property. 

Community Property — Intermingling of Funds. — Separate property 
intermingled with community property so that its identity is lost 
becomes itself a part of the community estate. 

Trust — When Expires — Parol Evidence. — The trust in this case ex- 
pired twenty-five years after the execution of the will, which bears 
date May 25, 1859. This being the plain language of the will, it 
cannot be changed by parol evidence. 

Trust — When Void as Creating Perpetuity. — The trust which the 
testator attempted to create in this case is void as offending the 
rule against perpetuity. 

Will — When Void for Uncertainty. — If the intent of a testator 
in reference to a particular gift cannot be deduced from the face 
of the will, the gift fails and there is a partial intestacy as to the 
subject matter thereof. 

Bart Burke, for the petitioner. 

Louis S. Beedy, for the opponents. 

COFFEY, J. There are two questions to be determined 
on this application: 1. Is the property of the estate commun- 
ity or separate property? 2. Is the trust clause "6" of the 
will valid or invalid? 

1. Petitioner refers to the testimony of Edward ]\I. Buck- 
ley and his wife, Mrs. Buckley, who each testify as to the 
declarations of John Fay, deceased, made as late as 1900— 
to the effect that all his estate was community property. 



Estate op Fay. 271 

Such was also the testimony of Mary "Waller, John Fay and 
Luke Fay. 

The declarations of deceased properly admitted to show the 
fact, and that property was a gift : Arkle v. Beedie, 141 Cal. 
461, 74 Pac. 1033; Higgins v. Higgins, 46 Cal. 263; Read v. 
Rahm, 65 Cal. 344, 4 Pac. Ill ; Tillaux v. Tillaux, 115 Cal. 
672, 47 Pac. 691; Kaltschmidt v. Weber, 145 Cal. 596, 79 
Pac. 272. 

The only property owned by John Fay at the time of his 
marriage was the one-half of lot 693 on Chestnut street upon 
which the soap factory was located. His marriage occurred 
on May 7, 1860. On June 19, 1866, he became financially em- 
barrassed and transferred his property to David Fay for ten 
thousand dollars ($10,000) — deed read in evidence. On the 
same day, David Fay transferred the same by deed of gift 
to Bridget M. Fay as her separate property. Thereafter, on 
March 2, 1870, a deed was made by John Fay and Bridget 
M. Fay to David Fay for the same property. The same day 
David Fay conveyed the property to John Fay for $10,000. 

When Bridget M. Fay made the deed dated March 2, 1870, 
it was agreed by all the parties that the property was to be 
community property. Such also is the presumption of law. 

Luke testifies as to the declarations and agreement of the 
parties when the deeds were made. 

The following is the law controlling this state of facts : 
"All property acquired after marriage by either husband or 
wife not included in the statutory exceptions is presumed to 
be community property, and whether it has undergone 
changed conditions or not, the burden of proof is upon the 
party claiming it to be separate property, to establish that 
fact by clear and convincing evidence, and the separate prop- 
erty must be clearly traced and located, by plain and con- 
nected channels, and not by way of surmise and probabili- 
ties": Civ. Code, sec. 164; Rowe v. Ilibernia etc. Loan Soc, 
134 Cal. 403, 66 Pac. 569 ; Fennell v. Drinkhouse, 131 Cal. 
448, 82 Am. St. Rep. 361, 63 Pac. 734. 

Money deposited in bank by wife after marriage held pre- 
sumed community property: In re Boody, 113 Cal. 682, 45 
Pac. 858. 



272 Coffey's Probate Decisions, Vol. 3. 

The declarations of Imsband and wife may be received 
when made in the presence of each other to show an agree- 
ment between them that the property is separate or com- 
munity property as the case may be: Hoeck v. Grief, 142 
Cal. 119, 75 Pac. 670. 

Rule: ''When the separate property or funds of either 
spouse is intermixed or commingled with community prop- 
erty, so that the separate property has lost its identity and 
cannot clearly be traced or segregated, the community, being 
the paramount estate, draws the whole mass to it, and it be- 
comes community property": Ballinger on Community Prop- 
erty, sees. 41, 64, 68. 

"The general rule laid down is, that such confusion works 
a forfeiture of the separate character of the property so com- 
mingled": Ballinger on Community Property, sees. 44, 64, 
68. 

Money advanced by a third party for the purchase of land 
by the husband is community property in the hands of the 
husband : Perry v. Ross, 104 Cal. 15, 43 Am. St. Rep. 66, 37 
Pac. 757. 

The evidence fails to trace any separate funds of John Fay 
into any piece of his property, except the factory lot and 
that, as we have shown, afterward became community prop- 
erty by the transfers and agreement of the parties above 
mentioned, so that the testimony produced by deposition, 
if admissible, which it was not, is ineffective to show the 
funds therein mentioned to have been invested in any part 
of the property belonging to the estate, and nearly the whole 
of the amounts mentioned therein was stated to have been 
received prior to the deed of gift above referred to, and conse- 
quently cannot avail contestants. So that in whatever phase 
the matter presents itself, the entire estate is shown to be 
community property. 

The trust clause " 6 " of the will is as follows : 

"I will all my separate property and all my share of the 
community property of every description, name and nature, 
both real and personal to my brother, David Fay, and my 
son, John Fay, IN TRUST for the benefit of my three chil- 
dren, Luke Fay, Mary Montealegre and John Fay. 



Estate of Fay. 273 

"The said David Fay and John Fay or either of them to 
hold and manage said property for the space of twenty-five 
years from this date; they shall keep the property in repair, 
pay all expenses and divide the income from said property 
monthly or quarterly between my children Luke, May and 
John or their children if they should have any if either of 
my children should Die without Lawful children of their 
body then the survivor shall inherit their share should all 
of my children die Before the expiration of this trust ivitliout 
Lawful children it is my wish that my sister Mary J. Scott 
or Iler children should Inherit or have all of my share of 
the Estate, David Fay or my son John Fay will Act or 
Manage the property without giving Bonds. 

''JOHN FAY." 

The trust, if valid, expired twenty-five years after date of 
will, and the will bears date May 25, 1859. This is the plain 
language of the will and cannot be changed by parol evi- 
dence: Civ. Code, sec. 1318; Estate of Young, 123 Cal. 337, 
55 Pac. 1011 ; Randolph on Commercial Paper, sec. 77, and 
cases cited. 

2. "It is the duty of the court on distribution to give effect 
to the legal devises and bequests of the testator, and it could 
not even with the consent of the parties declare valid trusts 
such as are opposed to the express mandate and policy of the 
law": In re Walkerly, 108 Cal. 659, 49 Am. St. Rep. 97, 
41 Pac. 772, and cases cited. 

As to the intent of the testator, see In re Walkerly, 108 
Cal. 652, 659, 660. 

Such trust is void as to real and personal property : In re f 
Walkerly, 108 Cal. 656 ; although in some states held other- 
wise : In re Walkerly, 108 Cal., see pp. 646 to 651, discussion 
by the court. 

The trusts are void as suspending the absolute power of 
alienation for a period of years prohibited by the code: Civ. 
Code, sees. 679, 715, 716, 749, 889; Chaplin on Suspension 
of Alienation, sees. 64, 123 ; Hone v. Van Sehaick, 20 Wend. 
566; Barnum v. Barnum, 26 Md. 119, 90 Am. Dec. 88; 
Haynes v. Sherman, 117 N. Y. 433, 439, 22 N. E. 938 ; Gar- 
vey V. McDevitt, 72 N. Y. 562; Henderson v. Henderson, 46 
Hun, 509 ; Underwood v. Curtis, 127 N. Y. 541, 28 N. E. 585 ; 

Prob. Dec, Vol. Ill —18 



274 Coffey's Probate Decisions, Vol. 3. 

Rice V. Barrett, 102 N. Y. 164, 6 N. E. 898 ; Cruickshank v. 
Home etc., 113 N. Y. 351, 21 N. E. 64, 4 L. R. A. 140 ; Haw- 
ley V. James, 16 Wend. 123, 134, 172 ; Schettler v. Smith, 41 
N. Y. 328; Coster v. Lorrillard, 14 Wend. 265 (as to aliena- 
tion) ; Whitney v. Dodge, 119 Cal. 192, 196, 197, 38 Pac. 636 ; 
Crew V. Pratt', 119 Cal. 139, 51 Pac. 38; Estate of Cavarly, 
119 Cal. 406, 51 Pac. 629. 

"When the vesting of an estate devised may be postponed 
; during the life of a person not in being at the death of a 
' testator, such postponement is a violation of the rule against 
perpetuities, and renders the devise void": Owlsley v. Harri- 
son, 190 111. 235, 60 N. E. 89 ; Eldred v. Meek, 183 HI. 26, 75 
Am. St. Rep. 86, 55 N. E. 536 ; Schuknecht v. Sehultz, 212 
111. 43, 72 N. E. 37. 

"No interest subject to a condition precedent is good unless 
the conditions must be fulfilled, if at all, within twenty-one 
years after some life in being at the creation of the interest" : 
Gray on Perpetuities, sec. 201; Lawrence v. Smith, 163 111. 
149, 45 N. E. 262; Howe v. Howe, 152 111. 252, 38 N. E. 1083. 

"It is not enough that a contingent event may happen, or 
even that it will probably happen, within the limits of the 
rule against perpetuities; if it can possibly happen beyond 
those limits, an interest conditioned on it is too remote": See 
' In re Winter, 114 Cal. 186, 45 Pac. 1063 ; Estate of Steele, 124 
Cal. 537, 57 Pac. 564 ; Gray on Perpetuities, sees. 214, 369. 

"It is the duty of courts to give the rule against perpetui- 
ties effect, and not destroy its efficacy by adverse construc- 
tion": See In re Winter, 114 Cal. 186, 45 Pac. 1063; Law- 
rence V. Smith, 163 111. 149, 45 N. E. 262; Coggins' Appeal, 
124 Pa. 1036, 10 Am. St. Rep. 565, 16 Atl. 579 ; Post v. Rohr- 
bock, 142 111. 600, 32 N. E. 687 ; Schuknecht v. Sehultz, 212 
111. 43, 72 N. E. 37. 

"Testator left a son and three grandchildren, sons of the 
son, and a clause of the will gave the son property until tes- 
tator's youngest grandson should attain the age of twenty- 
five, when it was to be divided among the grandchildren. 
Held, that the will was void for remoteness, as not being 
clearly limited to the grandchildren then living": Schuk- 
necht V. Sehultz, 212 111. 43, 72 N. E. 37. See, also, this case 
as to when limitation takes effect, page 39, and who are in- 



Estate op Fay. 275 

eluded in the class. If particular estate intervenes, etc., then 
all who answer to the class at termination of such estate are 
included. 

*'A trust attempted to be created by w'ill for the use of a 
man and his children is invalid as contravening the rule 
against perpetuities, unless it appears from the context that 
only those children actually in esse at the death of the tes- 
tator are intended to share in the benefit": Towle v. Doe, 97 
Me. 427, 54 Atl. 1072. 

The will is void for uncertainty : Civ. Code, sec. 1318 ; Es- 
tate of Young, 123 Cal. 341, 55 Pac. 1011. 

"If the intent of the testator in reference to a particular 
• bequest or devise cannot be deduced from the face of the will, 
the bequest or devise fails, and there is a partial intestacy, 
as to the subject matter thereof." 

If the legal effect of a testator's expressed intent is intes- 
tacy, it will be presumed he designed that result. 

"It is never at liberty [the court] to supply omissions or to 
wrest language from its plain import, and give it such a 
meaning as it may be guessed the testatrix would have in- 
tended if she had known that her own efforts to create a legal 
devise had resulted in failure": In re Walkerly, 108 Cal. 659, 
49 Am. St. Rep. 97, 41 Pac. 772 ; Estate of Young, 123 Cal. 
343, 344, 55 Pac. 1011. 

Finally, clause "6," if valid, devises a fee to Luke and 
John in the first part of the clause with merely precatory 
words expressive of the wishes of the testator that in a cer- 
tain contingency, "it is my wish" that my sister Mary J. 
Scott, or her children should inherit or have all my share of 
the estate: Snodgrass v. Brandenburg, 164 Ind. 59, 71 N. E. 
137, 72 N. E. 1030, and cases cited. 

The application of the executor is granted. 



>, What is Community Property is the subject of a note to Estate of 

Foster, 4 Cof. Pro. Dec. 



276 Coffey's Probate Decisions, Vol. 3. 



Estate of JOHN DEVENNEY, Deceased. 

[No. 5,238; decided February 23, 1909.] 

Destroyed Will. — On an Application to Probate a Will destroyed 
in the lifetime of the testator by a public calamity, such as the 
destruction of a city by fire, the proponent must establish such 
destruction and show that it was without the knowledge of the 
testator, and also prove the provisions of the will by clear and 
distinct evidence from at least two credible witnesses. 

Destroyed Will. — Where a Testator Leaves His Will in the Office 
of his attorneys, and thereafter to his knowledge the building in 
which the office is located is destroyed by fire, the will cannot be 
probated after his death as a lost or destroyed wiU. 

Application for probate of a burned and destroyed will 
under section 1339, Code of Civil Procedure. . 

John B. Carson and Joseph Slye, for proponent Henry M. 
Donahue. 

McElroy & Stetson, J. E. McElroy and John W. Stetson, 
for Sarah Feeley, opponent. 

COFFEY, J. John Devenney died February 3, 1908, in 
San Francisco, being a resident thereof, and leaving estate 
therein. 

On Februaiy 13, 1908, Henry M. Donahue filed an applica- 
tion, through his attorney, John B. Carson, for the probate of 
an instrument alleged to be the last will of the decedent 
dated February 21, 1905, in which the applicant was named 
as executor. The information upon which the petitioner 
based his belief as to the execution and contents of the will 
was derived from the attorney who drew the same and one of 
the subscribing witnesses, Thomas Dillon. The statements 
of these affiants, who were also witnesses on the hearing, show 
that the will was written by the attorney at the dictation of 
decedent in the presence of Carson, Dillon and Michael Flan- 
nery, the second subscribing witness, and signed and sub- 
scribed according to the requirements of the statute. 

Devenney was about seventy years of age, and in all re- 
spects competent to make a will. It appears by the verified 



Estate of Devenney. 277 

statement annexed to the petition and by the testimony of the 
attorney that the will was left in the office of the said John 
B. Carson, 433-434 Parrott building, 825 Market street, San 
Francisco, and remained and was in said office on the eigh- 
teenth day of April, 1906, when the said building and all the 
contents thereof were totally destroyed in the general con- 
flagration occurring at that time, and the will was then and 
there destroyed by fire and cannot be produced. 

Contestant's contention is based mainly upon the claim 
that the instrument propounded is not a copy nor the sub- 
stance of the original which was destroyed by the public 
calamity of April, 1906, in San Francisco, during the life- 
time of decedent, with his knowledge, and that he was not 
at any time committed to nor an inmate of any institution 
for the insane and there was no will left by him at his death. 

The first essential point is, Was this will destroyed with- 
out the knowledge of the testator? 

Section 1339 of the Code of Civil Procedure says: "No will 
shall be proved as a lost or destroyed will, unless the same is 
proved to have been in existence at the time of the death of 
the testator, or is shown to have been fraudulently or by pub- 
lic calamity destroyed in the lifetime of the testator, with- 
out his knowledge, nor unless its provisions are clearly and 
distinctly proved by at least two credible witnesses ; pro- 
vided, however, that if the testator be committed to any state 
hospital for the insane in this state and after such commit- 
ment his last will and testament be destroyed by public calam- 
ity, and the testator is never restored to competency, then 
after the death of the said testator, his said last will may be 
probated as though it were in existence at the time of the 
death of the testator." 

It is incumbent upon the proponent to establish the destruc- 
tion by public calamity, in the lifetime of the testator, with- 
out his knowledge, of the instrument propounded; and, also, 
to prove its provisions by clear and distinct evidence from at 
least two credible witnesses. 

Irrespective of contest, these facts must be established. 
The will cannot be admitted to probate without this proof. 

The fire occurred in April, 1906 ; the decedent died in Feb- 
ruary, 1908, nearly two years thereafter. Apart from proved 



278 Coffey's Pbobate Decisions;, Vol. 3. 

actual knowledge, if any fact could be presumed as within 
the knowledge of everybody in the city, it w^as that the Par- 
rott building with its contents was destroyed by fire on April 
18, 1906. 

No fact could be more notorious or need less evidence as 
coming within the cognizance of all aware of the circum- 
stances of the conflagration. 

The presumption is almost irresistible that decedent knew 
that the place wherein his will was deposited was destroyed 
on that occasion. Mr. Carson received the will from the 
testator immediately upon its execution and placed it in a 
desk in his office, where it was destroyed by the fire. 

There is no escaping the inference that testator knew of 
this destruction, although he may not have thought it neces- 
sary to mention the matter to his attorney ; but he did speak 
of it to the witness Michael Flannery, whose evidence is not 
assailed as to its essential accuracy. Flannery testified very 
positively and directly on this point. 

Mr. Flannery 's testimony was to the effect that he sub- 
scribed the will as a witness on February 21, 1905 ; Devenney 
died February 3, 1908, three years after the execution of the 
instrument; this witness saw him frequently during that 
period ; they were friends for forty years. In the course of a 
conversation between witness and decedent after April 18, 
1906, the latter remarked that it was too bad the will was 
destroyed. Flannery said, "Was it destroyed?" Devenney 
answered "Yes." That was all that was said between them 
in reference to the will; decedent did not say when it was 
destroyed. This talk occurred as the pair were walking up 
Market street from six to ten months after the fire ; no one 
else was present ; Devenney was talking about his property 
and about rebuilding. Mr. Flannery is conceded to be a 
fair witness, although the counsel for proponent thinks he 
acted disingenuously in withholding from him the item of evi- 
dence that he communicated to the opposing counsel, but still 
he had always held Flannery in high esteem. The witness 
might have been more communicative, yet he may not have 
understood the import of the statement made by decedent 
until he was directly interrogated. His reticence may have 
been the result of want of appreciation of the importance of 



Estate of Sharp. 279 

the remark of Devenney, but he does not appear to have will- 
fully suppressed the information and he is not accused of 
falsehood. 

Mr. Flannery's testimony seems direct and dispassionate, 
without partiality, bias or interest in the outcome, and his 
answers were frank and positive. 

It is true that IMr. Dillon, an equally old and intimate 
friend, had not been told by decedent of the destruction of 
the will in explicit terms. Dillon testifies that decedent did 
not say anything about the will being lost, in so many words ; 
but on account of the Parrott building being destroyed, Dil- 
lon did not know whether the will was burned or not. He 
simply did not know of the actual destruction of the paper, 
although he did know, as everybody else did, that the build- 
ing was burned and its contents consumed, and that among 
the contents was the instrument he had witnessed, which was 
consigned by Devenney to the custody of Mr. Carson, all of 
whose office papers and effects were lost by the fire. In view 
of the evidence on this issue, discussion of the second point 
seems unnecessary, and it also seems immaterial to consider 
upon whom the burden of proof is imposed in this particular 
proceeding, as there is a failure of the proof required under 
section 1339 to establish the will: See Estate of Johnson, 2 
Cof. Pro. Dec. 429, Ross' Annotations. 



The Probate of Lost or Destroyed Wills will be found discussed 
in Estate of Johnson, 2 Cof. Pro. Dec. 425, and note. 



Estate of IIONORA SHARP, Deceased. 

[No. 52; decided May 9, 1907. 

Charitable Corporation — Gift to Within Thirty Days of Death. — 

The Kings Daughters Home for Incurables, a corporation without 
capital stock, organized to maintain a home for persons afflicted with 
incurable diseases, is a charitable or benevolent corporation, although 
it receives pay patients in carrying out the objects of its formation 
but not for the profit of its members; and a bequest to it is gov- 
erned by the restrictions imposed by section 1313 of the Civil Code. 
Charity — Bectuest to Within Thirty Days of Death — Revocation of 
Prior Bequest. — Where a testatrix executes a codicil in which she 



280 Coffey ^s Probate Decisions, Vol. 3. 

expressly revokes a bequest in her will of $50,000 to the Kings 
Daughters Home for Incurables, and in place thereof gives $25,000 
to the Kings Daughters Home for Incurables, and $25,000 to the 
Society for the Prevention of Cruelty to Animals, the codicil, not- 
withstanding it otherwise fails because the testatrix dies within thirty 
days after its execution, revokes the gift in the will. 

J. N. Toimg, for the applicant. 

Charles S. Wheeler, for the trustees, R. H. Lloyd and 
Adolph B. Spreckels. 

COFFEY, J. The will of Ilonora Sharp dated fourth day 
of January, 1905, contained the following clause : 

"THIRD. I devise and bequeath to the Kings Daughters 
Home for incurables now located at 317 Francisco Street, 
San Francisco Fifty thousand Dollars." 

On the twenty-first day of January she added a codicil as 
follows : 

"I, Honora Sharp, the testatrix in the foregoing will, of 
date the 4th day of January, A. D. 1905, do now hereby 
change the said will in this respect, viz: In & by the third 
subdivision of said will I devised and bequeathed to the Kings 
Daughters Home for Incurables, Fifty thousand Dollars: I 
now cancel and revoke said devise and bequest, &, in the place 
and stead thereof, I give to the said Kings Daughters Home 
for Incurables, twenty five thousand Dollars. — I give to the 
San Francisco Society for the Prevention of Cruelty to Ani- 
mals, twenty five thousand Dollars. In all other respects I 
affirm and republish the said will & declare it with this codicil 
to be my last Will. 

"Witness my hand and seal at San Francisco, this twenty 
first day of January, A. D. 1905. 

"HONORA SHARP (Seal)" 

She died February 8, 1905. 

The Kings Daughters Home applies for the payment of the 
legacy mentioned in the third clause quoted, alleging that the 
applicant is now and has been continuously for more than 
five years last past, a corporation duly incorporated, organ- 
ized and existing under the laws of the state of California, 
for the purpose of establishing and maintaining an institution 
or institutions in the city and county of San Francisco, or 



Estate of Sharp. 281 

elsewhere in the state of California, as a home for people who 
are suffering with incurable diseases other than contagious 
diseases, and for acquiring and holding all such real and per- 
sonal property as may be necessary to accomplish the objects 
of the corporation and having its principal place of business 
at and within the said city and county of San Francisco, 
where it has been maintaining and is now maintaining such 
a home, and at the date of said will its home was located at 
317 Francisco street, in the city and county of San Francisco, 
California, and this petitioner is and w^as the person to whom 
said legacy was given. Said corporation has no capital stock ; 
that in said home the petitioner has admitted and is still ad- 
mitting many of such sick and diseased persons who have 
been and are there treated for their ailments by skillful phy- 
sicians; that said so-called codicil, at the time of the probate 
of the will, was filed of record herein and is now on file ; and, 
that in and by said codicil the said Honora Sharp attempted 
to so modify her will as to reduce the said $50,000 to $25,000 
and to give to the San Francisco Society for the Prevention 
of Cruelty to Animals $25,000, but within thirty days there- 
after she died. Wherefore the Kings Daughters Home asks 
for an order distributing to it the amount of $50,000. 

To this petition the trustees make answer, averring that 
although said instrument dated the fourth day of January, 
A. D. 1905, contained a paragraph or clause reading in the 
manner alleged, the said clause never became operative, but 
was duly canceled and revoked by a written codicil to said 
will, declaring such revocation, which codicil was duly exe- 
cuted with the same formalities with which a will should be 
executed by said testatrix pursuant to section 1276 of the Civil 
Code of the state of California, which is hereb}^ referred to and 
made a part thereof. The trustees admit that the petitioner 
is now and has been continuously, for more than five j^ears 
last past, a corporation duly incorporated, organized and 
existing under the laws of the state of California, for the 
purpose of establishing and maintaining an institution or 
institutions in the city and county of San Francisco, or else- 
where in the state of California, as a home for people who 
are suffering with incurable diseases other than contagious 
diseases, and for acquiring and holding all such real and per- 



282 Coffey's Probate Decisions, Vol. 3. 

sonal property as may be necessary to accomplish the objects 
of the corporation, and having its principal place of busi- 
ness at and within the said city and county of San Francisco, 
where it has been maintaining and is now maintaining such 
a home, and at the date of said will its home was located at 
No. 317 Francisco street, in the city and county of San Fran- 
cisco, California, and the petitioner, the Kings Daughters 
Home for Incurables, is and was the person to whom said 
legacy was given; that said corporation has no capital stock; 
that in said home that the petitioner has admitted, and still 
is admitting, many of such sick and diseased persons who 
have been and are there treated for their ailments by skillful 
physicians, and in this regard the said trustees aver that the 
said corporation is and was at the time of the execution of 
said will and codicil and at the time of the death of Honora 
Sharp, a charitable or benevolent society or corporation, and 
that the said bequest contained in the said codicil was made 
by the said deceased within thirty days before the death of 
the said testatrix ; that the said testatrix died as hereinbefore 
alleged, on the eighth day of February, 1905. The trustees 
deny that in or by the said so-called codicil the said Honora 
Sharp attempted to or did so modify her said will of Janu- 
ary 4, 1905, as to reduce the said $50,000 so given by said 
will to the Kings Daughters Home for Incurables, but, on 
the contrary, allege and aver that in and by the terms of said 
codicil the said deceased intended to and did on the twenty- 
first day of January, 1905, cancel and revoke said bequest of 
$50,000 to the Kings Daughters Home for Incurables as con- 
tained in the third paragraph of said will, and the said trus- 
tees deny that the said petitioner, the Kings Daughters Home 
for Incurables, is entitled to the sum of $50,000 or any other 
sum or any sum at all out of the assets of the said estate. 

The petitioner contends that notwithstanding the invalidity 
of the bequest in the codicil as to the Society for the Pre- 
vention of Cruelty to Animals, it would be valid as to the 
Kings Daughters Home because that institution is a business 
corporation to whom the thirty daj's' limitation does not 
apply ; but, petitioner asserts, the codicil having been executed 
for the sole purpose of bestowing the benefaction to the 
prevention of cruelty society it fails in its entire purpose and 



Estate of Sharp. 283 

leaves intact the testamentary bequest of $50,000 to petitioner 
unafiPected. Petitioner further argues that if there had been 
no provision in the will for it, and the codicil had been exe- 
cuted for the purpose of giving $25,000 to each of such 
legatees, the Kings Daughters Home would, for the same 
reason, be entitled to the legacy thereunder and the Home 
does claim such bequest under the codicil, if the court shall 
hold it valid, and the other $25,000, under the will; but if 
the court hold the codicil entirely invalid, then the Home 
claims the whole $50,000 under the will. 

According to this ingenious argument, whichever way the 
court decides the Home will secure the full amount of the 
original legacy. 

That the will and codicil show an intent to devote $50,000 
to good purposes is obvious; and that so far as the codicil 
designs to bestow the bounty of the testatrix to a benevolent 
use it is ineffectual, by reason of her death so soon after its 
execution, is conceded ; but the Home insists that it is not a 
charitable or benevolent institution, within the purview of the 
statute, but a business concern, to wit, a hospital in which 
patients are received for a valuable consideration, and it is, 
therefore, qualified and entitled to take under the codicil 
$25,000, and $25,000 under the will. 

The two sections of the Civil Code affecting this contention 
are as follows: 

"1275. A testamentary disposition may be made to any 
person capable by law of taking property so disposed of, ex- 
cept that corporations other than counties, municipal corpo- 
rations, and corporations formed for scientific, literary or 
solely educational or hospital purposes, cannot take under a 
will, unless expressly authorized by statute ; subject, however, 
to the provisions of section thirteen hundred and thirteen." 

"1313. No estate, real or personal, shall be bequeathed or 
devised to any charitable or benevolent society, or corpora- 
tion, or to any person or persons in trust for charitable uses, 
except the same be done by will duly executed at least thirty 
days before the decease of the testator; and if so made, at 
least thirty days prior to such death, such devise or legacy, 
and each of them, shall be valid; provided, that no such 
devises or bequests shall collectively exceed one-third of the 



284 Coffey's Probate Decisions, Vol. 3. 

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 dispositions of property made contrary 
hereto shall be void, and go to the residuary legatee or 
devisee, next of kin or heirs, according to law." 

The claimant's contention, shortly stated, is that the testa- 
trix first gave $50,000 to the Home, then attempted to reduce 
the amouQt to $25,000, by the codicil; that this latter sum 
was a continuation of what was given in the will; and that 
it was not a revocation of the original bequest ; and the claim- 
ant holds that this view follows the trend of the supreme 
court decisions which expressly hold that the intent of the 
testator shall prevail. 

That a will is to be construed according to the intention 
of the testator scarcely needs the citation of authorities. 

Estate of McCauley, 138 Cal. 436, 71 Pac. 512: "Section 
1317 provides that 'A will is to be construed according to the 
intention of the testator. Where his intention cannot have 
effect to its full extent, it must have effect as far as possible. ' 
In construing section 1287 we must keep in view the various 
sections relating to the subject of wills, and must so construe 
that section as to preserve the letter and spirit of all of the 
provisions of the statute so far as possible. The section 
should have such construction, if it is possible in reason to 
do so, as will carry out the known intention of the testator." 

There is no doubt here of the intention of this testatrix. 
It was charitable and benevolent. It can hardly be main- 
tained that she was intent upon fostering business enterprises. 
No more can it be successfully contended that the claimant is 
a business enterprise in the ordinary or in the statutory sense. 
"Business" is usually understood to be an occupation or em- 
ployment engaged in for livelihood hr gain, according to a 
definition by Webster, who also defines a "hospital" (quoted 
by claimant), as (1) "A place for shelter or entertainment"; 
(2) "A building in which the sick, injured or infirm are 
received and treated; a public or private institution founded 
for the reception and cure, or for the refuge, of persons dis- 
eased in body or mind, or disabled, infirm or dependent, and 
in which they are treated either at their own expense, or 



Estate of Sharp. 285 

more often by charity in whole or in part; a tent building 
or other place where the sick or wounded of an army are 
cared for." 

Black in his Law Dictionary defines "business" as "that 
which occupies the time, attention and labor of men for the 
purpose of a livelihood or profit," and "hospital" as "an 
institution for the reception and care of sick, wounded, in- 
firm, or aged persons; generally incorporated," and then of 
the class of corporations called "eleemosynary" or "charita- 
ble." 

Claimant asserts that it is a business corporation and not a 
charitable or benevolent institution. 

It must accept either horn of this dilemma: It is either a 
business or a benevolent corporation. If business, the be- 
quest is valid as to whole will ; if benevolent, void as to « 
codicil, valid as to prior will. That is the position of claim- 
ant. 

The authorities relied upon by claimant do not sustain its 
contention that it is a business corporation, for, according to 
its ow^n statement, it has no capital stock and enjoys no gain 
pecuniarily from its pursuit ; and it solicits suffrage from the 
charitably disposed for its maintenance. It is true it accepts 
pay patients, but its primary purpose is to carry on an or- 
ganization helpful to mankind, and not to make money out 
of their misery or misfortune. Pecuniary profit was not its 
object. It was the humane end and aim of their existence 
that testatrix evidently had in view, when she made her be- 
quest to the two societies mentioned in the codicil, and she put 
them both on the same plane, in the same category. Except 
so far as any and every institution, charitable or benevolent, 
or commercial, must have a business organization and a 
methodical conduct of its affairs, in order to attain high effi- 
ciency, neither of the societies named-, although each incor- 
porated, was in the sense a "business corporation," but was 
designed to accomplish a humane, charitable, and benevolent 
purpose. 

Page on Wills says that a hospital incorporated without any 
capital stock, and not for any financial benefit of its members, 
is a charity in this sense. The evidence shows that this claim- 
ant is and has been such an institution, and the conclusion is, 



286 Coffey's Probate Decisions, Vol, 3. 

that the testatrix had that fact in mind when she made her 
will. 

But the claimant contends that, if this finding be correct, 
the Home is entitled to take under the will of January 4, 
1905, because section 1313 of the Civil Code recognizes its 
right to such legacy, even confers the right, as the supreme 
court has decided that it is expressly declared that a bequest 
made to any charitable or benevolent society, or corporation, 
in trust for charitable uses, if made at least thirty days prior 
to the death of the testator shall be valid, and under section 
1275 of the Civil Code claimant says the Home is entitled 
as a corporation for hospital purposes. 

The court finds, therefore, that the claimant is and was at 
the time of the execution of the will and codicil, and at the 
time of the death of the decedent, a charitable or benevolent 
society, or corporation, and that the said bequest contained in 
the codicil was made within thirty days before the death of 
the testatrix, and, hence, is void. 

In this alternative contention, the whole argument of claim- 
ant is based on the assumption that the invalidity of the be- 
quests in the codicil restored or revives the prior testamentary 
disposition, since the sole pvirpose of the codicil was to take 
$25,000 from the Home and to bestow it upon the animals 
society, thus modifying and dividing the original legacy, and 
that purpose failed, the entire codicil fails. The manifest 
intention of the testator is to be carried out, and if not to 
its full extent, then so far as possible. 

Certainly it is the desire, as it should be the duty, of this 
court to carrj^ out this design of the decedent, if it can legally 
be accomplished ; but it must be done according to legal rules, 
no matter how deserving the object of testatrix's benevolent 
intention ; that is to say, if her intention is defeated by the 
law, as determined by the principles of construction and in- 
terpreted by authority, the court must decide against the 
claimant. 

Claimant insists, however, that the authorities are in its 
favor on the proposition that the codiciliary bequest being 
invalid, by reason of the thirty da^'s' statutory inhibition, al- 
though the instrument was executed in strict accordance with 



Estate of Sharp. 287 

all the forms imposed by statute, nevertheless, the testamen 
tary provision prevails. 

To sustain this view, counsel cites Page on "Wills, a work 
which he properly places in the highest rank as a text-book, 
and also Underbill, a treatise of merit, to show that the codicil 
in the case at bar does not revoke the provision of the will 
giving to the Home the specified legacy; but it will appear 
from an examination of the cases and citations from the 
volumes named that they depended mainly upon defective 
execution, and this is not such a case. In this instance there 
was nothing wanting in the legal requirements of the execu- 
tion of the codicil (section 1276, Civil Code), but the legacy 
itself failed for lack of capacity in the legatee to take under 
section 1313, Civil Code. Two of counsel's quotations are here 
inserted to illustrate this point. 1 Underbill on "Wills, page 
340, paragraph 250, saj's : "If the writing containing a 
clause expressly revoking former wills is improperly executed 
as a will, either because improperly attested or subscribed, 
or because the testator is lacking in testamentary capacity 
or otherwise, it fails altogether and in toto." 

Page on "Wills, 263, paragraph 293, says: "The assump- 
tion is made that the revocation clause of the codicil is in- 
serted in order to permit of the dispositive provisions therein ; 
and if the codicil is not so executed as to give effect to these 
provisions, it is treated as entirely void, including the clause 
of revocation." 

Counsel asks the court to observe that Underbill refers to 
instances where there is a clause "expressly revoking"; but 
it would appear that here there is an express revocation, and 
the law has been laid down that in such case "an express 
revocatory clause will operate as such notwithstanding certain 
devises or legacies in the subsequent will failed to take effect 
on account of the incapacity of the devisee or legatee to take 
or on account of the illegality of the bequest, or on account 
of indefiniteness. ' ' 

It is contended that the intention of the testatrix was not 
to absolutely revoke the testamentary bequest, but simply to 
modify or reduce the amount ; but while it ma.y be true that 
she intended to reduce the original amount, yet she expressly 



288 Coffey's Probate Decisions, Vol. 3. 

canceled and revoked the prior disposition, and in place and 
stead thereof gave a less sum. 

This was, in effect, a new legacy, and as the legatee can 
claim only by virtue of the codicil executed within the statu- 
tory period before the death of the testatrix, the intention 
of the testatrix must succumb to the emphatic declarations 
of the statute, which positively declares such a bequest void. 

The codicil, therefore, can have no other effect than to re- 
voke the prior legacy and cause the substituted bequest to 
fall into the residuary estate. 

It follows that the petition should be and it is denied. 



Estate of DANIEL J. BERGIN, Deceased. 

[No. 13,113; decided April 10, 1893.] 

Foreign Will. — The Public Administrator is not Entitled to letters 
of administration with the will annexed, as against a resident devisee 
in a foreign will who files an authenticated copy thereof and of its 
probate in a foreign jurisdiction, with a petition for letters. 

Foreign Will— Construction of Code.— Sections 1322-1324 of the 
Code of Civil Procedure, dealing as they do exclusively with the sub- 
ject of foreign wills, furnish the exclusive rule as to their subject 
matter. 

T. I. Bergin, applicant, in pro. per. 

J. D. Sullivan and Herbert Choynski, for A. C. Freese, 
public administrator. 

COFFEY, J. Daniel J. Bergin, deceased, died in March, 
1892, in the city of Dublin, Ireland, leaving a last will, which 
was duly probated in the proper court of that county. He 
left some personal property in the city and county of San 
Francisco, California. By said will certain persons were ap- 
pointed executors, and the proponent herein, Thomas I. Ber- 
gin, who is a citizen and resident of San Francisco, in the 
state of California, was named as a devisee. The said propo- 
nent produced and filed with this superior court an authen- 
ticated copy of said will and probate, together with a petition 



Estate of Bergin. 289 

that the same be admitted to probate here, and that letters of 
administration with the will annexed be issued to him. 
'Afterward A. C. Freese, public administrator of this city and 
county, also filed a petition for the probate of said will and 
for the issue of letters of administration to him with the will 
annexed. 

The question of the right of the public administrator to 
administer in this case depends upon the various provisions 
of the Code of Civil Procedure upon the subject. 

Under section 1726 he must take charge of the estates of 
persons dying within his county, as follows: 1. Of the es- 
tates of decedents for which no administrators are appointed, 
and. which, in consequence thereof, are being wasted, un- 
cared for or lost ; 2. Of the estates of decedents who have no 
known heirs; 3. Of the estates ordered into his hands bj^ the 
court; and 4. Of the estates upon which letters of adminis- 
tration have been issued to him by the court. 

In each of these four instances the deceased must have died 
within his county, and the question of testacy or intestacy is 
not a determinative element involving the question of his 
right to administer. The scope of his duties under this sec- 
tion is more in the nature of caring for derelict estates. 

Section 1727 is not here material. 

Section 1728 indicates the nature of his duties to be as 
above stated. The remaining sections, 1729 to 1743, describ- 
ing the duties of the public administrator, have no special 
bearing on the question. Merely in virtue of his office he is 
not entitled to administer, but his office, in the prescribed 
cases, entitles him to letters of administration, which continue 
in force even after expiration of his term of office : Rogers v. 
Hoberlein, 11 Cal. 128; Estate of Aveline, 53 Cal. 2G0. 

Recurring, therefore, to other provisions touching adminis- 
tration of the estates of deceased persons, we find, in section 
1294, the jurisdiction where wills must be proved and letters 
testamentary or of administration granted. 

Sections 1298 to 1309 prescribe the procedure of admission 
to probate of original wills. 

Sections 1312 to 1318 relate to contest of wills before pro- 
bate. 

Prob. Dec, Vol. Ill —19 



290 Coffey's Probate Decisions, Vol, 3. 

Sections 1327 to 1333 prescribe procedure for contesting 
wills after probate. 

Sections 1338 to 1341 provide for the probate of lost or 
destroyed wills. 

Sections 1344 to 1364 provide for probate of nuncupative 
wills. 

But there may be wills not made or originally proved in 
California, and sections 1322 to 1324 provide in regard to 
them, and of them we ■wall hereafter speak more at large. 

Section 1348 relates to executors or administrators. 

But the decedent may have left no will, and sections 1371 
to 1379 provide for administration upon the estates of such 
persons. 

While section 1365 prescribes the order in which persons 
shall be entitled to administer in such cases, it, among other 
things, provides that "administration of the estate of a per- 
son d^'ing intestate must be granted to some one or more of 
the persons hereinafter mentioned, .... 8th. Public admin- 
istrator. ' ' 

To this source must the public administrator appeal for 
authority to entitle him to administer. As seen from the 
language of the statute itself, it only applies to the estate of 
a person d>4ng intestate. Where there is a will, although the 
will omit to name an executor, the public administrator, 
therefore, is not entitled to administer. 

The provisions of 1365 are inapplicable: Estate of Barton, 
52 Cal. 540; Estate of Murphy, Myr. Rep. 185; Estate of 
Nunan, Myr. Rep. 238. 

Such was the rule until changed by the amendment of 
section 1350 in 1878, which provides that, "If the sole execu- 
tor, or all the executors, are incompetent, or renounce or fail 
to apply for letters, or to appear and qualify, letters of ad- 
ministration with the will annexed must be issued as desig- 
nated and provided for the grant of letters in cases of intes- 
tacy." 

The only cases touching the right of the public administra- 
tor that we find are: Estate of Morgan, 53 Cal. 243, where 
the court held that he was entitled in preference to the 
nominee of a married woman, who was, under the law as it 
then stood, incapable of acting as administrator (245) ; the 



Estate of Bergin. 291 

Estate of Cotter, 54 Cal. 215, where the court held that the 
nominee of a surviving widow was entitled to preference 
over the public administrator. 

The decision in this case has been affirmed in the Estate of 
Stevenson, 72 Cal. 164, 13 Pac. 404; Estate of Dorris, 93 
Cal. 612, 29 Pac. 244. 

In the Estate of Kelly, 57 Cal. 81, it was held that the 
public administrator was entitled to preference over the 
nominee of a married woman, daughter of the intestate. 

In the Estate of Beech, 63 Cal. 458, the court held that he 
was entitled to preference over the nominee of a nonresident. 
Of course, in that case the nonresident executor was not 
entitled to administer. While the decedent in that case died 
testate, no compliance was shown with the provisions of sec- 
tions 1323 and 1324, and, as the nonresident executor was not 
himself qualified to act, he not appearing to claim letters of 
administration, the court held that his nominee had no better 
right, and therefore the public administrator had the superior 
right. 

In the Estate of Hyde, 64 Cal. 228, 30 Pac. 804, the same 
point was similarly decided. None of these decisions, there- 
■ fore, touches the question before the court. 

As already observed, the code prescribes the procedure for 
the various kinds of original wills, and provides for cases of 
intestacy. It also provides for the case of foreign wills, 
which is the case at bar. 

The right to administer is, of course, purely of statutory 
origin, and, in determining who is entitled to administer, the 
intention of the legislature, as expressed in the language em- 
ployed in the statute, is the controlling point. 

Sections 1322 to 1324 contain express provision in relation 
to foreign wills and who shall administer under them. 

We must, in considering these sections, bear in mind the 
rules prescribed in the Political Code: 

Section 4481: "If the provisions of any title conflict with 
or contravene the provisions of another title, the provisions 
of each title must prevail as to all matters, and questions aris- 
ing out of the subject matter of such title." 

Section 4482: "If the provisions of any chapter conflict 
with or contravene the provisions of another chapter of the 



292 Coffey's Probate Decisions, Vol. 3. 

same title, the provisions of each chapter must prevail as to 
all matters and questions arising out of the subject matter of 
such chapter." 

Section 4483: "If the provisions of any article conflict 
with or contravene the provisions of another article of the 
same chapter, the provisions of each article must prevail as 
to all matters and questions arising out of the subject mat- 
ter of such article." 

Bearing these rules of construction in mind, let us examine 
sections 1322 to 1324 of the Code of Civil Procedure. 

Dealing, as these sections do, exclusively v.ith the subject of 
foreign wills, they furnish the exclusive rule as to their sub- 
ject matter. 

Section 1322 defines the class of wills that may be allowed 
and recorded in the superior court of any county in which 
the testator shall have left any estate. It ordains two things, 
viz. : 1. The character of foreign wills that may be admitted 
to probate ; 2. The court in which they may be thus admitted. 

Section 1323 provides that "when a copy of the will and 
the probate thereof, duly authenticated, shall be produced by 
the executor, or by any other person interested in the will, 
with a petition for letters, the same must be filed, and the 
court or judge must appoint a time for the hearing, notice 
whereof must be given as hereinbefore provided, for an orig- 
inal petition for the probate of a will." 

In this section occur: 1. Authenticated copy of the will; 
2. Production of same in the court; 3. Production of the 
same by the executor; 4. Production of the same by any other 
person interested in the will, with a petition for letters. 

When thus produced, the court must appoint a time for 
hearing, of which notice shall be given. 

Here, therefore, are two classes of persons authorized to 
produce an authenticated copy of a will, viz. : The executor 
named in the wiU, and any other person interested in the will. 
These persons are thus as definitely ascertained as if they had 
been enumerated, as is done in section 1365. But, as the 
article was dealing with an entirely independent subject, viz., 
foreign wills, it defines the class of those wills that may be 
admitted to probate, and the person upon whose application 



Estate of Bergin. 293 

they may be thus admitted, thus giving such persons the right 
to administer thereunder. 

In the Estate of Sanborn, 98 Cal. 103, 32 Pac. 865, the 
supreme court had occasion to consider who was "a person 
interested." 

Speaking upon the point the court say: "The probate of 
a will can be contested only upon 'written grounds of opposi- 
tion' filed by a 'person interested' — that is, interested in the 
estate, and not in the mere fees of an administration thereof : 
Code Civ. Proc, sees. 1307-1312. A public administrator has 
no interest in an estate, or in the probate of a will; that is 
a matter which concerns only those to whom the estate would 
otherwise go." 

Under section 1324, if on the hearing it appears that the 
will has been approved and allowed in the foreign country, 
and that it was executed according to the law of the place 
in which it 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, and 
letters testamentary or of administration issued thereon. 

Of course, letters testamentary can only properly issue to 
the executor named in the will : Estate of Wood, 36 Cal. 82. 
Therefore, regardless of all other questions and considera- 
tions, the executor named in the will is entitled to letters 
testamentary. Upon the same principle, an applicant inter- 
ested in the will is equally entitled to letters of administra- 
tion. The right of the interested party stands upon precisely 
the same plane as the right of the executor, as there is no 
more authority for denial of the right in the one case than in 
the other. 

In this case the applicant is a person interested in the will. 
The will was properly executed, was properly authenticated, 
and the only question is as to who is entitled to letters of 
administration — the public administrator or the petitioner. 

The public administrator has no right, and the petitioner is 
entitled to letters. He comes within the exact letter of the 
statute. The public administrator as such has no right. The 
decedent did not die in the city and county of San Fran- 
ciscoj he did not die intestate; the will in question is a 



294 Coffey's Probate Decisions, Vol. 3. 

foreign will, duly approved, allowed and authenticated, and 
under no provision of the Code of Civil Procedure has the 
public administrator the better right to administer. 

Petition of public administrator denied. 

Petition of T. I. Bergin granted. 



The Principal Case was Affirmed by the Supreme Court in 100 Cal. 
376, 34 Pac, 867. 



Estate of PHILETUS FINCH, Deceased. 

[No. 12,183; decided December 29, 1893.] 

Claims Against Decedent — Whether must be Presented for Allow- ' 
ance. — Only such claims as were incurred by the decedent in his 
lifetime, or for which he might be held liable, need be presented 
to the administrator for allowance. 

Fmieral Expenses — Whether Claim for must be Presented. — The 

claim of an undertaker for funeral expenses need not be presented 
for allowance against the estate of the decedent. 

Funeral Expenses — Time for Payment. — The funeral expenses of a 
decedent must be paid by the administrator as soon as he has suf- 
ficient funds in his hands. 

Claims Against Estate — Payment by Foreign Administrator. — 
Where an undertaker takes charge of the funeral of a decedent at 
the request of a person subsequently appointed administrator, and 
thereafter presents his claim to the administrator, who transmits it 
to an administrator in a sister state and receives from him the 
money to pay the claim, the court wiU order the administrator to 
make the payment. 

Bull & Cleary, for the petitioner. 

Roger Johnson, for the administrator. 

COFFEY, J. Halsted & Company, undertakers, at the 
request of Mark Parish, who engaged them so to do, buried 
deceased, paying all the funeral expenses ; subsequently Mark 
Parish was appointed the administrator of the estate of 
Philetus Finch, deceased, and duly qualified and entered 
upon the discharge of his duties as such administrator ; at the 



Estate of Finch. 295 

request of said administrator Halsted & Company made out 
their claim for said funeral expenses against the decedent's 
estate and delivered the same to said Parish, who forwarded 
the same to Michigan and received the money to pay the 
same. The claim of Halsted & Company never having been 
allowed and approved by the judge of this court, are Halsted 
& Company now entitled to an order directing Mark Parish, 
administrator of said estate, to pay the said claim? 

Section 1490, Code of Civil Procedure, provides that "Every 
executor or administrator must, immediately after his ap- 
pointment, cause to be published in some newspaper of the 
county .... a notice to the creditors of the decedent, re- 
quiring all persons having claims against him to exhibit 
them, with the necessary vouchers, to the executor or admin- 
istrator " 

Section 1643, Code of Civil Procedure, provides that "The 
debts of the estate .... must be paid in the following 
order : 

"1. Funeral expenses. 

"2. The expenses of the last sickness. 

"3. Debts having preference by the laws of the United 
States. 

"4. Judgments rendered against the decedent in his life- 
time and mortgages in the order of their date. 

"5. All other demands against the estate." 

Section 1646, Code of Civil Procedure, provides that "The 
executor or administrator, as soon as he has sufficient funds 

in his hands, must pay the funeral expenses He may 

retain in his hands the necessary expenses of administration, , 
but he is not obliged to pay any other debt or any legacy \ 
until, as prescribed in this article, the payment has been 
ordered by the court." 

Section 1467, Code of Civil Procedure, provides that "Any 
allowance made by the court or judge, in accordance with 
the provisions of this article, must be paid in preference to 
all other charges, except funeral charges and expenses of 
administration. ' ' 

Petitioner contends: 

1. The funeral expenses are not a debt of decedent which 
the law requires shall be presented in a claim verified by 



296 Coffey's Probate Decisions, Vol. 3. 

claimant and allowed and approved by the administrator and 
the court and filed with the clerk. 

2. The funeral expenses are a portion of the expenses of 
administration to be first paid. 

3. Admitting that the law requires the claimant to present 
his claim for funeral expenses in a claim verified, and that 
the same shall be allowed and approved by the administrator 
and .judge and filed in the clerk's office, this debt of petitioner 
having been incurred by the administrator of this estate, and 
the petitioner at the request of said administrator having 
presented his claim against the estate of decedent in a sister 
state and delivered the same to the administrator in this 
state, who has by virtue thereof collected the amount from 
the estate in a sister state, petitioner is still entitled to an 
order of payment by the administrator in this state. 

1. The funeral expenses are not a debt of decedent which 
the law requires shall be presented in a claim verified by 
claimant and allowed and approved by the administrator and 
the court and filed with the clerk. 

The word "claim" is certainly a very broad term, when 
used in certain connections and in reference to certain mat- 
ters. Lord Coke says: "The word 'demand' is the largest 
word known to the law, save, only, 'claim'; and a release of 
all demands discharges all right of action." Chief Justice 
Nelson says: "The word 'claim' is of much broader import 
than the Avord 'debt,' and embraces rights of action belong- 
ing to the debtor, beyond those which may appropriately be 
called debts": 2 Hill, 223. 

But, however broad may be the general meaning of this 
term, we must look to the statute to ascertain the sense in 
which it is there used. 

The statute to "Regulate the Settlement of the Estates of 
Deceased Persons" requires the executor or administrator to 
give "notice to creditors of the decedent, requiring all per- 
sons having claims against him, deceased, to exhibit them," 
etc. : Code Civ. Proc, sec. 1490. 

In Fallon v. Butler, 21 Cal. 32, 81 Am. Dec. 140, Mr. Chief 
Justice Field, in delivering the opinion of the court, said: 
"Whatever signification, then, may be attached to the term 
'claims,' standing by itself, it is evident that in the probate 



Estate op Fixch. 297 

act it only has reference to sucli debts or demands against 
the decedent as might have been enforced against him in his 
lifetime by personal actions for the recovery of money, and 
upon which only a money judgment could have been ren- 
dered": See, also, Estate of McCausland, 52 Cal. 577. 

In Hancock v. Whittemore, 50 Cal. 523, the supreme court 
says: 

"An assassment for the improvem^ent of a street is a munic- 
ipal tax, and the property owner is brought into relations 
with the proceedings which are initiated by the resolution of 
intention, only when the tax is levied; that is to say, when 
the assessment is made and issued. 

"The assessment was issued after the death of H. M. 
Whittemore. The tax thus assessed did not constitute a 
claim against the estate of H. M. Whittemore which was re- 
quired to be presented for allowance: People v. Olvera, 43 
Cal. 492." 

From the sections of the Code of Civil Procedure and the 
decisions of the supreme court above cited it necessarily fol- 
lows : That only such claims as were incurred by the decedent 
in his lifetime, or for which he might be liable, are to be pre- 
sented, allowed, approved and filed ; no one will for a moment 
contend that decedent incurred the funeral expenses in this 
case, or that any claim ever existed against decedent there- 
for; hence they are not a claim against deceased, a claim 
which is necessary to be presented. 

2. The funeral expenses are a portion of the expenses of 
administration to be first paid. 

By referring to sections 1643 and 1467, Code of Civil Pro- 
cedure, it will be seen that the debts of the estate are to be 
paid by paying the funeral expenses first. 

By section 1646 of the Code of Civil Procedure, the admin- 
istrator is ordered to pay the funeral expenses as soon as 
he has sufficient funds in his hands. 

These sections of the code are in their intent sanitary; they 
are intended to provide for the decent burial of the dead 
without any question as to the payment of the necessary ex- 
penses incurred therein, and without compelling the parties 
who furnished these expenses to satisfy themselves first if the 



298 Coffey's Probate Decisions, Vol. 3. 

estate of decedent is insolvent. They are the first expenses 
of the estate to be paid. 

Section 1646, Code of Civil Procedure, is mandatory upon 
the administrator to pay the same as soon as he shall have 
received enough money so to do. In this case it is admitted 
that the administrator has received the money from the east 
to pay these expenses. 

3. Admitting that the law requires the claimant to present 
his claim for funeral expenses in a claim verified, and that 
the same shall be allowed and approved by the administrator 
and judge and filed in the clerk's office, this debt of petitioner 
having been incurred by the administrator of this estate, and 
the petitioner at the request of said administrator having pre- 
sented his claim against the estate of decedent in a sister state 
and delivered the same to the administrator in this state, who 
has by virtue thereof collected the amount from the estate in 
a sister state, petitioner is still entitled to an order of pay- 
ment by the administrator in this state. 

These facts are to be viewed simply in the light of an 
official of this court receiving money in trust to pay a certain 
claim, and in declining to do so, or to account for the money 
he has received. 

He certainly received it as administrator of the estate of 
decedent and by reason of his appointment as such. 

What right has he to retain it, or fail to account for it? 

In the Estate of Ortiz, 86 Cal. 306, 21 Am. St. Eep. 44, 24 
Pac. 1034, it was held by the supreme court "to be the duty 
of a domiciliary executor to gather in and account for the 
foreign assets of his testator to the extent of his conscious 
ability to do so, and the court of the domicile may compel 
him to account for willful neglect to perform such duty." 

The conclusion of the court is that petitioner is entitled to 
an order directing Mark Parish, administrator of the estate 
of Philetus Finch, deceased, to pay to Ilalsted & Company 
the sum of $145, Muth interest thereon at seven per oent per 
annum from March 1, 1893, until paid. 

Prayer of petition granted. 



That a Claim for Funeral Expenses need not be presented to the 
administrator of the estate for allowance, see Potter v, Lewin, 123 
Cal. 146, 55 Pac. 783. 



Estate of Grisel. 299 



Estate of GEORGE GEISEL, Deceased. 

[No. 13,821; decided February 19, 1894.] 

Homestead. — Premises Consisting of Detached Tracts will not be 
set aside as a probate homestead, but only the one tract on which a 
dwelling-house is situated, notwithstanding the value of the tracts 
in the aggregate does not exceed $5,000. 

George Grisel died intestate on August 5, 1893, and on 
August 28, 1893, letters of administration upon his estate 
were issued to Louis Grisel, his widow. 

The inventory and appraisement was filed on October 17, 
1893. In the inventory three parcels of land were separately 
described and appraised. Lots 1, 2, 3 and 6, and the north 
half of lot 4 in block 26, as laid down on a certain map of a 
tract in Oakland township, Alameda county, were appraised t 
at $1,500, and the improvements thereon at $500. Lots 1 and 
4, in block 27 of the same tract, were appraised at $1,000. 
Lot 4, in block 1 of another tract in Oakland township, was 
appraised at $2,000. There were no improvements on either 
the second or third parcel. 

On November 10, 1893, the widow made application to have 
the three parcels set apart to her as a homestead. In her 
petition she alleged that there was a dwelling-house on the 
lots in block 26, and that the other lots are situate in the 
immediate vicinity thereof. 

Selden S. and Geo. T. Wright, for the petitioner. 

Rothchild & Ach, for Eugene and Adelaide Grisel, parents 
of decedent. 

COFFEY, J. Referring to the application of Louise 
Grisel, widow, there being no minor children having any in- 
terest in the property, and no homestead having been selected 
during the lifetime of the spouses, and further referring to 
the plat of said property attached to petitioner's brief herein, 
counsel for the mother and father of said deceased, who are 
entitled to one-half of said estate upon its distribution, con- 
cede that as to lots one (1), two (2), three (3) and six (6), 
and the one-half of lot four (4), in block No. twenty-six (26), 



300 Coffey's Probate Decisions, A^ol. 3. 

as delineated on said map, the petitioner is entitled to these 
particular lots being set apart. It is, hov/ever, contended that 
petitioner is not entitled to lots one (1) and four (4), la 
block 27, designated as "B" on said plat, and lot No. 4 in 
block .1, as to which petitioner also makes claim, and that 
the same should remain in the administratrix subject to dis- 
tribution. 

Counsel for petitioner, in their brief, refer to and seem 
to depend almost entirely upon the decision in Gregg v. Bost- 
,wick, 33 Cal. 227, 91 Am. Dec. 637. 

The question of a probate hom.estead was not in issue in 
that case, nor were those portions of the opinion quoted by 
counsel necessary for a determination of the matters under 
discussion in that case. The court, in Gregg v. Bostwick, 33 
Cal. 227, 91 Am. Dec. 637, declined to set apart any of the 
property claimed as a homestead, excepting those portions 
which had been specifically claimed as such in the declaration, 
and upon which the claimants had resided, and that portion 
of the decision quoted would seem to be obiter dicta. Neither 
of the other cases referred to by counsel has any application 
to the question before the court upon this petition. 

The question of value, as we understand it, cuts no figure 
in the setting apart of a probate homestead, the object being 
to set apart a home, as was decided in the Estate of Walkerly, 
81 Cal. 579, 22 Pac. 888, in consonance with the position and 
condition of those entitled thereto and the value of the estate 
— due regard being always had to the practicability of the 
property for the use claimed. It might as well be contended 
that, because they could be used conveniently, the claimant 
of a probate or other homestead, under the laws of California, 
might claim a lot and residence situate on Pacific and Frank- 
lin streets, and at the same time, as pasturage for a cow 
might be required, ask that a lot situate at Jackson and Frank- 
lin, not in any way connected with the home, should be set 
apart as a portion of the same homestead. 

A broad avenue, set apart and dedicated as a public street, 
in the incorporated town of Oakland, separates the blocks 
designated respectively as "A" and "B, " and there is a 
distance of four or five blocks from these lots to the third 
parcel of land claimed by the petitioner. 



Estate op Donahue. 301 

The position of these lots as effectually prevents their being 
used as a homestead as if the same were situated a portion on 
the north side and a portion on the south side of Bush, or any 
other street in San Francisco. 

The motion of petitioner, with respect to the setting apart 
of lots Nos. one (1) and four (4), in block 27, and lot No. 
four (4) in block No. one (1), is denied. 



As to Wliether Separate or Detached Parcels of land may be 
selected as a homestead, see the recent case of Brixius v. Eeimringer, 
101 Minn, 347, 118 Am. St. Eep. 629, and note, 112 N. W. 273. 



Estate of CORNELIUS J. DONAHUE, Deceased. 

[No. 11,598; decided December 27, 1893.] 

Inventory — Money Claimed Adversely by Administratrix. — The fact 
that an administratrix herself makes an adverse claim to moneys 
deposited in her name and in the name of her decedent, and pay- 
able to either, does not lessen her duty to include such deposits in her 
inventory. 

F. W. Van Reynegom, for the minor heirs. 
Thomas F. Barry, for the administratrix. 

COFFEY, J. On September 26, 1891, Cornelius J. Dona- 
hue died intestate at the city and county of San Francisco, 
leaving him surviving as heirs Annie Donahue, his widow; 
Maggie Donahue, aged thirteen years, his daughter by a 
former wife; and Agnes Donahue, aged two years, the child 
of the deceased and his said widow. 

On December 1, 1891, letters of administration were duly 
issued to said Annie Donahue, and on February 16, 1893, the 
administratrix filed the inventory and appraisement of said 
estate. 

At the time of his death said intestate had some $4,000 on 
deposit with the Hibernia Savings and Loan Society, and 
$900 with the German Savings and Loan Society, two savings 
banks of San Francisco. Each of said deposits was in aa 



302 Coffey's Probate Decisions, Vol. 3. 

account entitled "Cornelius J. Donahue or Annie Donahue,'* 
and represented the earnings and savings of the deceased and 
his surviving wife subsequent to their marriage. The bank- 
books representing these deposits were in the wife's posses- 
sion at the time the intestate died, but no written transfer of 
his interest therein was shown to have been by him made. 

The question before the court is whether the deposits men- 
tioned are a portion of the estate and subject to administra- 
tion thereof as community property, or whether they belong 
to the surviving wife as her separate estate. This question 
comes up at the hearing of an order for the administratrix 
to show cause to the court why the said deposits should not 
be included in the inventory of the estate. Upon the hearing 
the administratrix testified that the deceased in his lifetime 
had told her that it was his intention that in the event of his 
death she should have the money in question without the 
trouble of getting it through the probate court, and that it 
was deposited in the names of husband or wife for her bene- 
fit, and to be her separate estate on his death. 

The question here involved of the duty of an administra- 
trix to make a true inventory of all estate coming to her pos- 
session or knowledge has been before passed upon by this 
court in Estate of Partridge, 1 Cof. Pro. Dec. 208. In the 
case here cited it was held that "an administrator cannot 
omit to inventory property said to belong to his intestate, 
which is the subject of an adverse claim, on the pretense that 
he wants to stand neutral between the estate and the adverse 
claimant, leaving the merits of the controversy to the court's 
determination. The administrator cannot assume an attitude 
of neutrality; the statute points out his duty; and for the 
court to pass upon the merits of the adverse claim would be 
to assume a jurisdiction w^hich in probate it cannot exercise." 
The fact that in the case at bar the adverse claim is made by 
the administratrix in her personal capacity does not lessen 
her duty as administratrix to include in her inventory of the 
estate the property in question, to which she makes a claim 
adverse to the estate. 

The motion in behalf of the minor heir is granted, and it 
is ordered that the administratrix include the moneys in con- 
troversy in this proceeding in the inventory of the estate, by 



Estate of Welch. 303 

filing a supplementary inventory thereof in accordance with 
the provisions of section 1-151 of the Code of Civil Procedure. 



If Any Portion of a Decedent's Estate is the subject of an adverse 
claim, it is prudent on the part of the administrator to add a memo- 
randum to the inventory, stating the asserted claim. But the prop- 
erty must be inventoried; the administrator cannot stand neutral 
because the decedent's title is disputed: Estate of Partridge, 1 Cof. 
Pro. Dec. 208. 



Estate of HENRY WELCH, Deceased. 

[No. 6,961; decided February 16, 1894.] 

Probate Order — Conclusiveness and Effect. — An order by the superior 
court in probate is as efficacious and binding as to the matter therein 
determined and the rights thereby secured as any judgment can be. 

Family Allowance. — An Order Making a Pamily Allowance is neces- 
sarily an adjudication of the existence of every fact requisite to 
support the order, whether the fact is expressly found or not. 

Family Allowance. — An Order for a Family Allowance creates a 
vested right to all sums that have become due thereunder. 

Family Allowance — Conclusiveness of Order. — All questions as to the 
right of a widow to an allowance, and as to the amount properly to 
be allowed her, are conclusively determined by the order of the court, 
if no appeal is taken. 

Orders in Probate — How may be Vacated. — Orders and judgments in 
probate can be vacated on motion, only for the reasons and within 
the time provided by the code. After the lapse of that time the 
remedy is by independent suit. 

Henry Welch died on January 14, 1888. Letters of admin- 
istration upon his estate were issued to John Purcell on Janu- 
ary 31, 1888. 

On August 17, 1888, Honor Welch, widow of the decedent, 
filed her petition wherein she prayed for an allowance of 
$200 per month for her maintenance during the progress of 
the settlement of the estate. On August 28, 1888, the court 
made an order allowing the widow $125 per month from the 
date of her husband's death. This allowance was paid by 
the administrator up to March 14, 1889, and on March 23, 
1889, his powers were suspended. On April 8, 1890, J. D. 



304 Coffey's Probate Decisions, Vol. 3. 

Rug-gles was appointed special administrator. On December 
22, 1893, the widow made application for an order directing 
the special administrator to pay to her $7,125 alleged to be 
due to her as family allowance from ]\Iarch 14, 1889, to 
December 14, 1893. The special administrator filed an an- 
swer and resisted the application on various grounds. 

Garret W. McEnerney, for the applicant. 

Chas. A. Sumner and M. T. Moses, for the special adminis- 
trator. 

COFFEY, J. On August 28, 1888, subsequent to the filing 
of the inventory, the court, after notice of the hearing thereof 
given by posting for ten days, heard the application of Honor 
Welch, the surviving wife, for the payment to her of $200 
per month as familj^ allowance until the settlement of the 
estate. The petition was granted, but the amount was fixed 
at $125 per month. The family allowance has not been paid 
since March 14, 1889. This is a proceeding to compel its 
payment. The questions involved all turn upon the force and 
effect of the order. 

An order made by the court sitting in probate, within the 
scope of its jurisdiction, is as forceful, efficacious and bind- 
ing as to the matter therein and thereby determined, and as 
to the rights thereby granted or secured, as any judgment 
could be: Code Civ. Proc, sec. 1908, subd. 1; Howell v. Budd, 
91 Cal. 342, 27 Pac. 747 ; Garwood v. Garwood, 29 Cal. 520. 

An order of the court sitting in probate, making an allow- 
ance authorized by statute, is necessarily an adjudication of 
the existence of every fact requisite to support the order, 
whether the fact be expressly found or not. 

An order of family allowance creates a vested right to all 
sums which have become due thereunder : Pettee v. Wilmarth, 
5 Allen, 144 ; Estate of Lux, 100 Cal. 593, 35 Pac. 341. 

All questions as to the right of the widow to an allowance, 
and as to the amount properly to be allowed to her, are conclu- 
sively determined by the order, no appeal having been taken : 
Code Civ. Proc, sec. 1908, subd. 1 ; Irwin v. Scriber, 18 Cal. 



Estate of Welch. 305 

499 ; Brumagim v. Ambrose, 48 Cal. 366 ; Lucas v. Todd, 28 
Cal. 182. 

Orders in probate and judgments stand on like footing as 
to the rights thereby secured: Code Civ. Proc, sec. 1908, 
subd. 1 ; Freeman on Judgments, 4th ed., sec. 319b. 

Judgments (and hence orders in probate) can only be 
vacated on motion, for the reasons and within the time pro- 
vided by the code : People v. Goodhue, 80 Cal. 199, 22 Pac. 
66. After the lapse of that time the remedy is by independ- 
ent action : People v. Harrison, 84 Cal. 608, 24 Pac. 311. 

The doctrine of laches is a doctrine which obtains in equity 
only. Delay less than the period of limitation never bars the 
remedy at law. 

There is no period of limitation prescribed in probate, ex- 
cept in isolated instances, of which this is not one. 

The allegations in the answer do not make a case of fraud : 
Allen V. Currey, 41 Cal. 320 ; In re Griffith, 84 Cal. 113, 23 
Pac. 528, 24 Pac. 48 ; Pico v. Cohn, 91 Cal. 129, 25 Am. St. 
Rep. 159, 25 Pac. 970, 27 Pac. 537, 13 L. R. A. 336. But 
even if they did, they would be of no avail. Fraud must be 
proved as well as pleaded. 

An order reducing a family allowance previously granted, 
and made retroactive is error: Pettee v. Wilmarth, 5 Allen, 
144 ; Estate of Lux, 100 Cal. 593, 35 Pac. 341 ; Ford v. Ford, 
80 Wis. 565, 50 N. W. 489. 

Application granted. 



The Principal Case was AfBrmed in 106 Cal. 427, 39 Pac. 805. 
Prob. Dec, Vol. Ill —20 



306 Coffey's Probate Decisions, Vol. 3. 



Estate op ANTONIO SPINETTI, Deceased. 

[No. 13,106; decided February 19, 1894.] 

Grandparent — Promise to Support Grandchild. — The law imposes no 
duty on a grandfather to provide for his grandchild, and his promise 
to do so is without consideration, and cannot be enforced against his 
estate. 

Family Allowance. — A Grandchild whose mother is living is not 

entitled to an allowance from the estate of his deceased grandfather. 

J, M. Burnett and E. D. Sawyer, for the motion to dismiss. 
Sullivan & Sullivan, opposed. 

COFFEY, J. Antonio Spinetti died, leaving four adult 
children, and one minor child named William Spinetti. The 
petitioner is one of the adult children, and is the mother of 
Antonio Demartini, for whose benefit the petition is filed by 
her. The child Antonio was born in the house of Mr. Spin- 
etti, and lived in the house of his grandfather from his birth 
until the death of Mr. Spinetti. When Mrs. Ghiglieri ob- 
tained a divorce from Demartini (the father of the child), 
jMr. Spinetti promised he would provide for the child, and 
did so from that time. As he did not like the name of 
Demartini, the child was called Antonio Spinetti at his re- 
quest. 

The property of heirs at law, devisees and legatees can only 
be taken from them to discharge an obligation for which their 
ancestor or testator was legally bound, or which is imposed by 
the law. 

On the death of any person his property descends to his 
heirs at law, or to his legatees and devisees, subject to the 
burdens imposed on it by law. Courts do not give the prop- 
erty of one man to another, unless there is some legal obliga- 
tion calling on them to do so. While a man may be generous 
and do what he pleases with his own while living, the moment 
he dies the rights of others accrue, and those rights courts 
will not deprive them of, except where the law imposes an 
obligation in favor of one upon the other. The law enforces 
legal, and not merely moral, obligations. Therefore, if Mr. 



Estate of Spinetti. 307 

Spinetti was under no legal obligation to support his child, 
the property of respondents should not be taken for that pur- 
pose. 

Mr. Spinetti was under no legal obligation to support his 
grandson. 

"We look in vain to the laws of this state for any provision 
requiring a grandfather to support a grandson, when both 
parents are living, and where neither has been shown to be 
infirm or incapacitated in any way. On them, and not on 
him, is the burden imposed. We may as well search for a 
provision allowing a grandchild to inherit "through an an- 
cestor who is not dead." Nor can the alleged promise to 
support the child avail the petitioner. The promise, if any 
were made, was not to be performed within one year, and to 
be of any force must have been in writing: Code Civ. Proc, 
sec. 1973. 

There was no consideration for the promise. 

There was no benefit accruing to the promisor, nor was 
there anything valuable flowing from the promise : Violett' v. 
Patton, 5 Cranch, 142, 3 L. ed. 61 ; Civ. Code, sees. 1605, 1606. 

Suppose Mr. Spinetti had refused to support this child, 
could the child have sustained an action compelling him to 
perform the agreement? Where was the consideration to 
support such a promise? The court would have held the 
promise was merely gratuitous, and imposed no legal obliga- 
tion on Mr. Spinetti. 

But to go further, and stand upon the promise itself, Mr. 
Spinetti, the decedent, as the case now stands, only promised 
he would provide for the child. This duty, even conceding 
one existed, only continued during his lifetime. There was 
no valuable or good consideration, which would make the 
agreement bind his heirs or executors, or impose any obliga- 
tion on his estate. 

As Antonio Demartini is a grandchild, and his mother is 
living, he is not entitled to an allowance from the estate of 
his grandfather. 

The power to make a family allowance did not exist at 
common law. This court, sitting in probate, derives its au- 
thority from the statute, and to the statute, then, the court 
must look for that authority. 



308 Coffey's Probate Decisions, Vol. 3. 

Section 1464, Code of Civil Procedure, provides that when 
a person dies, leaving a widow or minor children, the widow 
or children are entitled to an allowance for their support 
until letters are granted and the inventory returned. Sec- 
tion 1465 says that the court may, on the return of the inven- 
tory, set apart the property exempt from execution, and the 
homestead, to the surviving husband or wife or the minor 
children. Section 1465 provides if the amount set apart be 
insufficient for the support of the widow and children, a 
further allowance may be made. As the two preceding sec- 
tions had specially mentioned minor children as those to 
whom property was set apart, the word children here must 
refer to minor children. 

Section 1468 provides that when property is set apart, 
one-half of it must ^o to the minor children and one-half to 
the surviving husband or wife; but if there be no surviving 
husband or wife, then all goes to the minor children. 

Section 1469 provides that when the estate is under $1,500, 
it all goes to the widow and minor children. 

We look in vain over these provisions of the statute to find 
any provision for a minor grandchild whose parent, through 
whom he claims descent, is living. 

"Words are to be construed according to the context and 
approved use of the language: Code Civ. Proc, sec. 16. 
There is scarcely a word plainer than "child" in our lan- 
guage. But it is always in connection with "widow" or 
"surviving husband." When a person dies leaving a 
"widow" or "minor children," says section 1464. Webster 
defines child as "a son or daughter; a male or female 
descendant in the first degree, the immediate progeny of 
parents." He also defines grandchild as a "son's or daugh- 
ter's child." The meaning of these terms in the law is plain 
and unambiguous, and the legislature is presumed to have 
meant what was said. There is no room for construction: 
Tape V. Hurley, 66 Cal. 474, 6 Pac. 129, and cases cited 
therein. 

Now, whose widow is mentioned in the statute? Certainly 
the widow of the decedent, not the widow of a son. Whose 
children are mentioned? The children of the decedent, not 
those of anyone else. 



Guardianship op Treadwell. 309. 

The right to a probate homestead would depend on the 
construction of these provisions of the statute. If the con- 
tention of petitioner be tenable, then this child would be 
entitled to have a share in a homestead to be set apart by 
this court. Yet this will not be seriously contended for. 

While discussing the statute, the fact is of importance to 
note that Mr. Spinetti left a minor child, for whom an allow- 
ance has already been made, and this brings the case directly 
within both the letter and spirit of the law. 

Section 963 of the Code of Civil Procedure gives the right 
of appeal from an order making an allowance for a widow 
or child. The section shows, by placing "widow" and 
"child" together, that the legislature, when it used the word 
"child," meant child, and nothing else. 

Motion to dismiss granted. 



Guardianship op MAUD TREADWELL et al., Minors. 

; [No. 5,038; decided November 3, 1893.] 

Guardian — Applications for Letters in Different Counties. — Where 
applications for letters of guardianship are made by different persons 
in several counties, each applicant claiming his county to be the resi- 
dence of the minors, and the second application is filed before notice 
is given of the first, and is first heard and determined, the order 
granting the same and determining that the minors are residents of 
the county of the second applicant is res judicata and a bar to the 
application first filed. 

Res Judicata. — In Considering the Question of Res Judicata, it is 

immaterial which proceeding was first instituted, if it has not reached 
a final determination. The case in which the first judgment is ren- 
dered is the prior one and controls, although rendered in the later 
proceeding. 

Guardian — Application for Letters in Different Coimties. — Where 
an application for letters of guardianship is granted by the superior 
court of one county, and an application is thereafter made to vacate 
the order on the ground that the minors are not residents of that 
county, which application is denied, the order denying it is conclusive 
upon an application for letters in the superior court of another 
county, although that application was first filed. 



310 Coffey's Probate Decisions, Vol. 3. 

Courts — Conflict of Jurisdiction. — As between courts of concurrent 
jurisdiction, that court in which process is first served has the prior 
Jurisdiction, irrespective of which proceeding is first instituted. 

Judgments. — The Doctrine of the Conclusiveness of Judgments 

against collateral attack applies to judgments of the superior court 
in probate and guardianship as well as to those in any other branch 
of its jurisdiction. 

Guardian. — The Residence Necessary to Confer Jurisdiction in 
matters of guardianship is the actual residence or abode of the ward, 
not his legal residence or domicile. 

Guardian. — Residence is not Required, under section 1747 of the 
Code of Civil Procedure, in order to confer jurisdiction in guardian- 
ship proceedings, but mere inhabitance is sufficient. 

Inhabitancy — Residence. — The Distinction Between an Inhabitant 
and a Resident is that the place one inhabits is his dwelling place 
for the time being, while the place where one resides is his estab- 
lished abode for a considerable time. 

Guardian. — A Minor Over the Age of Fourteen Years has an ex- 
clusive right to petition for the appointment of his guardian until 
he has been cited and has neglected for ten days to nominate a suita- 
ble person as his guardian. 

John Garber and W. S. Goodf ellow, for the petitioners. 
"William Rix, for the respondents. 

COFFEY, J. This is an application filed in the above- 
entitled matter by W. S. GoodfelloAv and R. H. Lloyd to have 
guardians appointed by this court for the persons and estates 
of Maud Treadwell, Thalia Treadwell, James P. Treadwell 
and Ivan Treadwell, the children of James P. Treadwell and 
Mabel Treadwell, both of whom are deceased. 

James P. Treadwell died at the city and county of San 
Francisco on the twenty-seventh day of December, 1884, 
leaving estate in said city and county, and being a resident 
thereof at the time of his death. He left surviving him his 
widow, Mabel Treadwell, and the above-named minors, and 
an infant daughter since deceased. By his will, which was 
duly admitted to probate by the superior court of the city 
and county of San Francisco, James P. Treadwell left his 
estate to his widow, Mabel Treadwell, and his said minor 
children. 



Guardianship of Treadwell. 311 

Upon applicatiuu, duly made to this court, the said IMabel 
Treadwell was on the twenty-sixth day of April, 1886, duly 
appointed by this court guardian of the persons and estates 
of said minor children, Maud, Thalia, Ivan and James P., 
and immediately entered upon the performance of her trust 
as guardian, and continued to act as such guardian down to 
the time of her death, which occurred at the city and county 
of San Francisco on the fifth day of December, 1892. 

From the time of the death of said James P. Treadwell the 
said minor children lived with their mother up to the time 
of her death, most of the time in the city and county of San 
Francisco. By will, duly admitted to probate by this court, 
said Mabel Treadwell appointed George Heazelton and the 
said W. S. Goodfellow testamentary guardians of the estates 
of her said minor children, but the said Heazelton and Good- 
fellow resigned their trust as such guardians and renounced 
their rights to letters. 

On the third day of February, 1893, and after the renun- 
ciation by the said Goodfellow and Heazelton as testamentary 
guardians, the said Goodfellow and R. H. Lloyd filed the 
present application praying this court to appoint guardians 
for the persons and estates of said minors, alleging that said 
minors had no guardians appointed by will or deed, and this 
court on the fourth day of February, 1893, made an order 
that notice of said application be given to Calvin F. Summers, 
a relative and uncle of said minors. 

During the lifetime and up to the time of the death of the 
said Mabel Treadwell, said Calvin F. Summers lived with 
said Mabel Treadwell and her said minor children in the city 
and county of San Francisco, and after the death of said 
Mabel Treadwell the said minor children continued to live 
with said Summers in the said city and county of San Fran- 
cisco. On the first day of February, 1893, and before the 
filing of the present application, the minor, James P. Tread- 
well, who was at that time over the age of fourteen years, 
left the city and county of San Francisco and took up his 
abode in the city of San Jose, county of Santa Clara ; and on 
the fifth day of February, which was after the filing of the 
present application, but before any citation or other process 
herein was issued or served, the remaining three minor chil- 



312 Coffey's Probate Decisions, Vol. 3. 

(Jren — to wit, Maud, Thalia and Ivan — removed from the 
city and county of San Francisco in company with, and in 
the custody of, their said uncle, Calvin F. Summers, to the city 
of San Jose, county of Santa Clara, where all of said minors 
took up their abode and have all since continued to live with 
their said uncle. 

On the eighth day of February, 1893, which was before 
any citation or process issued from this court was served, 
the said Calvin F. Sum^ners and E. W. Clayton applied to 
the superior court of the county of Santa Clara to be ap- 
pointed guardians of the persons and estates of the minors, 
Thalia Treadwell, James P. Treadwell and Ivan Treadwell, 
alleging that the said minors were residents of the county of 
Santa Clara. Said application, after notice duly given in 
conformity with the statute and the order of the court, came 
on for hearing in the said superior court of the county of 
Santa Clara on the tenth day of February, 1893, and the 
said court thereupon determined and decided that said 
minors, Thalia, James P. and Ivan, were residents of the 
county of Santa Clara, and appointed the said E. W. Clay- 
ton guardian of the estates of the said James P. Treadwell 
and Ivan Treadwell, and appointed the said Calvin F. Sum- 
mers guardian of the person and estate of the said Thalia and 
guardian of the persons of said James P. and Ivan — the said 
minors Thalia and James P., who were over the age of four- 
teen years, having upon said hearing consented in writing 
and requested the said court to appoint the said E. W. Clay- 
ton and Calvin F. Summers as such guardians of their per- 
sons and estates. The said Calvin F. Summers and E. W. 
Clayton duly qualified as such guardians, letters of guardian- 
ship were issued to them, and they thereupon entered upon 
the performance of their trust, and have since continued to 
act as such guardians of said minors. 

No appeal was ever taken from the order of the superior 
court of Santa Clara county appointing the said Summers 
and Clayton as such guardians of said minors, but said 
Goodf ellow and Lloyd on the sixth day of April, 1893, filed in 
said superior court of Santa Clara county an application to 
have the said order made by the superior court of Santa 
Clara county on the tenth day of February, 1893, appointing 



Guardianship of Treadwell. 313 

the said Summers and Clayton guardians of said minors re- 
voked and recalled, and set forth in said application the fact 
of the filing by them on the third day of February, 1893, of 
the present application in this court, and alleged in said ap- 
plication that the said minors were not residents or inhabi- 
tants of the county of Santa Clara, but were residents and 
inhabitants of the city and county of San Francisco. Upon 
and pursuant to this application to revoke, orders to show 
cause were duly made by the said superior court of Santa 
Clara county requiring the said E. W. Clayton and the said 
Calvin F. Summers to appear before the said superior court 
of Santa Clara county on the seventeenth day of April, 1893, 
and then and there to show cause why the letters of guardian- 
ship issued to them by said court should not be revoked and 
set aside upon the ground that the said minors were at said 
time, and were at all times, residents of the city and county 
of San Francisco, and upon the ground that before and at 
the time of the commencement of proceedings in the said 
superior court of Santa Clara county, the superior court in 
and for the said city and county of San Francisco had and 
was exercising jurisdiction of the estate and guardianship of 
said minors. 

Pursuant to said orders to show cause, the said Calvin F. 
Summers and E. W. Clayton appeared in the superior court 
of Santa Clara county and filed a written answer to the said 
application of the said Lloyd and Goodfellow; and the said 
orders to show cause, and the issues raised by said applica- 
tion and the said answer thereto, came on regularly to be 
heard in said superior court of Santa Clara county and were 
duly heard and considered by said court, and the said court, 
on the twenty-seventh day of April, 1893, made and entered 
its order whereby it ordered that the application of the said 
Goodfellow and Lloyd to have the order theretofore made 
appointing the said Clayton and Summers revoked and the 
said letters of guardianship set aside be denied, and the said 
orders to show cause discharged. No appeal was ever taken 
from this last-mentioned order of the superior court of Santa 
Clara county, although an appeal was attempted to be taken 
after the statutory period for appeal had elapsed and the 
order had become final. 



314 Coffey's Probate Decisions, Vol. 3. 

The citations issued from this court on the present applica- 
tion were not served until after the superior court of Santa 
Clara county had made the order above mentioned appoint- 
ing the said Summers and Clayton guardians — citations is- 
sued on the twelfth day of April, 1893, having been served 
on Thalia Treadwell and James P. Treadwell at the city of 
San Jose on the fourteenth day of April, 1893, and a citation 
issued on the eighth day of IMay, 1893, having been served on 
said Calvin F. Summers on the tenth day of May, 1893. No 
citation was ever served on Ivan Treadwell. 

Before the present application came on for hearing in this 
court, and on the sixth day of July, 1893, the said Maud 
Treadwell attained her majority. 

The said Calvin F. Summers, Maud Treadwell, Thalia 
Treadwell and James P. Treadwell, in obedience to the said 
citations, appeared in this court by their attorneys, and on the 
twenty-second day of September, 1893, filed an answer to the 
said application of said Lloyd and Goodfellow, and in said 
answer set up and pleaded in bar of this proceeding the 
order so made by the superior court of Santa Clara county — 
to wit, the order made by said court on the tenth day of 
February, 1893, appointing the said Clayton and Summers 
guardians, and the order made by the said court on the 
twenty-seventh day of April, 1893, denying the application 
of the said W. S. Goodfellow and R. H. Lloyd to have the 
letters of guardianship issued to said Summers and Clayton 
revoked — and upon the hearing in this court they introduced 
in e\idence the record of the proceedings so had and taken 
in the superior court of Santa Clara county. 

The said Maud Treadwell and the said minors, Thalia and 
James P., testified on the hearing that the present applica- 
tion made by said Lloyd and Goodfellow^ had not been made 
at their request or with their consent, and the said Thalia 
and James P. testified that they did not desire guardians to 
be appointed for them in this proceeding, but were satisfied 
with the guardians appointed by the superior court of Santa 
Clara county; and the said Calvin F. Summers, Maud Tread- 
well, Thalia Treadwell and James P. Treadwell testified that 
at the time of their removal from the city and county of San 
Francisco to the city of San Jose they had no knowledge or 



Guardianship of Treadwell. 315 

notice of the present application or of any application made 
to the court for the appointment of guardians, and further 
testified that the said Mabel Treadwell shortly before her 
death had placed the said minors and the said I\raud, who 
was at that time a minor, in the charge and custody of their 
uncle, Calvin F. Summers, and requested that in the event 
of her death he should remove them from the city and county 
of San Francisco. 

The order of the superior court of Santa Clara county ap- 
pointing guardians is a complete bar to this proceeding, for 
it is the judgment first obtained that controls, although ren- 
dered in the later suit or proceeding : Wells on Res Judicata, 
sec. 292, and cases cited ; Van Fleet on Collateral Attack, sec. 
580; Mount v. Scholes, 120 111. 402, 11 N. E. 401; 2 Black on 
Judgments, see. 791 ; 7 Rob. Pr. 224 ; Estate of Sealy, 1 Cof . 
Pro. Dec. 90; Casebeer v. Mowry, 55 Pa. 422, 93 Am. Dec. 
766. 

When we are considering the question of res judicata, it 
is not material which proceeding was first instituted if it 
has not reached a final determination. The case in which 
the first judgment is rendered is the prior one, and that, too, 
whether it is a domestic or a foreign judgment: 21 Am. & 
Eng. Ency. of Law, 233, and cases cited. 

Not only is the order made by the Santa Clara court ap- 
pointing the guardians a complete bar, but the order made 
by that court refusing to set aside the order appointing 
g-uardians is certainly also conclusive here, as the very ques- 
tion sought to be litigated in this proceeding was litigated 
and contested upon the application which resulted in the last- 
mentioned order : Gregory v. Kenyon, 34 Neb. 640, 52 N. W. 
685, 687. 

Moreover, the order of the Santa Clara court appointing 
guardians is in any event binding upon the whole world, for. 
as shown by the record introduced in evidence, the notices 
required by the statute were duly given, and it was the duty 
of anyone objecting to the application there made to appear 
and contest the same. 

The principle that the judgment first obtained controls, 
when pleaded as a bar, does not at all conflict with the well- 
recognized doctrine relied upon by counsel for the San Fran- 



316 Coffey's Probate Decisions, Vol. 3. 

Cisco application, that where the jurisdiction is concurrent, 
the court first obtaining it will be entitled to hold it: Mount 
V. Scholes, 120 111. 402, 11 N. E. 401. 

But as between courts of concurrent jurisdiction, that 
court in which process is first served has the prior jurisdic- 
tion irrespective of which proceeding is first initiated: Bell 
V. Ohio etc. Co., 1 Biss. 260, Fed. Cas. No. 1260; Union etc. 
Ins. Co. V. University of Chicago, 10 Biss. 191, 6 Fed. 443; 
;In re Danneker, 67 Cal. 643, 8 Pac. 514; Code Civ. Proc, sec. 
*416. See, also, Sheldon's Lessee v. Newton, 3 Ohio St. 494, 
499, 500; Keating v. Spinks, 3 Ohio St. 105, 62 Am. Dee. 
214; Ball v. Tompkins, 41 Fed. 490; Smith Purifier Co. v. 
McGroarty, 136 U. S. 237, 10 Sup. Ct. 1017, 34 L. Ed. 346. 

As to when a court acquires jurisdiction over the subject 
matter, see Ball v. Tompkins, 41 Fed. 490. 

That service of some character is necessary in proceedings 
for the appointment of guardians in order to acquire juris- 
diction, see Burroughs v. De Couts, 70 Cal. 373, 11 Pac. 734 ; 
Seaverns v. Gerke, 3 Saw. 353, Fed. Cas. No. 12,595. 

The question of residence, upon which question depends 
the jurisdiction of the superior court to appoint guardians, 
being a matter which the superior court of Santa Clara 
county had a right to hear and determine, the conclusion 
reached by that court is conclusive in this proceeding; for 
the determination by a court of general jurisdiction or court 
of record of any fact or facts upon which its jurisdiction 
depends is conclusive against collateral attack in another pro- 
ceeding : Irwin V. Scriber, 18 Cal. 500 ; Warner v. Wilson, 4 
Cal. 310; Burroughs v. De Couts, 70 Cal. 373, 11 Pac. 734; 
In re Pierce, 12 How. Pr. 534; Guardianship of Danneker, 
67 Cal. 643, 8 Pac. 514. 

And generally upon this question, see Callen v. Ellison, 13 
Ohio St. 446, 82 Am. Dec. 448, and note; Coit v. Haven, 30 
Conn. 190, 79 Am. Dec. 244, and note; Hammond v. Daven- 
port, 16 Ohio St. 182; Halm v. Kelly, 34 Cal. 413, 94 Am. 
Dec. 742; Carpentier v. Oakland, 30 Cal. 446; Hodgdon v. 
Southern Pacific Co., 75 Cal. 642, 17 Pac. 928; Paine v. 
Schenectady Ins. Co., 11 R. I. 411, 416. 

The doctrine of the conclusiveness of judgments against 
collateral attack applies to judgments and decrees of the pro- 



Guardianship of Treadwell. 317 

bate court or of the superior court sitting in probate and 
matters of guardianship, as well as to those of any other 
tribunal: Irwin v. Scriber, 18 Cal. 500; Burroughs v. De 
Gouts, 70 Cal. 373, 11 Pac. 734 ; Garwood v. Garwood, 29 
Cal. 514; Arlaud's Succession, 42 La. Ann. 320, 7 South. 
532; Succession of Winn, 3 Rob. 304; Tutorship of Hughes, 
13 La. Ann. 380, and other cases cited supra. 

The residence necessary to confer jurisdiction in matters 
of guardianship is the actual residence or abode of the ward, 
not his legal residence or domicile: In re Hubbard, 82 N. Y, 
90; In re Pierce, 12 How Pr. 532; Ex parte Bartlett, 4 
Bradf . 221 ; Ross v. Southwestern R. R. Co., 53 Ga. 514 ; In re 
Raynor, 74 Cal. 422, 16 Pac. 229. 

Under our law a minor fourteen years old may change his 
residence, although it be admitted that he cannot by his own ^ 
act change his domicile : Pol. Code, sec. 52 ; In re Raynor, 74 
Cal. 422, 6 Pac. 229. 

But our statute does not even require residence in order to 
confer jurisdiction; mere inhabitance is sufficient: Code Civ. 
Proc, sec. 1747. 

"Inhabitance: abode in a dwelling place for the time 
being. It is distinguished from the temporary sojourn of 
a transient person, but as often used it does not necessarily 
imply the finality of intention respecting abode that is im- 
plied by domicile. Inhabitance refers rather to actual abid- 
ing, domicile to the legal relation which is not necessarily sus- 
pended by absence": Century Dictionary. 

"Resident: in law an established abode fixed for a consid- 
erable time, whether with or without a present intention of 
ultimate removal. A man cannot fix an intentionally tem- 
porary domicile, for the intention that it be temporary makes 
it in law no domicile, though the abode may be sufficiently 
fixed to make it in law a residence in this sense. Residence 
is a fact easily ascertained; domicile a question difficult of 
proof. It is true that the two terms are often used as syn- 
onymous, but in law they have distinct meanings": Century 
Dictionary. 

The correct construction of the sections of the Code of 
Civil Procedure relating to the appointment of guardians of 
minors is that a minor over the age of fourteen years has the 



318 Coffey's Probate Decisions, Vol. 3. 

exclusive right to petition for the appointment of his guard- 
ian until he has been cited to appoint a guardian and has 
neglected for the period of ten days: Code Civ. Proc, sees. 
1747-1749. 
Application denied. 



As to the Conflict in Jurisdiction where letters testamentary or of 
administration are applied for in different counties, see Estate of 
Sealy, 1 Cof. Pro. Dec. 90, and note. 



Estate of P. N. MACKAT, Deceased. 

[No. 13,461; decided August 13, 1894.] 

Marriage — Wliite and Colored Persons. — A marriage between a 
white man and a colored woman is forbidden by the law of Cali- 
fornia, but if such a marriage is contracted in a state where it is 
valid, it will be recognized in this state. 

Family Allowance — Validity of Marriage. — Where a colored woman 
claims to be the wife of a decedent by virtue of a marriage con- 
tracted in another state, she must, on her application for a family 
allowance, establish the marriage by a preponderance of proof, and no 
presumption will be indulged in her favor. 

Family Allowance — Disputed Marriage. — Upon an application for a 
family allowance by a woman whose marriage to the decedent is 
disputed, her marriage must be established by the same quality of 
proof as in any other case. 

Contract Marriage. — An Agreement to be "Husband and Wife" is 

distinguished from an agreement to live together as "man and wife." 
The latter agreement does not constitute a contract of marriage, and 
living together as "man and wife" does not constitute marriage. 

Contract Marriage. — In Considering the Claim of a Contract Mar- 
riage, the circumstance that the alleged widow, a few days after 
her alleged husband's death, stated to the executors of his will that 
she was with child by him, and did not then or until sometime 
afterward assert her claim to widowhood, is to be taken as strongly 
negativing such claim. 

Contract Marriage — Evidence. — The Acts of a Testator in making a 
bequest to a woman under a surname other than his own and describ- 
ing her as his housekeeper, and in acknowledging a deed before an 
officer as an unmarried man, are evidence as to the truth of the 
facts so stated. 



Estate of Mackay. 319 

Void Marrir.ge— Legitimacy of Issue. — Where the claim is made 
that a marriage was contracted in another state, which, if there 
contracted in fact, is valid under the laws of that state, and hence 
valid in this state, although such marriage would have been void if 
contracted in this state, the provision in section 1387 of the Civil 
Code that the issue of all marriages null in law are legitimate has 
no application. 

Family Allowance — Void Marriage. — The court in this case finds: 
That the petitioner is not the widow and her child is not the child, 
either legitimate, adopted or illegitimate, of the decedent, and that 
the application for a family allowance should be denied. 

Chas. J. Heggerty and Gaston Straus, for the petitioner. 

Oliver P. Evans, for the executor. 

COFFEY, J. This is an application, by petition, by and 
in behalf of Harriet Schenck Mackay for a family allowance 
under the statute, section 1466, Code Civil Procedure. The 
petition sets forth and alleges that P. N. Mackay died in San 
Francisco on April 21, 1893; that at the time of his death 
he and the petitioner were, and continuously from the 5th of 
September, 1880, had been, married as husband and wife, 
living, residing and cohabiting together as such, and mutually 
assuming and bearing each toward and with the other the 
relations, marital rights, duties and obligations of husband 
and wife; that said Mackay and petitioner, on about the 
fifth day of September, 1880, in the city and state of New 
York, mutually agreed and contracted to then and there be 
and become and thereafter, during their lives, continue mar- 
ried, under and by virtue of the laws of said state of New York. 
and to mutually sustain, bear and assume toward each other, 
and the world at large, marital rights, duties and obligations 
as husband and wife ; and that then and there, under and by 
virtue of the laws of said state of New York, they were mar- 
ried in said state and became and were husband and wife 
and from that time on continuously down to the moment of 
his death said Mackay and petitioner resided, lived and co- 
habited together as husband and wife, and mutually assumed, 
bore and sustained toward each other and the world at laro-e 
marital rights, duties and obligations as such husband and 
wife; that as such husband and wife they lived, resided and 



320 Coffey's Probate Decisions, Vol, 3. 

cohabited together as Mr. and Mrs. P. N. Mackay in the said 
city and state of New York, from about the 5th of Septem- 
ber, 1880, until about the 1st of March, 1884, whence, on about 
said last date, they removed to San Francisco, California, 
where they since lived and cohabited as such husband and 
wife and as Mr. and Mrs. P. N. Mackay from about the 25th 
of March, 1884, continuously down to the moment of his 
death on April 21, 1893, when he died in the arms of the 
petitioner in their family home, 1625 Polk street; that the 
laws of New York render and make incapable of contracting 
marriage in said state only those persons included within cer- 
tain categories which did not comprehend either decedent or 
petitioner, and that they were both over the age of nineteen 
years, and by those laws they were both capacitated so to 
contract. 

That on the twenty-second day of June, 1893, there was 
born to petitioner a child thereafter christened and named 
Ruth Margaret Mackay, which child was and is the issue and 
child of said marriage between decedent and petitioner; 
that an inventory and appraisement of the estate left by 
decedent shows its value as $355,000; that the indebtedness 
does not exceed $25,000; that the petitioner has no means of 
maintenance for herself and child, and that $250 per month 
is a reasonable sum to be allowed for their support pending 
settlement of estate. All of these allegations are traversed 
by the respondent executor, Duncan C. Mackay. It appears 
that the other executor, Robert G. Mackay, was not joined 
as a respondent or served with process, and a dismissal is 
asked for on the ground of nonjoinder, but that is not deemed 
of consequence by the court, as the application should be dis- 
posed of on its merits and not treated technically, if, indeed, 
there were anything in this point. 

It is in proof that the applicant is a colored woman of the 
African race and that the decedent was a white man of the 
European race, and, consequently, they were incapable of 
contracting marriage, according to the laws of the state of 
California. If the relation of husband and wife subsisted 
between them, it must have been contracted elsewhere, in 
some country or state which recognized the validity of such a 
union. The allegation of the petition is that a marriage took 



Estate of Mackat. 321 

place in Ne3V York by contract on about the 5th of Septem- 
ber, 1880. It seems that the laws of that state do not forbid 
such contractual conjugal relations, and therefore, if the 
testimony upon this point be true, the status thus created by 
contract entitles the applicant to the relief sought. It is in- 
cumbent upon her to establish her claim by a preponderance 
of proof. No presunaption may be indulged in favor of her 
claim under the statutes of the state of California, which 
positively prohibit such marital miscegenation; but if it be 
shown by trustworthy testimony that such relation, however 
repugnant to our laws, had its origin in a manner and by a 
mode conformable to the statutes of another sovereign state, 
the courts of California are bound to respect it and to treat it 
as if it were not contrary to our code. If this court is not 
convinced that the applicant made a contract with the dece- 
dent in New York according to the substance of the allegation 
in her petition, then and there agreeing to be husband and 
wife, then her case fails entirely, and all the testimony intro- 
duced as to subsequent events becomes unimportant and im- 
material. It can only be considered as tending to corroborate 
her claim of contract. 

Is this claim of contract supported by the evidence? Do 
the allegations and testimony correspond? To what extent 
is the petition fortified by proof? In her petition the date 
of the contract is stated to be "on about the 5th of Septem- 
ber, 1880." It appears that neither she nor decedent was in 
New York in 1880. In her testimony she first stated that 
they went to Denver in the fall of 1879 and from there to 
New York the next fall; "the marriage contract was written 
and signed in Denver, Colorado; he signed it first, then I 
signed it; he kept the paper; no copy was made; we were 
there a year or a year and a half." Upon further examina- 
tion she said they did not go to New York until after Presi- 
dent Garfield was assassinated; went there in the fall after 
the assassination, which was the fall of 1881 ; got married in 
New York in the same old way — no priest, lawyer, license, 
minister or judge, the same way by contract ; the reason they 
got married again was that in Colorado and California 
colored and white persons cannot intermarry; in New York 
it is different ; decedent kept the paperj she never touched his 

Prob. Dec, Vol. Ill —21 



322 Coffey's Probate Decisions, Vol. 3. 

papers. There is a discrepancy as to dates here between 
allegation and proof. In her testimony she says she was 
born in Fredericlvsburg, Virginia, "after the war," and that 
she is now (January, 1894) twenty-six or twent.y-seven years 
old, but in her petition she sw^ears that in September, 1880. 
she was over nineteen years of age — a disparity of at least 
six or seven years. In her petition she states that she and 
decedent lived, resided and cohabited together as Mr. and 
Mrs. P. N. Mackay in the city of New York from about Sep- 
tember 5, 1880, until March 1, 1884; in her testimony she 
says she was in New York City from the fall of 1881 to 
March, 1884. There is no evidence to corroborate her state- 
ments, except the item of the tag from the drygoods house 
of Hugh O'Neill for a hat sold to a Mrs. Mackay for $3, and 
the deposition of the merchant showed that he recalled noth- 
ing of the transaction and knew nothing of the party. In 
fact, there is no evidence, apart from this tag, of a corrobora- 
tive character from New York to support the pretensions of 
petitioner. Her claim is, as stated by her counsel, of a mar- 
riage by a civil contract, followed up by repute of the neigh- 
borhood in which the parties lived subsequent to the execution 
of the civil contract. There is no evidence from the neigh- 
borhood in New York where she claims to have so lived and 
cohabited with decedent. Her whole case of contract depends 
upon her statement. Her counsel argue that in an applica- 
tion for an allowance for support of family, strict proof of 
marriage is not requisite, but that if it be, such evidence has 
been adduced. The rule is that upon such an application the 
marriage must be established by the same quality of proof as 
in any other case. 

The petitioner says she started from San Francisco in Sep- 
tember, 1879, with P. N. Mackay, and that they traveled from 
here together in a Palace sleeping-car, occupying the same 
section at night, she the upper and he the lower berth, and 
took their meals on the train all the way from here to Den- 
ver. She is contradicted by Duncan C. Mackay, who traveled 
over the road in that month and j^ear with his family. He 
says that meals were not served on the cars at that time. Pas- 
sengers had to get out at eating-houses ; that he inquired of a 
porter as to whether they could get meals on the train and 
,was told they could not. 



Estate of Mackay. 323 

The evidence of Mr. Horsbnrgh, one of the managing pas- 
senger agents of that road, is that in 1879 no meals were 
served on board the train, and that the buffet service was not 
introduced until 1884. 

If it is a fact that meals were served on those trains in 1879, 
it might have been proved by some of the numerous porters 
or conductors who were engaged there during that year. The 
fact that this has not been done shows that what Mr. D. C. 
Mackay and the railroad agent said is true. Is this a matter 
about which the petitioner would be mistaken? Would she 
be mistaken about having meals served on that train in 1879, 
going to Denver with Mr. Mackay to be married? She must 
have realized that she was in a delicate position traveling in 
a train with a white man, occupying the same section with 
him, and she must have been in a state of mind that would 
make it literally impossible to be mistaken whether they took 
their meals on a train or not. She starts at the very incep- 
tion of this case with an important statement which is untrue. 
She is flatly contradicted by two witnesses, and no attempt to 
corroborate her evidence has been made. 

Counsel for petitioner, in his opening argument, referred 
to the case of Pearson v. Pearson, reported in 51 Cal. 120, in 
which it was held that Laura Pearson, a mulatto woman, was 
the widow of Richard Pearson, a w^hite man. That whole 
case hinged upon the fact that Richard Pearson, in his will, 
designated Laura as his wife and her children as his children, 
and devised his whole estate to them. The same case reported 
in 46 Cal. 609, establishes a doctrine favorable to the conten- 
tion of the respondent in the case at bar. 

Richard Pearson was married in Missouri by a solemnized 
marriage to Martha Powers. There was issue of that mar- 
riage Adelaide Pearson. Subsequently he was divorced from 
Martha, and brought this mulatto woman from Missouri to 
Utah, and there, according to her evidence, they contracted 
marriage by agreement in the following language : 

"Q. What was the agreement? A. Well, the agreement 
was this: he told me that he would be my husband and I 
would be his wife. 

"Mr. Van Clief — Q. Those are the very words he said? 
A. Those are the words he said, and that he would be kind 



324 Coffey's Probate Decisions, Vol. 3. 

to me and I must be kind to him, and that I would live with 
him as long as he lived." 

This precise language is worthy of specific notation. Even 
if this petitioner had made the contract with Mr. Mackay 
that she claims to have made, it would not have constituted 
marriage under a decision of the supreme court of this state. 
An agreement to be husband and wife is distinguished from 
an agreement to live together as man and wife, as petitioner 
says the agreement was in this case. When Pearson came to 
California from Utah he brought this mulatto woman with 
him and settled on Grand Island in Colusa county, and there 
lived for something like ten years, raised a large family of 
children and dealt with the woman and children as his wife 
and children commonly in the community in which he lived. 
He was a wealthy man. The children grew up and were 
known to the neighbors by the name of Pearson — Theodore, 
Henry, Mary, William, Richard and Jefferson Pearson. Be- 
fore he died in 1865 he executed his will, which was subse- 
quently admitted to probate, and in which he designated 
Laura as his wife, and the children by name as his children, 
and devised and bequeathed his whole estate to them. The 
estate was distributed to the devisees and legatees named in 
the will. The probate of the will was effectual, but there was 
a defect in the notice in regard to distribution, and the con- 
sequence was that the distribution was not final or binding 
on the child of his first wife, Adelaide Pearson. She insti- 
tuted suit to recover the whole estate, on the ground that she 
was pretermitted, and was entitled under the statute to the 
same interest in the estate as she would have been if there had 
been no will. She claimed that Laura was not the wife of 
Richard Pearson and that the children were not his. In other 
words, that Laura was his mistress and the children bastards. 
Upon that issue the case went to trial in Colusa county be- 
fore Judge Keyser, and the only evidence introduced touch- 
ing the subject of marriage was the will itself. Upon that 
evidence Judge Keyser decided that there was no marriage. 
In the supreme court it was contended that the will itself 
was not only evidence, but the very best kind of evidence of 



Estate of Mackay. 325 

the facts therein recited, and the supreme court sustained 
this contention and reversed the judgment of the lower court. 

The comparison between that case and the case at bar may 
be borne in mind, where the petitioner is described in the will 
of P. N. Mackay as "Hattie Schenck, housekeeper." 

Theodore, Mary, Henry, William, Richard and Jefferson 
Pearson were described in the will of Pearson as children of 
the testator. 

Under the authority of Pearson v. Pearson, 46 Cal. 609, 
the declarations of P. N. Mackay in his will devising to "Hat- 
tie Schenck, housekeeper, " a certain legacy, and in his deed, 
acknowledged before Notary King, that he was an unmar- 
ried man, are the very best evidence as to the truth of the 
facts so stated. According to the doctrine of Pearson v. Pear- 
son, 46 Cal. 609, an entry in a family Bible, an inscription 
on a tombstone, a pedigree hung up in the family mansion, 
are all good evidence ; declarations of parents in their lifetime 
are statements made without any temptation to exceed or fall 
short of the truth. So the statement of P. N. Mackay in his 
will, when he said "Hattie Schenck, housekeeper," was the 
natural effusion of the party who knew the truth. So the 
declaration before the commissioner that he was an unmar- 
ried man was the natural effusion of the party who knew the 
truth. 

These are two of the most solemn declarations a man could 
make, one in his will and the other in an acknowledgment to 
a deed, where the law required him to state whether he was 
married or not; the latter, made in a most public and solemn 
manner before a commissioner of the state of Washington 
authorized to take such acknowledgments. How are these 
declarations to stand against the uncertain evidence of per- 
sons who are brought here to say that decedent said that he 
was married or that petitioner was his wife, or words to that 
effect? Are a man's solemn declarations in instruments of 
that kind of less avail than such transient testimony? The 
authorities cited in Pearson v. Pearson say that they are most 
important in such matters. 

In Whitelock v. Baker Lord Eldon says: *'Who must know 
the truth ? And who speaks upon an occasion when his mind 



326 Coffey's Probate Decisions, Vol. 3. 

stands in an even position, without any temptation to exceed 
or fall short of the truth?" 

So far from the case of Pearson v. Pearson being an au- 
thority for petitioner, it is directly against her; and it estab- 
lishes a principle contrary to her contention. It is true that 
in the Pearson case the woman who claimed to be the widow 
was a mulatto and within the statute prohibiting marriages 
between whites and blacks and mulattoes. The proposition 
in the Pearson ease was whether the mulatto woman, Laura, 
had contracted a marriage with Pearson in Utah, a country 
in which it was competent for her to contract marriage with 
a white man. That contract was followed by cohabitation, 
open and notorious, for a long number of years, and the rear- 
ing of a family in this state. But the point upon which the 
whole case hinged was his declaration in his will that she was 
his wife and that the issue were his children. Suppose Rich- 
ard Pearson in his will had said Laura Jones, housekeeper, 
or Laura Schenck, housekeeper, would the court have decided 
that there was a marriage ? Certainly not. Suppose Richard 
Pearson, within a reasonable time before his death, had made 
a solemn declaration, such as Mackay made, that he was an 
unmarried man, could a marriage be maintained between 
Richard Pearson and Laura? Certainly not. That case is 
unlike the case at bar. 

The evidence of the petitioner is that she took regular meals 
on the train. She describes how the table was situated and 
how it was attached to the side of the car on that train all 
the way from San Francisco to Denver. That evidence is 
shown to be false. 

Next, according to her evidence at Denver, having arrived 
there in September, 1879 — in her deposition: "I got married 
in Denver; after we went to New York he gave me another 
writing. 

"Q. Did you get married in Denver? A. We drew a con- 
tract in Denver, and when we went to New York he WTote 
another. We went from here (San Francisco) in 1879." 

She says the only persons she knew at Denver were Mrs. 
Ghost and her sister, also Mrs. Ghost. They were married 



Estate op Mackay. 327 

to brothers. She never knew any colored people in Denver. 
"Don't know any store we traded with in Denver." 

Why didn't the petitioner produce the testimony of the 
Ghosts, if they knew her there, in any way that would be 
favorable to her case? 

Petitioner states that when they reached Denver they went 
to a hotel, but she is unable to locate it by name or number. 
She says they took their meals there at the public table, to- 
gether. This is not probable in the circumstances. 

Coming to the next proposition — the contracts which she 
claims were made in Denver and New York, which she has 
not produced here, and which she intimated were taken away 
with the papers of P. N. Mackay by the executors. Some 
comments may be indulged about the improbability of her 
ever having had any such contracts and having allowed them 
to be lost, destroyed or carried away by the executors. 

It will be borne in mind that P. N. Mackay died on Fri- 
day, the 21st of April, 1893. His body was removed from 
his house on the Sunday following; he was buried at Roek- 
ville, in Solano county, on Monday, the 24th. The executors 
never asked for his papers, his trunks, nor personal belong- 
ings until Tuesday, the 25th, so that petitioner had in her pos- 
session, under her entire control, the trunks, with the keys 
and the loose papers in the bureau drawer, from Friday, the 
day of his death, until Tuesday following — four days — with 
unlimited power to do as she pleased with them. 

Robert G, Mackay testified that when they got the trunks 
they were unlocked and petitioner had the keys. George 
Mackay saw her handling the papers in the bureau drawer ; 
and tearing up some of them after his uncle's death. He told 
his mother about it. (See evidence of Mrs. Rosa Mackay.) 
Is it within the range of probability that she had, or that 
there existed among those papers, written contracts which de- 
clared that she was the wife of P. N. Mackay, and that she 
did not take and keep them? She says that she never had 
the control of these contracts. He kept them in his trunk; 
she left them in his possession; she trusted him implicitly. 
But in another place she says she showed the contract to a 
Mrs. Emily Montcur. This is a contradiction. She either 



328 Coffey's Probate Decisions, Vol. 3. 

had the paper in her possession or she did not have it. She 
says she saw the contract at Polk street. She says she never 
had possession of it, and then at the same time says she showed 
it to ]\Irs. Montcur at the house of petitioner. "What is the 
truth? What are the probabilities? One might infer from 
her story about these marriage contracts that they were made 
for Mr. Mackay's protection, not for hers. Was he afraid 
that she would deny the marriage relation? It is to be pre- 

. sumed that such contracts are made for the woman's pro- 
tection. Here the order seems (from her evidence) to have 
been reversed, and the man procured the evidence of marriage 
and securely locked it in his trunk for his protection. 

Petitioner admits that when Duncan C. and Robert G. 
Mackay, the executors, came to 1625 Polk street to get the 
effects of the deceased she had in her mind the question of 
the difficulty of establishing the fact that she was the widow 
of P. N. Mackay, but it never occurred to her to look for 
that contract; and it never occurred to her to tell the execu- 
tors that she claimed to be the widow of P. N. Mackay. She 
says that upon that occasion she told them that she was with 
child by P. N. IMackay, and yet she never intimated, accord- 
ing to her own evidence, upon that occasion that she claimed 

I to be his widow. If at that time she had the slightest con- 
sciousness of a just claim of being the widow of P. N. Mackay, 
can it be believed that she would not then and there have 
asserted it? When people do not speak when they ought to, 
they may not be heard when they do. 

When Duncan C. Mackay and Robert G. Mackay went to 
that house on Polk street and asked this woman for the papers 
and trunks of the deceased, she said she was in the family 
way by him. She did not then claim to be his widow. That 
is a signijficant fact. If she had intended to assert such a 
claim then is when she would have spoken, and not later, after 
she had had time to reflect and conclude that possibly she 
might establish such a claim. A woman who has to take time 
for reflection before she can determine whether she has been 
married or not certainly never was married. 

The letters written by P. N. Mackay to petitioner show 
clearly that no marital relation existed between them — not 



Estate of Mackay. 329 

even the sexual relation of man and mistress. These letters 
are, without exception, addressed on the envelope, "Mrs. 
Hattie Schenck," and without exception addressed inside to 
"Hattie," or "My dear Hattie," or "Dear Hattie," and are 
uniformly signed "Your friend." They contain expressions 
of friendship, wishes for her welfare and health, and particu- 
larly that he would like to eat some lamb and green peas 
prepared according to her style of cooking. He says she knew 
how to boil bacon very well. To a question put by the court, 
she answered that she cooked for Mr. Mackay and he paid 
her for it. 

"Q. Paid you to cook it, did he? A. Yes, sir; he did." 

But subsequently she corrected this so her answer would 
read: "A. No, sir; he did not." 

There is a conspicuous absence in these letters of any ref- 
erence to love, or suggestion that she is his wife. In none 
of them is there any term of endearment or w^ord that would 
not properly be used by a man writing to a good servant. 
How should a man address a servant in a letter? Would 
he say Mrs. Hattie Schenck? "Dear Hattie" would be the 
most natural expression for a man to use to his servant, and 
his signature is dignified, natural and respectful — "Your 
friend." She testified: "I often received correspondence 
from my friends in the name of Mrs. Mackay." Where is 
that correspondence? The only approximation to such cor- 
respondence produced was a note purporting to have been 
written to her by Annie Taylor. She preserved the letters 
addressed "Mrs. Hattie Schenck." Why not the others ad- 
dressed "Mrs. Mackay"? If they had an agreement, as she 
states, to call each other "ducky" and no other name, would 
not that word have appeared in some of these letters? Does 
he express a wish that she could be near to him with a ' ' com- 
municating room"? Is there any such expression in any of 
these letters? She testifies that "during a portion of the 
time, we were living at 1625 Polk street and in New York, 
we occupied the same bed and room." 

According to petitioner's evidence, they left San Francisco 
engaged to be married when they arrived in Denver ; she never 
h.ad any sexual intercourse with Mr. Mackay, or with any 



830 Coffey's Pkobate Decisions, Vol. 3. 

other man, until after this marriage contract was made in 
Denver, and yet they were three or four days in the hotel 
with communicating rooms. In one place she said they made 
the contract and he put the ring on in the hotel; in another 
statement it was about a week after they moved into a fur- 
nished house ; in another place it was after Christmas. What 
were they doing in that house during this week, or until 
Christmas? Three or four days in the hotel, a week or month 
in a house with communicating rooms, before the contract was 
made. What purpose did they have in living in that way! 
Was she there as housekeeper, servant, or mistress? She was 
not his wife. It was certainly an equivocal position for a 
girl of her age, if her testimony as to her present age be true. 

Petitioner has stated different times and years as to her 
arrival in New York ; in one place she says she was in Denver 
in the fall of 1879 ; in New York the next fall. That would 
be in 1880. Says she went to New York the fall after Gar- 
field was assassinated — that is, in 1881. The marriage she 
puts at some indefinite time after she arrived there. She does 
not know and cannot state. In one place she says she never 
read the contracts ; in another, that he kept them in his trunk ; 
again, she showed the contract to Emily Montcur at her — 
petitioner's — house. She saw it on Polk street. What were 
these contracts? What was the substance of them, or what 
did they state? What w^s the language? "He signed and 
then I signed after him." "Should live together as man and 
wife as long as we lived." "I did not read it; .... I don't 
remember the words." "He said we should live together as 
long as we lived, as man and wife." "New York marriage 
same as Denver." "We didn't have no judge or lawyer or. 
license." "We didn't have no priest." 

In Letters v. Cady, 10 Cal. 537, it was decided that such 
language does not constitute a contract to be husband and 
wife. "Living together as 'man and wife' is not marriage, 
nor is an agreement so to live a contract of marriage," is the 
language of the court. This case expresses the law of this 
state now in force, and is binding authority for this court. 
Under this authority a contract such as she claims, it is argued, 
would not constitute a marriage even if it had been made. 



Estate of Mackay. 331 

Letters v. Cady was decided before the law in tliis state was 
so changed as to make it necessary in addition to the contract 
that there should be an assumption of marital rights, duties 
or obligations. 

How could she show her contract to Emily Montcur at the 
house of petitioner if she never had possession of it? How 
was that possible? Where did she get the contract to show? 
Then, again, she says she saw it on Polk street. She says that 
the papers were kept in a bureau drawer. She had access to 
Mr. Mackay 's papers for four days after his death. If she 
had any such contract, or there had been one, as she claims, 
she certainly would have taken it and kept it. To say that she 
did not think of it is idle. She knew its importance, if she 
knew there was such a contract. There is another very signifi- 
cant fact that petitioner admits herself; she never received a' 
letter from Mr. Mackay in which the words ''dear wife" or 
"dear ducky" appeared. She says that when Duncan C. 
Mackay came to obtain his deceased brother's effects she then 
had in her mind that her claim to be the widow would be dis- 
puted. She then thought of that subject between the death of 
P. N. Mackay on Friday and the day that Duncan Mackay 
came to get those papers and trunks on Tuesday following, and 
yet, knowing that her claim to wifehood would be disputed, 
she never thought of looking for this contract (although it was 
there among those papers), or asserting her claim of widow- 
hood. 

Petitioner does not know whether Mackay was in Europe 
once or twice during the time she claims to have been his wife. 
This is certainly remarkable. It is such an event in the life 
of an ordinary wife (her husband being away in Europe) that 
she could not forget it. When decedent returned to the west, 
after being away something like thirty months — two and a 
half years — in place of coming here to San Francisco he went 
directly from New York to his mine in Washington and re- 
mained there a long time before coming down here — an im- 
probable thing for a man to have done if he had a wife in 
San Francisco. She does not know where he was in 1886; 
could not tell if he was away one or two years ; did not know 
in what year he went to Europe; did not know where he was 



332 Coffey's Probate Decisions, Vol. 3. 

in 1887; from Europe he went to British Columbia, and was 
there six months; did not know whether he remained here a 
week or more when he first returned from Europe ; he said he 
was in Europe two years and six months; petitioner said she 
would have starved M'hilst he was away if it had not been for 
her friends. She says she produced all the letters she ever re- 
ceived from him. None came from Europe. Considering that 
he was two and one-half years without writing and that her 
friends had to assist her, his conduct seems singular if he was 
her husband. She did not know how many times he was at 
home during the first five years they lived on Polk street, nor 
that he was there as much as two months during that whole 
period. She says he never went where there were black 
women. He was always first class. This contradicts all her 
evidence about his intimacy with negroes on Polk street. 

As between ]\Ir. Mitchell and petitioner, there is no mistake 
about what Mr. Mitchell said. Counsel for petitioner, in his 
oral argument, called the court's attention to what he styled 
the improbability of her having made any statement to Mr. 
Mitchell that she was not married, or did not claim to be the 
wife of Mr. Mackay, because he did not ask her any question 
that called for such an answer. That is exactly what he did 
ask her, what her claim was; and she claimed he was the 
father of the child she was going to have, but she did not 
claim that she was his widow. Her statement was called for 
by the question Mr. Mitchell asked. Counsel also commented 
on the improbability of any such conversation having occurred 
because Mr. Mitchell did not put anything on the subject in 
the proposed contract. He would not put anything in the 
contract on the subject because she made no such claim. If 
she had claimed at that time that she was the widow of P. N. 
Mackay, then, as a matter of course, in drawing up any paper 
for her to sign as a disclaimer about the paternity of the child, 
a disclaimer about being the widow would have been inserted. 
There would have been no propriety in putting such a dis- 
claimer in a paper for her to sign when she had never before, 
and did not then, assert any such claim. During all the years- 
she now claims to have been known as Mrs. Mackay her name 
appeared in the directory every year as Hattie Schenck. 



Estate op Mackay. 333 

Whenever sTie had an account it was in the name of Hattie 
Schenck. Instance : Lebenbaum & Co., where she had the name 
changed to Mrs. Mackay after his death. In the directory, 
after Mr. ]\Iackay's death, she puts her name in as Mackay, 
but before that time it was Hattie Schenck. It is remarkable, 
if she was known as Mrs. Mackay as she claims, that she would 
give a misstatement of her name as "Schenck" to the direc- 
tory canvasser-s in 1886, 1887, 1888, 1889, 1890, 1891, 1892 and 
1893. 

In 1886 her name appears : H. Schenck, lodgings, 1625 Polk. 

In 1887 her name appears: Mrs. Harriet Schenck, 1625 
Polk. 

In 1888 her name appears: Mrs. Harriet Schenck, 1625 
Polk. 

In 1889 her name appears: H. Schenck, dressmaker, 1625 
Polk. 

In 1890 her name appears: Hattie Schenck, 1625 Polk. 

In 1891 her name appears: H. Schenck, dressmaker, 1625 
Polk. 

In 1892 her name appears: Harriet Schenck, 1625 Polk. 

In 1893 her name appears: Harriet Schenck, 1625 Polk. 

That she would have so described herself in a public direc- 
tory as Hattie Schenck, when all the time she was known as 
Mrs. Mackay and was calling herself by that name, is not 
credible. She says everybody on Polk street knew her as Mrs. 
Mackay. Mr. Horabin evidently never had heard of her as 
Mrs. Mackay. According to his evidence, he thought Mr. 
Mackay was Mr. Schenck. If this witness is to be believed, 
he entirely contradicted her evidence about her being known 
as Mackay on Polk street. Here was a man who had more 
dealings with her than any other person, and yet he had never 
heard of Mackay. Her account then w'as in the name of 
Schenck, and he thought the man who lived in the same house 
where she did (P. N. Mackay) was named Schenck. 

These tradespeople who testify that small parcels were 
bought by her and sent "C. 0. D." to Mrs. Mackay cannot 
find a scrap of paper or a book of any kind whatever to show 
any such thing. Wherever we find her accounts at Leben- 
baum 's, or at Mr. Curtaz's, the piano dealer, or anywhere else 



334 Coffey's Probate Decisions, Vol. 3. 

where a series of payments were made by her and credit 
given to her, there we uniformly find her name "Hattie 
Schenck." 

We now come to the evidence of Miss Maud Mackay, daugh- 
ter of Duncan C. Mackay, executor. There is a conflict be- 
tween her evidence and that of the two colored women 
(petitioner and Mrs. Morris) with regard to what happened 
when she was at the house (1625 Polk street) after her uncle's 
death. The claimant said that she opened the trunks, or one 
of the trunks, when Miss Maud INIackay was there. This 
statement Miss Maud Mackay denies positively. They say she 
was there and remained a long time the Sunday night after 
her uncle's body was removed. This she denies emphatically 
and says she was at home and did not go out that night. Her 
brothers and her mother corroborate her in that particular. 

Counsel for petitioner adverts to the fact that Thomas Mac- 
kay did not hear the conversation between his sister and Mrs. 
Morris. Miss Maud Mackay asked her if she was the house- 
keeper, and she said, "No, I am the cook, and the other," 
pointing to Hattie, "is the housekeeper." 

Two persons being present where sound occurs, one hears it 
and the other may not. The fact that Thomas Mackay did 
not hear that conversation, although he was present and might 
have heard it, in no way contradicts his sister's evidence. 
Such matters are discussed in works on evidence and in de- 
cided cases; especially in criminal and damage cases. For in- 
stance, two persons being present, one will hear a clock strike 
at a particular time; the other will say, "It did not strike at 
that time; I was in the room and knew it did not strike." 
There is no conflict in such evidence when properly con- 
sidered ; it only shows that one heard the sound, the other did 
not. Take the common illustration of accidents happening on 
steam railroads, near crossings, when somebody is run over 
and injured. The engineer testifies that he rang the bell, ac- 
cording to the regulations of the service, before thej^ ap- 
proached the crossing. One passenger will sw'ear positively 
that he knows he did ring it, he heard him ring it ; the other, 
equally positive, will say he did not ; the fact being the latter 
did not hear it. They may be equally honest. One man's 



Estate of Mackay. 335 

mind is attracted to the sound and it makes an impression on 
him, the other's mind may be occupied in another direction 
and the sound not attract his attention. Miss Maud Mackay 
talked to Mrs. Morris and had her attention directed to her 
particularly. The attention of Thomas was called away, and 
he did not hear what his sister said. There is no real conflict 
between Maud and her brother Thomas. She is corroborated 
by her brothers Eobert and George, and by her mother, as to 
the fact that she was at home that Sunday night, and did not 
go out. Had she done so her family certainly would have 
known the fact. It was no ordinary occasion ; P. N. Mackay 
was in his coffin and the funeral was appointed for the next 
day. There is all this evidence of these witnesses, six on one 
side, including Mr. Mitchell, and petitioner alone on the other. 
There is a square conflict. The petitioner does not pretend to 
know when her husband was away from her, or when he re- 
turned, or during what intervals or how long he was absent. 

Regarding the time they lived at Fern avenue, a remarkable 
discrepancy of opinion exists which argues and illustrates the 
uncertainty of the memory of witnesses about petitioner's af- 
fairs and transactions. The landlady, Mrs. Pouyal, fixes it at 
one year, the claimant at eight months, whereas the exact 
time was four months. 

Petitioner testified that Mr. Mackay gave her a piano, and 
that it cost between four and five hundred dollars. The evi- 
dence showed that the piano was sold to Hattie Schenck on 
the installment plan and that the purchase price was $200, 
and that she, not Mackay, paid for it. The clerk who collected 
from her on Polk street knew her only as Hattie Schenck. 
That piano had been rented by her for some years at a 
monthly rental of $5, and the aggregate amount of rent before 
the sale was $200 or upwards. It was subsequently sold to 
her for $200. 

Mrs. Amelia Moms testified that Hattie said, "This is Mr. 
Mackay, my husband," and that he made no comment, but 
bowed to her very nicely and asked her whether she would 
stay, and she told him she would. She says the contract was to 
pay her $3 per week. Then this Mrs. Morris says that when 
she and Hattie were both there Mr. Mackay would answer the 



336 Coffey's Pkobate Decisions, Vol. 3. 

bell. It is improtable that he would be in the habit of at- 
tending the door bell when there were two colored women 
there, one of them, at least, confessedly a hired servant. 

Petitioner testified herself, and called other witnesses to 
prove, that she was generally called and known as Mrs. Mac- 
kay. This was done, apparently, upon the theory that it was 
necessary for her to show that she was reputed to be the wife of 
P. N. Mackay ; but when confronted with the fact that she had 
habitually caused her name to be published in the directory 
as Hattie Schenck, and used that name in her accounts at 
stores and other places, she undertakes to explain the circum- 
stance by saying there was an agreement between her and Mr. 
Mackay at the time of the reputed marriage that she should 
go by the name of Mrs. Schenck. The court cannot accept 
such an explanation. She was not generally known as Mrs. 
Mackay, and there having been no marriage, nor contract of 
marriage, there was no agreement between her and Mr. Mac- 
kay that she should be known as and use the name of Mrs. 
Schenck. 

Duncan C. Mackay and his wife both testified that their re- 
lations with P. N. Mackay were of the most intimate and 
friendly character, and that all their children were much at- 
tached to their uncle and he to them, Mrs. Mackay says that 
her husband and her boys went to see Pat almost every day 
when he and they were in the city. They took his mail to 
him regularly. She recollects when he returned from New 
York in 1884. He lived at their house from March 15th to 
September of that year.' He was away part of that time, but 
when in the city he was at home every night — was never out 
later than 9 o'clock. His habit was to go out for a walk and 
smoke after dinner for half an hour and then return and re- 
main home the rest of the evening. Never heard or knew 
anything about his visiting Stevenson street during that time. 
She recollects when he moved to Polk street, and heard that 
he took rooms over a florist's. That he lived there until about 
December 9, 1884, when he removed to 1625 Polk street, and 
remained until his death. 

Duncan C Mackay and his family lived within five blocks 
of 1625 Polk street during all the time P. N. Mackay resided 



Estate of Mackay. 337 

there. She (Mrs. Mackay) had heard he had a black house- 
keeper. Sometimes he spoke of his housekeeper, but he was a 
very quiet man, who seldom spoke of his domestic affairs. 
About a year before his death he took his meals at her house 
for two weeks; he said his housekeeper had the rheumatism 
and could not cook for him. 

Neither Mrs. Mackay nor her daughter visited him at his 
apartments, because it was unnecessary, as he visited their 
house daily, when here, and when well enough. He was away 
most of the time between 1884 and until within a year and a 
half before his death. 

Witness never heard an intimation that P. N. Mackay was 
married, nor of any such pretense by petitioner, until the pres- 
ent counsel was employed in this case. After P. N, Mackay 's 
death witness was told that petitioner had made some claim 
that he was the father of her child. Witness never heard of 
the birth of a child in his apartments in 1885. 

Petitioner testifies she did not know where he lived in June 
nor July, 1884, nor from March to August of that year, yet 
she testifies that he visited her every night. Would it not 
be remarkable that a husband and wife should live in the same 
city, see each other daily, and yet the wife not know where her 
husband lived? The evidence shows that petitioner lived on 
Stevenson street from March to September, 1884. Mrs. Mac- 
kay said her husband and son Robert went, after the death of 
P. N. Mackay, to obtain his effects. George told her he saw 
Hattie, after his uncle's death, take papers out of his drawer 
and tear them up. Witness says she was present when her 
brother in law's trunks were opened, and is positive there were ■ 
no letters from Hattie to him among his papers. 

Petitioner admits that all the money she ever received from 
P. N. Mackay whilst living at 1625 Polk street came through 
Lebenbaum & Co. The amount was uniformly $60 per month, 
as appears from the books of that firm and also from the 
checks and drafts of the deceased, and the evidence of Bibo, 
who says that "the monthly remittance of $60 used to come to 
be turned over to her." Out of this it appears she paid the 

Prob. Dec, Vol. Ill — 22 



338 Coffey's Probate Decisions, Vol, 3. 

rent of the flat and other bills. Upon this point there is no 
dispute. 

It appears from ]\Ir. Pomeroy's evidence that when P. N. 
Mackay gave him directions for making his will, he said that 
he wished to leave a sum of money sufficient to produce an in- 
come of $60 per month during her life. He first suggested 
$10,000, but upon being told by Mr. Pomeroy it would be dif- 
ficult to so invest $10,000 as to yield regularly $60 per month, 
lie said "Very well, make it $15,000." He gave the direc- 
tion, "Hattie Schenck, housekeeper," and also gave her ad- 
dress. The income provided was for her life only. "During 
her life, and upon her death to divide and distribute the trust 
estate to and among my brothers and sisters .... share and 
share alike." The rest of his will was in all respects the 
same as a will he had previously executed. The first will was 
destroyed after the second was executed. His plan was to pro- 
vide for her after his death and during her life. About the 
same time he executed the bill of sale to her of the furniture 
in the flat at 1625 Polk street. Shortly prior to this time he 
deeded his property in Washington to the Skagit Cumberland 
Coal Company. The will, bill of sale of the furniture, and 
the deed (in acknowledging which he recites that he was a 
I single man) were all parts of a general plan in settling his 
business affairs in a way he wished them to be administered 
after his death. It all proceeded upon the basis of his being 
an unmarried man, and that so far as his housekeeper, Hattie 
Schenck, was concerned, she should be provided for during her 
life. 

The importance to be attached to these transactions is to 
show conclusively that he was an unmarried man when he 
died, and that Hattie Schenck, the petitioner here, was his 
servant and housekeeper, and nothing more. Who could know 
so well as P. N. Mackay himself? The evidence of Duncan C. 
Mackay is important. It contradicts the petitioner in man}'- 
ways and shows conclusively that her evidence must neces- 
sarily be false in its most material aspects; that she was his 
brother's housekeeper and servant only; and that all her pre- 
tensions that she was his wite — or more to him than a ser- 
vant — are false. It is unnecessary to repeat his evidence here. 



Estate of IMackay. 339 

He had been his brother's attorney in fact since 1862, and up 
to his death. Their relations were of the most intimate char- 
acter. Duncan C. Mackay visited his brother P. N. Mackay 
very often at his house — or flat — No. 1625 Polk street. He 
always knew petitioner as his servant and housekeeper and 
nothing more, and his brother spoke to him of her as such. 
He was present when P. N. Mackay gave instructions for the 
preparation and execution of that document. The bill of sale 
of the furniture was inclosed in the same envelope with the 
will. It was a part of Mr. IMackay's plan for settling all his 
affairs preparatory for leaving the country permanently, or 
in the event of his death. The bill of sale was to be handed 
to her upon the happening of either event. He was away 
from San Francisco after he returned from New York as much 
as forty-two or forty-three months during a period of four 
years. During all that time he maintained his flat at 1625 
Polk street. Ten daj's before P. N. Mackay 's death he spoke 
of petitioner as his "faithful housekeeper." "When the ex- 
ecutors took possession of and examined deceased 's trunks and 
papers they did not find — and witness never saw — a single 
word or line ever written by petitioner to P. N. Mackay, and 
he never put her name to paper in writing to witness. The 
deceased always called her his servant or housekeeper, and 
when witness visited the house 1625 Polk street, as he did verv 
often, she conducted herself in all respects as a servant should, 
and he never suspected anything to the contrary. 

Counsel for petitioner argue that the child exhibited in 
court is the "issue of the bodies of petitioner and deceased," 
and claims : 

1. It is legitimate — born in lawful wedlock. 

2. If not born in lawful wedlock, it is "the result of the 
relations between petitioner and deceased in California, a mar- 
riage prohibited by law, and section 1387, Civil Code, pro- 
vides: 'The issue of all marriages null in law .... is legiti- 
mate.' " 

3. That if the child is illegitimate, it was adopted by the 
deceased, under sections 230 and 29, Civil Code. 

It is contended that if any of these three propositions 
be true, this application for a family allowance should be 



340 Coffey's Probate Decisions, Vol. 3. 

granted. Of course, if a marriage and cohabitation had been 
proved, the child would be presumed to be legitimate. But 
there was no marriage, and, consequently, no such presump- 
tion arises. "What is the evidence as to paternity? "We have 
the petitioner's statement, but can she be believed? The 
other witnesses do not pretend that Mr, Mackay ever in terms 
acknowledged that he knew petitioner was enceinte by him. 

The evidence about the baby clothes and that he knew she 
was going to have a child comes from suspicious sources, is 
unreliable and improbable, and, at most, circumstantial. 

It is not disputed that Duncan C. Mackay and his sons, par- 
ticularly Thomas and George, were in the habit of visiting the 
deceased very often during the latter part of his life, and 
they frequently saw the petitioner there in her capacity of 
servant. That none of them noticed that she was pregnant ' 
is practically admitted by her when she deemed it necessary 
to tell the executors that she was with child by the deceased. 
Where so many suspicious circumstances surround a case and 
where so much untrustworthy evidence has been introduced, 
as in this case, the court will look with suspicion upon all the 
evidence, and require strict and positive proof upon every 
point in issue. 

If P. N. Mackay was aware that petitioner was about to 
bear a child to him, and he desired to recognize it, why did 
he not make provision for it? He had disposed of his w^hole 
estate by will and knew that he was old and infirm. He had 
provided for petitioner under the name of "Hattie Schenck, 
housekeeper." 

The fact that he died without making provision for any 
prospective child of hers ought to outweigh all evidence in- 
troduced tending to prove that he ever admitted or believed 
that he w^as its father — and this even if he had know^n of her 
pregnancy. There is no written evidence that he ever ad- 
mitted he was the husband of petitioner, or the father of any 
child born to her in his lifetime, or with which she was preg- 
nant at the time of his death. 

The law applicable to the alleged marriage in this case is 
simple: "All marriages of white persons with negroes or mu- 
lattoes are illegal and void": Civ. Code, sec. 60. The law of 



Estate of Mackay. 341 

Colorado is presumed to be the same as that of California: 
Norris v. Harris, 15 Cal. 252; Marsters v. Lash, 61 Cal. 624; 
Shumway v. Leakey, 67 Cal. 460, 8 Pac. 12. 

Counsel for petitioner says: "The evidence shows substan- 
tially that two marriage contracts were made and entered 
into — the first, in the state of Colorado ; the second, in the 
state of New York." Neither of these alleged contracts was 
ever made. The contract alleged to have been made in New 
York is the only one pleaded. 

The law of Colorado being the same as that of California, 
the so-called Denver contract cuts no figure. Petitioner in 
her pleading relies solely upon the alleged New York contract. 

"All marriages contracted without this state, which would 
be valid by the laws of the country in which the same were 
contracted, are valid in this state": Civ. Code, sec. 63. 

The question here is. Did she, Hattie Schenck, ever con- 
tract marriage with deceased in the state of New York ? She 
swears in her petition that she and P. N. Mackay lived and 
cohabited together as Mr. and Mrs. P. N. Mackay in the city 
and state of New York from September 5, 1880, until March 
1, 1884. In her evidence she says from the summer or fall 
of 1881 to March, 1884. Her evidence on this subject must 
be false, otherwise she certainly would have been able to have 
found some one who had knoAvn her there. 

Her failure in this particular is not cured by any evidence 
as to the manner of her life in California. 

In the case of Leach v. Pierce, 93 Cal. 614, 29 Pac. 235, 
and other cases of like import, there was no dispute as to the 
fact of marriage or legitimacy of children. That questions 
of such grave import can be disposed of ex parte, or that is- 
sues made by answer denying allegations of widowhood and 
legitimacy of children are not to be tried with reference to 
the pleadings like other issues of fact, has never been decided 
by our courts. 

Sections 1464, 1465 and 1466, Code of Civil Procedure, 
manifestly proceed upon the theory of confessed widows and 
legitimate children. No marriage "null in law" is sought to 
be established here, and hence section 1387, Civil Code, has 
no application. The petitioner relies upon her alleged mar- 
riage in New York. There is no allegation or evidence of any 



342 Coffey's Probate Decisions, Vol. 3. 

contract of marriage in California "followed by a solemniza- 
tion or by a mutual assumption of marital rights, duties or 
obligations." These parties were either married before they 
arrived here in March, 1884, or they were never married. 
They were never married, nor did they ever contract to be- 
come presently husband and wife. 

The claim that this child was adopted by deceased in his 
lifetime, and before the child was born, cannot be maintained. 
In what way did the deceased publicly acknowledge it as his 
own ? When and where was any such acknowledgment made ? 
In what way could he or did he treat an unborn child as if 
it were legitimate? 

There is no written evidence and no evidence of any wit- 
ness that deceased ever in any way spoke of adopting this 
child, or expressed a desire that it should inherit or receive 
any part of his estate or derive any benefit from it. It does 
appear that he had disposed of his whole estate by will with- 
out making mention of any child to be born to him by peti- 
tioner, or any other person. Is it to be believed that if he 
had publicly acknowledged the paternity of this unborn in- 
fant he would not have left some sign, some word, to his rela- 
tives or friends indicating his purpose? 

The evidence of petitioner's lady friends, that he was about 
looking on and making comments about baby clothes, while 
they were being made, is uncertain and unsatisfactory in its 
character, and is contradicted by one of her most intimate 
friends, Mrs. Murphy. She was the friend of many visits, 
and, notwithstanding her apparent desire to testify in favor 
of petitioner, she says that Mr. Mackay was not present when 
the baby clothes were being made. j 

The application of petitioner should be denied because: ' 

1. There is no widow nor child, legitimate or adopted, of 
deceased to whom a family allowance can be made in this 
proceeding; 2. The child of petitioner is not the issue of a 
marriage null in law within the meaning of section 1387, Civil 
Code, nor any other statute or law of the state of California ; 
3. The child in question is not the illegitimate child of P. N. 
Mackay, deceased, and never was adopted or recognized by 
him in any public way or at all as his child. 



Estate of Clancy. 343 

The rule as given by the Code of Civil Procedure, section 
2061, is that the court, sitting as a jury, is not bound to de- 
cide in conformity with the declarations of any number of 
witnesses which do not produce conviction, against a less num- 
ber or against a presumption or other evidence satisfying the 
mind ; and the same section of the code also prescribes that 
in civil cases the affirmative of the issue must be proved, and 
when the evidence is contradictory, the decision must be made 
according to the preponderance of evidence. 

Application denied. 



The Principal Caso was before the supreme court in 107 Cal. 303, 
'10 Pac. 558. 

Contract or Common-law Marriages are considered at length in Es- 
tate of James, ante, p. 130, and extended note. 

Marriages Between White and Colored Persons are considered, as 
to their validity, in the note to State v. Lowell, 79 Am. St. Eep. 382. 



Estate of PATRICK CLANCY, Deceased. 

[No. 4,750; decided May 23, 1894.] 

Will. — In Construing a Will the Whole Instrument must be consid- 
ered in order to arrive at the intention of the testator. 

Will. — Positive Provisions in a Will are not to he Overcome by 

inference. 

WiU. — In Order to Reach the Obvious General Intent of a testator, 
implications may supply verbal omissions. 

Will. — A Conditional Devise Necessarily Implies that the devisee 
shall be living at the time of the happening of the condition. 

Will — Vesting of Gift. — Testamentary Dispositions, including de- 
vises and bequests to a person on attaining majority, are presumed 
to vest at the testator's death, but this presumption may be rebutted. 

Will. — A Conditional Disposition is One which depends upon the 
occurrence of some uncertain event, by which it is either to take 
effect or be defeated. 

Will. — A Condition Precedent in a Will is One which is required 
to be fulfilled before a particular disposition takes effect. 

Will. — A Legacy is Contingent or Vested, just as the contingency, 
if any, is annexed to the gift or to the payment of it. 



344 Coffey's Probate Decisions, Yol. 3. 

Will. — The Question of Vesting or not Vesting is to be determined 
by the fact whether the gift is immediate and the time of payment 
or of enjoyment is only postponed, or whether the gift is a future 
and contingent one depending on the happening of a particular event. 
If futurity is annexed to the substance of the gift, the vesting is 
suspended. The point that determines the vesting is not whether 
time is annexed to the gift, but whether it is annexed to the sub- 
stance of the gift as a condition precedent. 

Will — Contingent Devise. — Where one devised to his son and four 
daughters, share and share alike, certain real property, to be dis- 
tributed to them when the youngest child should become of age, unless 
the testator's wife should before that time die or marry, in either of 
which events distribution to take place as soon as possible; the 
will further provided that if the son should die before distribution, 
the share to which he would have been entitled should go to testa- 
tor's sister; there was no provision that the share of the sister, in 
case of her deaith before distribution, should go to her heirs; the 
son and the sister died before distribution could be had under the 
will; upon application by the heirs of the sister for the share thus 
conditionally devised to her, it was held that such devise was con- 
tingent upon the death of the son before the time for distribution 
and upon the survival of the sister until after such time, and that 
both the son and sister having died before such time, the sister's 
contingent interest terminated with her death, and her heirs are not 
entitled to take anything under the will. 

Will — Trust — Precatory Words. — Where one devised an interest in 
certain property to his son, the same to be distributed to him upon 
the happening of a particular event, and also expressed a desire 
that in the event of distribution to the son, the testator's sister 
should take the same in trust for the son, it was held that the 
desire thus expressed was merely precatory, and that the devise to 
the son being direct, the will created no trust in the sister. 

Patrick Clancy died on October 28, 1885, and tlie will set 
forth in the opinion below was admitted to probate on No- 
vember 30, 1885. 

On March 27, 1894, Mary T., John J. and Edward Feeney 
filed a petition for distribution to them of the share of the 
above-named estate conditionally devised to Bridget Feeney, 
their mother. The latter died on October 20, 1889. Thomas 
Clancy, the son of the testator, died on May 15, 1890, and 
before the youngest child of the testator became of age. The 
testator's widow did not remarry, and died on April 18, 1894. 
The youngest child of the testator became of age before the 
filing of the petition by the children of Bridget Feeney. 



Estate op Clancy. ,345 

Leonard S. Clark, for the petitioners. 

Sawyer & Burnett, for the testator's daughters, opposed. 

COFFEY, J. The following Is a copy of the will of the 
testator : 

"I, P. Clancy, a resident of the City and County of San 
Francisco, residing with my family at the corner of Califor- 
nia and Walnut streets, of the age of about 50 years and of 
sound mind and memory, do make this my last will and testa- 
ment. 

"I have two children now living with me, by a former 
wife — Thomas Clancy, aged about 25 years, and Catherine, 
aged about 23 years; and I have also, by my present wife 
Henrietta, three children: Henrietta, Julia and Jessie. 

"I give and bequeath to my wife all my personal estate of 
every kind and character and wheresoever situated. The real 
property where I reside with my family at the corner of Cali- 
fornia and Walnut streets is community property, it having 
been acquired by myself and my said wife during our mar- 
riage, but the real property on Leavenworth street, between 
Jackson and Pacific streets, was acquired by me before my 
said marriage and is my separate property. I desire my said 
wife to have her share, that is to say, the one-half of said 
community property, and I therefore make no devise fb her 
of any real property, and I give, bequeath and devise to my 
said five children, share and share alike, subject to the condi- 
tions hereinafter mentioned, the whole of my community in- 
terest in the California street property and the whole of the 
Leavenworth street property. 

"There shall be no distribution of said property until my 
youngest living child shall become of age, unless my said wife 
should before that time die or marry, in either of which 
events I wish distribution to take place as soon as possible. 
If either of my said daughters should die before said dis- 
tribution, then the share to which such daughter would be 
entitled shall be divided equally among the remainder of all 
my living children. I desire and direct that my said wife 
shall manage the whole of said property, pay all taxes and all 



346 Coffey's Probate Decisions, Vol. 3. 

other necessary expenses for repairs thereon, and pay off the 
balance of the mortgage thereon, which is now about $300, 
and to have and use all the rents, issues and profits thereof 
for her support and for the support and maintenance of all 
my said children. My son Thomas being of feeble intellect 
and scarcely competent to take care of himself, I especially 
enjoin upon my said wife to keep him, if possible, with the 
family and to provide for him as he shall need, and at all 
events to provide for his maintenance. 

"If my said son Thomas should die before the distribution 
of said estate, then I hereby give, bequeath and devise the 
share to which said Thomas would be entitled to my sister, 
Bridget Feeney, widow, now residing at 1027 Vallejo street, 
in said city and county; and I hereby appoint and nominate 
said Bridget Feeney guardian of my said son Thomas, and 
in the event of a distribution to him, said Thomas, of his share 
of my said estate, I desire that said Bridget shall take and 
hold the same in trust for him, without bonds, for his bene- 
fit, and at his death that she shall have the residue thereof. 

"I hereby appoint my said wife Henrietta and my said 
daughter Catherine exeeutrices of this my last will and tes- 
tament, -with full power to manage the said estate, collect 
rents, make leases and do all necessary things for its proper 
management, and hereby provide that neither of my said 
exeeutrices shall be required to give any bonds for the per- 
formance of any duty or trust imposed upon them hereby. 

"In witness whereof I have hereunto set my hand and seal, 
the 19th day of September, A. D. 18S5. 

"P. CLANCY. [Seal] 

"The above instrument was at the date thereof signed, 
sealed, published and declared by the said P. Clancy as and 
for his last will and testament in presence of us, M'ho at his 
request and in his presence and in the presence of each other 
have subscribed our names as witnesses thereto. 

"JOHN MOLLOY, 
"No. 1623 Clay St., San Francisco. 
"LEONARD S. CLARK, 
"No. 2011 Howard St., San Francisco." 



Estate op Clancy. 347 

The will devised and bequeathed to the five children of the 
testator certain property, "subject to the conditions herein- 
after mentioned": 

1. There shall be no distribution until the youngest child 
shall have reached the age of majority, or the widow shall die 
or remarry. 

2. If either daughter shall die before distribution, the share 
that Avould have gone to such daughter shall go to the other 
living children. 

3. The widow is to manage the property, etc., until dis- 
tribution. 

4. If Thomas should die before the distribution of the es- 
tate, then the testator gives to Bridget Feeney the share to 
which Thomas would be entitled. 

5. In the event of a distribution to Thomas, of his share, 
the testator desires that "said Bridget shall take and hold 
the same in trust for him, without bonds, for his benefit, and 
at his death that she shall have the residue thereof." 

It is to be noted that the will was drawn by a lawyer, and 
that no express provision is made that the share of Bridget 
Feeney, in case of her death before distribution, shall go to 
her heirs. 

The omission of the testator to make such provision is a 
very significant fact, because if he had desired that the heirs 
of Bridget should take their mother's share he would have 
said so in the will. He may have desired to provide for his 
sister, as she was a widow; but it is scarcely probable he 
would take away property from his own daughter to give to 
his nieces and nephews. Such an intent should clearly ap- 
pear on the face of the will. 

Bridget Feeney died in October, 1889, and Thomas died 
in May, 1890 — both events having taken place before the dis- 
tribution could be had under the will. 

The question for solution is whether Bridget Feeney 's heirs 
take the share that would have gone to Thomas, had he lived ; 
or whether Thomas' heirs take it; or whether, as to that in- 
terest, intestacy occurs. 

The court cannot agree with counsel for petitioners, that 
the will created a trust in Bridget. The devise to Thomas 



348 Coffey's Probate Decisions, Vol. 3. 

is direct — subject to the "conditions" in the will. The will 
nowhere, in direct terms, devises the property in trust to 
Bridget. The only provision in that regard is where it is 
provided "that in the event of a distribution to him (Thomas) 
of his share of my estate, I desire that said Bridget shall take 
and hold the same in trust for him." The will says, "I give, 
bequeath and devise to my said five children" (of whom 
Thomas was one) ; and then says in the event of a distribu- 
tion to him of his share, the testator desires Bridget shall 
take and hold the same in trust, etc. If the will had devised 
the interest to Bridget, in trust for the uses and purposes 
mentioned, then a trust would have been created ; but the will 
does not do so. The will makes a devise to Thomas, and pro- 
vides for a distribution direct to him of his share. 

Positive dispositions in a will are not to be overcome by 
inference. The "desire" is merely precatory. 

It follows, then, that the interest of Thomas (whatever it 
might be) was one which he could dispose of, and would de- 
scend to his heirs. 

The whole will must be considered, to get at the intention 
of the testator. An examination of the whole instrument will 
show that the devise to Mrs. Feeney was to take effect only 
in case she survived Thomas. "If my son Thomas should die 
before the distribution of my estate, I give, bequeath and de- 
vise the share to which said Thomas would be entitled to my 
sister, Bridget Feeney." 

As no man would make a devise to a dead person, her sur- 
vival of Thomas is necessarily implied. Further on the will 
provides for her appointment as guardian of Thomas. Can 
a man appoint a guardian who is dead ? And as to the trust, 
w^hich it is contended, was created by the will, how could 
she take in trust, unless alive? 

The testator clearly meant that Bridget, to take, should 
be alive when the contingency on which she was to take arose. 
The court will supply the words, "if then living," in the 
proper place. 

"In order to reach the obvious general intent of the tes- 
tator, implications may supply verbal omissions": 1 Redfield 
on. Wills, star p. 465, par. 17. 



Estate of Clancy. 349 

If the devise was to take effect only in case she survived, 
there was a condition precedent, which, not having been ful- 
filled, no estate vested: Civ. Code, see. 1347. 

The devise to Mrs. Feeney was a conditional disposition. 

"A conditional disposition is one which depends upon the 
occurrence of some uncertain event, by which it is either to 
take effect or be defeated": Civ. Code, sec. 1345. 

The first ''uncertain event" in the case at bar is the death 
of Thomas before distribution. It is evident that such an 
event was uncertain. The second was the "distribution to 
Thomas of his share of my estate." Thomas might, or might 
not, have lived to take distribution ; and, hence, this event was 
uncertain. The will itself shows that, because it says **in the 
event of a distribution." 

It will be borne in mind that Mrs. Clancy had an estate in » 
the property until distribution — that is, she was to receive 
the rents and profits. If Thomas survived, he was to have 
one-fifth ; and, if he died before distribution, the share he 
would be entitled to goes to Mrs. Feeney. 

The leading inquiry upon which the question of vesting or 
not vesting turns is whether the gift is immediate, and the 
time of payment or of enjoyment only postponed; or is future 
and contingent, depending on the beneficiary arriving at age, 
or surviving some other person, or the like. If futurity is 
annexed to the substance of the gfft, the vesting is suspended : 
Everitt v. Everitt, 29 N. Y. 75. 

A legacy is contingent or vested, just as the contingency, 
if any, is annexed to the gift, or to the payment of it : Majors 
V. Majors, 32 Gratt. 819. 

The point that determines the vesting is not whether time 
is annexed to the gift, but whether it is annexed to the sub- 
stance of the gift as a condition precedent. If the arrival 
of the time is a condition without which the testator would 
not have made the bequest, as in the ease of marriage or 
puberty, then in the very nature of things the time is an- 
nexed to the substance of the gift: MeClure's Appeal, 72 
Pa. 414. 

But where the legacy is not given until a certain future 
time, it does not vest, and, if the legatee dies before, it is 



350 Coffey's Probate Decisions, Vol. 3. 

lost: Eeed's Appeal, 118 Pa. 220, 4 Am. St. Rep. 588, 11 

Atl. 787. 

When the time is annexed to the gift itself, and not to 
payment only, as a legacy to a legatee at twenty-one, or "if 
or "when" he attains that age, the legacy does not vest. His 
attaining that age is a condition precedent, and if he dies 
before attaining that age the legacy never vests: Gifford v. 
Thorn, 9 N. J. Eq. 702; Clayton v. Somers, 27 N. J. Eq. 230; 
Snow V. Snow, 49 Me. 159 ; Travis v. Morrison, 28 Ala. 494. 

Now, this will provides, "if my son Thomas should die 
before distribution" the share to which he would be entitled 
shall go to Mrs. Feeney. 

The death of Thomas was the event which was "annexed 
to the gift itself," as without it the testator could not have 
made the gift to her. And as she died before the time, the 
gift was lost. 

But aside from authority — if we look at the will — how 
could INIrs. Feeney have an estate that was vested while 
Thomas was alive? She had only a contingent interest, 
which would take effect on his death, and, as she died be- 
fore him, her interest ceased with her death. 

Again, if either had a vested interest Thomas was that 
one. If his interest was vested, then hers was not; because 
there cannot be two vested interests at the same time in the 
same property. 

Section 695 of the Civil Code says, "a future interest is 
contingent whilst the person in whom, or the event upon 
which, it is limited to take effect remains uncertain." 

According to the will, if Thomas died before distribution, 
Mrs. Feeney was to take. The above-cited section provides 
that whilst the event on which the future interest is limited 
remains uncertain the interest is contingent ; and hence, whilst 
Thomas was alive, and his death before distribution was un- 
certain, Mrs. Feeney 's future interest was contingent. As 
she died before the death of Thomas, her interest, being con- 
tingent, died with her. 

As stated, Thomas died before distribution was made. His 
being alive and distribution made to him were conditions pre- 
cedent to taking under the provisions of the will which pro- 
vided for that event. 



Estate op Clancy. 351 

"What has been said on the other provisions of the. will ap- 
pliCvS equally to the one under consideration. Testamentary 
dispositions are presumed to vest at the testator's decease: 
Civ. Code, sec. 1341. But this is only a presumption, which 
may be rebutted or overcome by the will or by law, 

Thomas Clancy died intestate, and whatever interest he had 
went to his sisters, who were his heirs at law. 

If Thomas had died before the testator, and j\Irs. Feeney 
had died before Thomas, certainly her heirs could not have 
come in. If she had lived after Thomas, then section 1344, 
Civil Code, cited by counsel for petitioners, might have been 
in point. 

In the Goldtree case, 79 Cal. 613, 22 Pac. 50, the devise 
was in trust to pay the income to certain persons named, 
and on their death the corpus of the estate was to go to cer- 
tain children when they arrived at majority or married. Of 
course, the corpus of the estate went to the children, but as 
none of them died no such question as is here presented arose. 

In Re Reinhardt, 74 Cal. 365, 16 Pac. 13, the supreme 
court held, affirming the court below (Department Nine, Pro- 
bate, San Francisco), that the husband took a determinable 
life estate under the will, and that, as to the rest of the es- 
tate, the decedent died intestate. In that case th^ children 
took under the statute of descents and distributions. 

Williams v. Williams, 73 Cal. 99, 14 Pac. 394, was where 
a bequest of money was made to vest absolutely, to be paid 
at a certain time. 

In Re Williamson, 75 Cal. 317, 17 Pac. 221, the court held 
that the intention of the testator was to give Robert only 
one-half, and that as to the other half (the wife's share) there 
was intestacy; and it went "to the heirs as the law directs." 

In re Dolan, 79 Cal. 65, 21 Pac. 545, holds that under the de- 
vise in trust the beneficiary had no life estate or right of pos- 
session, but could only enforce the trust. 

The conclusion of the court is therefore fourfold : 

1. That Mrs. Feeney had only a contingent interest, and, 
as she died before the "event" on which it was to take effect, 
her devise was lost. 

2. That the testamentary disposition to her was on condi- 
tions precedent, and did not take effect. 



352 Coffey's Probate Decisions, Vol. 3. 

3. That as to Thomas' share there was intestacy. 

4, If there was no intestacy as to the share of Thomas, it 
went to his heirs (his sisters), and not to the heirs of Mrs. 
Feeney. 



Estate of MART A. DE NOON, Deceased. 

[No. 14,380; decided April 12, 1894.] 

Residence, — The Statement by a Testator in His Will that he is a 
resident of a certain place may, under some circumstances, be con- 
clusive on that question. 

Probate of Will — Residence of Testatrix. — Where a testatrix and 
her husband had their home in Sierra county, and after his death 
there she occupied the home a part of each year and during the 
remainder of the year lived in San Francisco, where she conducted a 
lodging-house, and she repeatedly stated that when she had sold her 
Sierra home she would make her residence elsewhere, but she never 
consummated this inchoate intention, and stated in her will that she 
resided in Sierra county, it was held that she remained a resident 
of Sierra county, and hence the superior court in San Francisco had 
no jurisdiction of her estate. 

Gunnison, Booth & Bartnett, for the petitioning executor. 
Ur, F. Cowdery, for the coexecutor, opposed. 

COFFEY, J. Section 1294 of the Code of Civil Procedure 
provides: 

"Wills must be proved and letters testamentary or of ad- 
ministration granted — ' 

" (1.) In the county of which the decedent was a resident 
at the time of his death, in whatever place he may have died." 

Section 52 of the Political Code provides, among other 
things, the following rules for determining the residence: 

"(1.) It is the place where one remains when not called 
elsewhere for labor or other special or temporary purpose, 
and to which he returns in seasons of repose. 

"(2.) There can be only one residence. 

" (3.) A residence cannot be lost until another is gained. 



Estate op De Noon. 353 

**(7.) The residence can be changed only by the union of 
act and intent." 

Section 1239 of the Political Code sets forth the following 
rules, among others, for determining the residence for the 
purpose of voting: 

"(1.) That place must be considered and held to be the 
residence of a person in which his habitation is fixed, and to 
which, whenever he is absent, he has the intention of return- 



ing. 



"(8.) The place where a man's family resides must be 
held to be his residence ; but if it be a place for temporary 
establishment for his family, or for transient objects, it is 
otherwise. 

"(9.) If a man have a family fixed in one place, and he 
does business in another, the former must be considered his 
place of residence; but any man having a family, and who 
has taken up his abode with the intention of remaining, and 
whose family does not so reside with him, must be regarded 
as a resident where he has so taken up his abode. 

" (10.) The mere intention to acquire a new residence with- 
out the fact of removal avails nothing; neither does the fact 
of removal without the intention." 

Residence depends upon intention as well as fact: See 
People V. Peralta, 4 Cal. 175. 

A person's residence in a place is presumptive evidence 
of domicile : Johnson v. Merchandise, 2 Paine, 601, Fed. Cas. 
No. 747; Ryal v. Kennedy, 40 N. Y. Sup. Ct. (8 Jones & S.) 
347. 

The residence which goes to constitute a domicile need not 
be long in point of time. 

"If the intention of permanently residing in a place exists, 
a residence in pursuance of that intention, however short, will 
establish a domicile": 5 Am. & Eng. Ency. of Law, p. 863; 
Jacob on Domicile, sec. 137. 

"On questions of domicile, a party's declarations in au- 
thentic acts, though admissible against him, are not conclu- 
sive, but may be disproved when not causes of the contract": 
Davis V. Binion, 5 La. Ann. 248. 

The w^ord "residence" being commonly employed in the 
sense of sojourn, a recital in a will that the testator is re- 

Prob. Dec, Vol. Ill .—23 . 



354 Coffey's Pkobate Decisions, Vol. 3. 

siding at a place named is not controlling on tlie question of 
domicile: Tucker v. Field, 5 Redf. (N. Y.) 139. 

Jacob on Domicile, section 150, says : ' ' The intention requi- 
site for a change of domicile is: (1.) Intention completely 
to abandon the former place of abode as a place of abode; 
and (2.) To settle presently and permanently in another 
place." 

''The former place of abode must be abandoned only as a 
place of abode. Therefore occasional returns, or an inten- 
tion to return for temporary purposes of business or pleasure, 
to remove one's family, or the like, will not prevent a change 
of domicile. The mere retention of landed estate at the for- 
mer place of abode is certainly not inconsistent with aban- 
donment ; but whether the retention of a place of residence — 
a furnished house or the like, in which the person may and 
probably does intend to reside occasionally — is or is not con- 
sistent with abandonment, has been the subject of some dif- 
ference of opinion": Jacob on Domicile, sec. 160. 

In Richard v. Kimball, 5 Rob. (La.) 142, the defendant, 
as ship owner, in an affidavit made for the purpose of pro- 
curing an enrollment of his vessel, describes himself as hav- 
ing his "usual place of abode or residence in New Orleans." 
In a suit brought against him as owner of said vessel, wit- 
nesses testified to his residence in Nachitoches Parish. It was 
contended on behalf of plaintiff that in all matters relating 
to the vessel his description in the affidavit was coaclusive, 
but the court held that it Avas not and that his domicile was 
in Nachitoches Parish. 

Jacob on Law of Domicile, in section 463, says that the re- 
cital of a place of residence in a deed or a will is not con- 
clusive. Speaking of such recitals, he says: "They are fre- 
quently made in both deeds and wills without any special 
importance being attached to them; and sometimes are intro- 
duced by scriveners without the attentioa of the grantor or 
testator being particularly called to them. Great caution 
should therefore be used against giving them too great weight, 
or attaching to them a meaning which was not intended. 

"Said Surrogate Bradford in a learned opinion in Isham 
V. Gibbons : The declarations of the deceased in his will and 
in the deed of manumission furnish the only evidence point- 



Estate of De Noon. 355 

ing to the acquisition of a new domicile. In a nicely bal- 
anced case they might be decisive; but great caution should 
be used in not giving them too great weight, or attaching 
to them a meaning not designated by the testator. The truth 
is, after all, that such written declarations, even of the most 
solemn character, are but facts to enable the court to discover 
the intention of the party. It is in this light alone Ihat they 
are to be received and weighed. At the best, the animus of 
the party is only to be inferred from them. In this respect 
they are like any other facts. Declarations of any kind are 
not controlling, but may be, and frequently are, overcome by 
other and more reliable indications of the true intention": 
See "Whicker v. Hume, 7 H. L. Cas. 124; Jopp v. Wood, 4 
De Gex, J. & S. 616 ; In re Steer, 3 Hurl. & N. 594 ; Attorney 
General v. Kent, 1 Hurl. & C. 12. 

In the case of Steer, cited above, the will of the testator 
contained the following declaration: "Whereas, although I 
am now in England, my residence recently was in Hamburg, 
of which, for the purpose of enabling me to trade, I was con- 
stituted a burgher, and my intention is to return there ; but 
I do not mean by such declaration of intention to renounce 
my domicile or origin as an Englishman." 
\ The court held that the deceased was domiciled in Ham- 
burg and not in England, notwithstanding this declaration in 
his will. 

In Forbes v. Forbes, Kay, 341, Vice-Chancellor Woods was 
inclined to the opinion that the retention of a residence in 
the place of former domicile was not inconsistent with the 
abandonment of a resumed domicile in favor of a third place. 

That ** residence in a place and engaging in business there 
have generally been considered as evidence of animus ma- 
nendi": Jacob on Domicile, sec. 410; Story on Conflict of 
Laws, sec. 47; Estate of Green, 1 Cof. Pro. Dec. 445. 

It is not necessary to declare in a will that the testator 
(or other person) is a resident of any place; but if a testa- 
tor states in his will that a fact exists, and, in the nature 
of things, if that fact may exist, and if the circumstances 
that combine to create that fact depend upon the option of 



356 Coffey's Probate Decisions, Vol, 3. 

the testator, then such declaration ought to be conclusive that 
the fact is as stated. 

Section 1850 of the Code of Civil Procedure is not in words 
as broad as the foregoing, but in spirit is on all-fours with 
it. It says that when the declaration forms part of a trans- 
action, which transaction is itself the fact in dispute, such 
declaration is evidence of the transaction. 

In the ease at bar the declaration of the testator ought to 
be conclusive, because residence always depends upon inten- 
tion : Pol. Code, sec. 52. 

Of course, if the facts point to a conclusioil different from 
the admitted intention, then the facts govern in all cases — 
that is to say, if a man should bona fide, through ignorance 
of the law, intend to reside in Sierra county (never having 
been there), his acts would govern his intention and he would 
be by the law domiciled in his true locus. But this is nut 
the case. "The residence of the husband is the residence of 
the wife": Pol. Code, sec. 52, subd. 5. "A residence cannot 
be lost until another is gained": Pol. Code, sec. 52, subd, 3. 
"A thing once proved to exist continues as long as is usual 
with things of that nature": Code Civ. Proc, sec. 1963, 
subd. 32. 

The facts in the contest in which the above-cited axioms 
are applicable are as follows: The residence and actual home 
of Mrs. De Noon was with her husband, at Gibsonville, Sierra 
county. He died a resident of that county. She died in 
San Francisco, where she conducted a lodging-house. She 
owned and occupied her husband's furnished dwelling-house, 
and other property at Gibsonville, every summer, and re- 
turned to San Francisco in the winter. She refused to rent 
her Gibsonville residence, always leaving it in charge of a 
man in the winter. 

It may be said, generally, that all the witnesses agree that 
Mrs. De Noon repeatedly said that wh^en she had sold her 
Gibsonville property she would make her residence somewhere 
else. In brief, she appears to have repeatedly given expres- 
sion to her future intentions (if this expressive solecism may 
be permitted). 

If Mrs. De Noon gained a residence in San Francisco then 
she abandoned her Gibsonville residence. If she had stated 



Estate of Thompson. 357 

in her will that she was a resident of San Francisco when she 
signed it, from that moment she would have been a resident 
of San Francisco, because having the right (under the facts) 
of choice, she then made it ; but when she stated that she re- 
sided in Sierra county, she signified that she had not aban- 
doned that residence. 

Her inchoate intention to change her residence was never 
consummated; on the contrary, her testamentary declaration 
indicates her abandonment of the incipient intention. That 
declaration was the final intent coupled with the final act, 
which determines the jurisdiction of this court. 

Application denied. 



Estate of JOHN B. THOMPSON, Deceased. 

[No. 12,653; decided May 26, 1894.] 
Testamentary Capacity. — Upon a Consideration of th© Evidenc©, 

and of the fact that the proponents of the will in this case failed to 

produce evidence which was within their power if their contentions 

were true, it was held that the testator was of unsound mind at the 

time of the execution of his will. 
Undue Influence. — Upon an Examination of the Evidence the court 

found in this case that the will proposed for probate was procured 

by duress and undue influence. 

Wills — Request to Witness to Sign. — The request to a witness to 

sign his name to a will should come from the testator and not from 

a third person. 

'J. T. Rogers, for Mrs. A. B. Kidder and Mrs. Mary A. 
Thompson, proponents of alleged last will dated July 14, 
1892. 

N. B. Malville, for Margaret Thompson, widow of testator 
and executrix of will dated January 23, 1867, opposed. 

COFFEY, J. John B. Thompson died on the 7th of Au- 
gust, 1892 ; his will was filed on 12th of August, 1892, dated 
January 23, 1867, with a petition for probate thereof; said 
will (dated January 23, 1867) was admitted to probate on 



358 CoFrEY's Probate Decisions, Vol. 3. 

the 26th of August, 1892, and letters testamentary issued to 
the widow, Margaret Thompson, on the same date. 

The homestead and household furniture were set apart and 
assigned by order of court to said widow, being all the prop- 
erty of said estate, except a watch and a few small articles 
appraised at $16.50. On or about the twenty-fifth day of 
August, 1893, a paper purporting to be another will of said 
decedent was filed in this court, with a petition for probate 
thereof, alleging that the same was the last will of said de- 
cedent. Margaret Thompson, the widow, demurred to said 
petition, which demurrer was sustained, with leave to amend. 
An amended petition was filed on or about the 16th of Octo- 
ber, 1893. Afterward in due time said widow filed written 
grounds of opposition to the probate of said paper, and the 
petitioners, Mrs. A. B. Kidder and Mary A. Thompson, filed 
an answer to said opposition. 

The issues raised by said petitions and contest W' ere : 

1. The competency' of decedent to make a will ; 

2. The freedom of decedent, at the time, from duress, men- 
ace, fraud and undue influence ; 

3. The due execution and attestation of the said paper pur- 
porting to be a will. 

The cause came up for hearing before the court, a jury 
having been waived, on the 22d of November, 1893, John 
T. Rogers, Esq., appearing for petitioners, and N. B. Mal- 
ville, Esq., appearing for contestant. 

Dr. Daniel Maclean, a practitioner for about twenty-seven 
years, graduate of the Bennett Medical College, and chief 
of the faculty of California Medical College, eclectic school 
of medicine, testified that he knew the decedent testator by 
having visited him at his residence, but did not prescribe 
for him; deceased had dropsy; the doctor w^ould not guar- 
antee his cure; thought he was sound in mind. 

Dr. John William Siefkes testified, in substance, that he 
was a graduate of Cooper Medical College; he met decedent 
frequently on the street; he was also attending phj^sician on 
decedent at his last sickness ; this doctor had treated deceased 
for Bright 's disease; deceased was dropsical; had delusions 
and hallucinations; this doctor had known decedent for five 
years immediately anterior to his demise, w^hich event oc- 



Estate of Thompson. 359 

curred August 7, 1892 ; witness had attended him up to that 
time; his memory had become impaired by chronic alcohol- 
ism; his mind was not sound on the 14th of July, 1892, the 
date of the instrument now propounded as a will; there was 
no time from June 1, 1892, to the day of his death, August 
7, 1892, that decedent was competent to make a will ; deceased 
was afflicted with Bright 's disease, interstitial nephritis, and 
diseased kidneys. 

The physician's testimony came in without objection or 
exception. 

G. S. Eastman, a policeman, testified that decedent was 
under the influence of liquor nearly all the time in the spring 
of 1892, and he appeared mentally weak. 

Mr. Gibson, an intimate acquaintance of the Thompson 
family, testified that he had called to see decedent frequently 
before he died in his last sickness, and that for three months 
before he died he was not in his right mind, and that his acts 
and remarks were peculiar and irregular and not like a man 
in his right mind. 

Mrs. Jennie Taylor testified that decedent was not in his 
right mind on the 14th of July, 1892 ; he was always drunk ; 
his mind was not right; he did not recognize this witness, 
sometimes he called her "Maggie" and "Cosgrove"; he asked 
her who took away the looking-glass on the 16th of July, 1892. 
The looking-glass was not taken away, but was still there. 

Henry Lehrke testified that decedent was ''half full" all 
the time ; that something was the matter with his mind in the 
spring of 1892 ; he was not the same as h-e used to be mentally. 

William Wiley testified that he was an intimate of dece- ; 
dent before he died ; the mind of decedent began to give way 
and weaken in the spring of 1892, and for six months before 
he died he was mentally incompetent and unsound, 

Mrs. Margaret Thompson, the widow, testified that dece- 
dent was not of sound mind for over six months before he 
died; he would talk of strange things that made her believe 
that he did not know what he was saying or doing. 

This was about all the testimony as to the mental capac- 
ity of the decedent to make a will on 14th of July, 1892. 
Whether the mental incapacity and unsoundness of mind 
arose from excessive use of liquors or other cause does not 



360 Coffey's Probate Decisions, Yol, 3. 

appear, nor does it matter. If decedent was mentally in- 
competent to make a will on the 14tli of July, 1892, that is 
sufficient. 

In behalf of the proponents of the will dated July 14j 1892, 
the following points, among others, were made : 

First — By the code the burden of showing incapacity or 
other invalidating causes is distinctly placed upon contestant. 

Second — Her proof must overcome the following presump- 
tions : 

(a) All parties present at the execution of the will and 
testifying to the circumstances thereof are presumed to speak 
the truth. 

(b) Such witnesses are presumed to be innocent of wrong, 
md therefore it cannot be imputed to them that they con- 
sciously are assisting in the presentation of a spurious will: 
Code Civ. Proc, 1193 ; Rice on Evidence, sec. 54. 

(c) Sanity is imputed: Rice on Evidence, sec. 48. 

(d) Testamentary capacity is always supposed to exist in 
an adult: Rice on Evidence, sec. 59. 

(e) It cannot be said "that because a man is a drunkard, 
therefore he is of unsound mind. It is a question of fact for 
the jury or court below to determine whether the inebriety 

j has had the effect of rendering his mind unsound, either per- 
manently or temporarily, covering the time of the execution 
of the alleged will": Estate of Johnson, 57 Cal. 530. 

Third — The amount of property involved is not an essen- 
tial criterion by which to measure the sanity of decedent. 

Nor is the question of the validity of the homestead at this 
time before this tribunal. 

If the document in controversy is in fact the will of de- 
cedent, then all the proceedings heretofore taken relative to 
the alleged will of January 23, 1867, are invalid, and do not 
furnish the court with legal evidence of any existing fact. 

Fourth — The most favorable construction that can be 
placed upon the testimony of contestant is to the effect that 
decedent was at times under the mild delirium of intoxica- 
tion. 

The testimony in this case, however, shows that there was 
no delirium at the time of executing the will. 



Estate op Thompson. 361 

Fifth — The contestant presented testimony showing that 
decedent was afflicted with Bright 's disease — death resulting 
therefrom. 

As a medical fact, none of the forms of such disease pre- 
sent characteristics of insanity. 

In the advanced stages of two forms of the disease there 
may be a coma which usually precedes and ends in death — 
rarely does it ever occur at any considerable length of time 
prior to death. 

In this connection the contention of proponents is that 
alcohol is not usually a cause of the disease. 

Dr. Tyson, in his treatise on Bright 's Disease and Diabetes,' 
on page- 124, relative to chronic parenchymatous nephritis, 
says: "Although alcohol is not a common cause of chronic 
parenchymatous nephritis, yet I cannot but think that the 
chronic nephritis which we find in confirmed drunkards — 
those who are always saturated with whisky when they can 
get it — owes its presence to the latter agent. To be sure, it 
cannot be denied that the exposure to which these outcasts 
are subjected may be the cause." 

On page 167, on interstitial nephritis, he says: "Alcohol, 
formerly thought to be a potent cause of the cirrhotic kid- 
ney, is now acknowledged to be an infrequent one. The 
analogy of this condition to the cirrhotic liver suggested a 
similar irritant action of the alcohol in the blood upon the 
interstitial tissue of the kidney. But although the portal 
blood contains a large amount of alcohol after its liberal in- 
gestion into the stomach, by the tinie the blood passes through 
the heart and lungs and gets into the kidney very little, if 
any, remains unoxidized. It is barely possible, however, that 
when enormous quantities are used, enough may remain in 
the blood passing through the kidney to irritate its connective 
tissue, and also the cells lining the tubules. The latter, from 
their efforts to remove it, are probably more frequently irri- 
tated than the former; whence also the possibility, though 
rare, also, of chronic parenchymatous nephritis being caused 
by it, as referred to in discussing the latter disease." 

On page 185, concerning the same disease, he says: "With 
regard to beverages, there is no doubt that the use of strong 
alcoholic drinks should be avoided, and brandy, whisky and 



362 Coffey's Probate Decisions^ Vol. 3. 

strong sherries and ports should be prohibited. The light 
wines, and especially the red wines, and lighter alcoholic 
drinks, as lager beer, porter, may be used." 

Henry Doscher, one of the witnesses to the will of July 
14, 1892, testified that he knew decedent for twenty years 
before he died; he was not asked if decedent's mind was 
sound at the time. 

George W. Howe, the person who acted as an attorney in 
the matter, might have been called as a witness, but he was 
not produced by proponents of the paper of July 14, 1892. 
He was tlae lawyer of Mrs. Kidder, one of the proponents 
and sister of decedent, who testified that she employed and 
paid this person ten dollars to make the will. 

Frank M. Thompson in his testimony failed to say that 
decedent's mind was sound on the 14th of July, 1892, when 
said paper was signed; his answer to a question in relation 
thereto being, "he was all right." On cross-examination he 
was interrogated as to any conversation between him and de- 
cedent in the buggy when he took decedent to his home on 
the 14th of July, 1892, but he said he did not remember ; still 
he remembered other matters and what decedent said at other 
times. The subject matter of that conversation on the 14th 
of July, 1892, would have thrown some light on his mental 
condition at that time : Code Civ. Proc, sec. 1963, subds. 5, 6, 
sec. 2061, subd. 7. 

Upon the issue of undue influence the testimony shows that 
Mrs. Kidder, the sister of decedent, and Mrs. Thompson, his 
sister in law, came to decedent's home frequently before his 
death and remained with him at his bedside for some time. 

A resident on the opposite side of the street saw, through 
her window, the sister and sister in law place their arms 
around decedent when on his sickbed and kiss him on several 
occasions ; they never did this in the presence of his wife. 
Afterward this sister, Mrs. Kidder, sent her brother Frank 
with a buggy on the 14th of July, 1892, and took him to ■ 
Frank's house, where the parties had a person acting as a 
lawyer; Frank told decedent's wife that he was taking him to 
see a doctor; he did not take him to a doctor. These facts 
show a certain influence obtained by said parties over said 
decedent. 



Estate of Thompson. 363 

Mrs. Kidder said that decedent told her that he desired 
to make a will, and her object in sending Frank for him was 
to have him make a will. Still, those facts were concealed 
from his wife. When Frank took him off in the buggy he 
told his wife he was taking him to see a doctor, which was 
not the fact ; it was a misrepresentation to her. 

This testimony is sufficient to sustain the issue of duress, 
fraud and undue influence involved in this proceeding, and 
also the freedom of decedent at the time ; he was in the house 
of defendants, under their control and power, when this 
paper, dated July 14, 1892, and drawn by defendants' law- 
yer, was produced, and decedent was constrained to sign it. 

The third issue involved is as to the due execution and at- 
testation of the will, 

Frank M. Thompson testified that Mr. Hernan drew it, that 
he told Hernan what to say in it; Mr. Howe came to Frank's 
house and spoke to decedent and took down on paper what 
he said; but it does not appear what decedent told Howe. 
At all events, Howe did not attempt to put on paper the state- 
ment of decedent. Mr. Hernan drew the paper at the dicta- 
tion of Frank Thompson. 

"At the house the lawyer read the paper and handed it to 
J. B. Thompson, and asked him to sign it." Then it was 
handed by Howe to Doscher and he was asked to sign it at a 
certain place, which he did. It does not appear that the cer- 
tificate to the will was read or explained to the witness. 

Testator did not dictate the will or read it. Frank M. 
Thompson dictated it at the office of the attorney, Mr. Her- 
nan. Frank M. Thompson, in fact, had the will drawn to 
suit himself. 

The testator did not request the witnesses to sign their 
names as witnesses at the end of the will, and there was no 
signing done by any of the witnesses at the request of de- 
cedent. 

The action of Howe in the premises, as appears by the tes- 
timony, should not be substituted as the act of decedent — the 
statute should not be so construed. 

The decedent did not declare that the paper of July 14, 
1892, was his will. It was not his will, and should be and 
is denied probate: Civ. Code, sec. 1276. 



364 Coffey's Probate Decisions, Vol. 3. 



Estate of MICHAEL LEAHY, Deceased. 

[No. 12,338; decided May 31, 1893.] 

Homestead — Whether Absolute or for Limited Period. — "When no 
homestead has been selected during the lifetime of decedent, a home- 
stead for the use of the widow and minor children can be set apart 
absolutely only out of the common property; if there is no common 
property, then a homestead may be set apart out of the separate 
estate of the decedent, but only for a limited period, to be desig- 
nated in the order, and the title vests in the heirs of the deceased, 
subject to such order. 

Homestead. — While the Homestead Law Should be Liberally Con- 
strued, and the widow and minor child should not be deprived of 
any of the rights which the law gives them, yet nothing not equitable 
and just should be done as between the widow and minor child on 
the one hand and the adult children on the other. 

Community Property. — The Changing of the Form does not Destroy 
the Identity of separate property. 

Community Property. — ^Where Part of the Piirchase Price of Real 
Property was obtaiued by the decedent by the pledge of his separate 
property, and there is not money enough on hand in the estate to 
redeem the pledge, the remote contingency that the estate of dece- 
dent might, at some time, be able to redeem it, cannot change the 
character of the transaction so as to make the real estate common 
property for the purpose of a homestead application. 

Commimity Property. — Where Property is Acquired by Funds Be- 
longing Partly to the separate property of one spouse and partly to 
the common property, the property so acquired becomes in part the 
separate property of the spouse who furnishes the funds from his or 
her separate property, and in part the common property of both 
spouses, in proportion to the separate and community funds invested 
in it. 

Homestead — Property from Should be Selected. — In determining an 
application for a homestead, all the circumstances must be consid- 
ered, and where the real property sought to be set apart was pur- 
chased mainly with separate funds of the decedent, and was all the 
real property of and constituted the major portion of the estate, and 
there are adult heirs, such real property should not be set apart to 
the widow and minor child absolutely. 

Michael Leahy died intestate on July 12, 1892, leaving him 
surviving Ellen, his widow, and Alice, their minor child, and 
also a number of adult children by a former wife. 

The widow was appointed administratrix of the estate on 
August 1, 1892, and on August 26, 1892, filed her petition to 



Estate of Leahy. 365^ 

have set apart to her as a homestead, absolutely, a lot on Bart- 
lett street, in San Francisco, which she claimed was commim- 
ity property. 

Sawyer & Burnett, for the petitioner. 

Wheaton, Kalloch & Kierce, for the adult heirs. 

COFFEY, J. The application to set apart a homestead 
in this proceeding is based on section 1465 of the Code of 
Civil Procedure of this state, which provides, among other 
things, as follows: "If none [referring to a homestead] has 
been selected, designated and recorded .... the court must 
select, designate and set apart, and cause to be recorded, 
a homestead for the use of the surviving husband or wife 
and the minor children, out of the common property," etc. 

The petition filed herein alleges that the real estate de- 
scribed therein is the community property of the widow and 
her deceased husband; that it was purchased on the seven- 
teenth day of May, 1888; that no homestead was recorded 
during the lifetime of the deceased, and that there is one 
minor child. 

The answer filed to the petition of the applicant admits 
all the facts except that the property is the community prop- 
erty of the applicant and her deceased husband, but alleges 
that it was purchased in part with the earnings and divi- 
dends of the separate estate of the deceased, and that thirty 
shares of stock, separate property, were hypothecated as part 
of the purchase price. 

It is admitted that the piece of property is appraised at 
$6,100; that thirty shares of stock have been pledged to pay 
$1,500 of the purchase price of the said piece of real estate; 
that the widow is to receive $2,000 from the United Order of 
Workmen, as her separate property, and that at the time ap- 
plicant married deceased he owned as his separate property 
either thirty-one or two shares of stock in the Workingmen's 
Boot and Shoe Company of the par value of $50 per share. 

The contention in the matter narrows itself down to the 
fact as to whether the real estate was purchased in part \^ith 



366 Coffey's Probate Decisions, Vol. 3. 

separate funds or whether it was entirely purchased with 
community funds. 

For the purpose of proving opponent's side of the case, 
Walter Rosie, secretary of the Boot and Shoe Companj^, was 
subpoenaed, and after he was sworn and in part examined, 
it was suggested that he furnish an itemized ledger account 
showing the amount of dividends, and the amounts an'd times 
when stock was purchased, from the time of the marriage up 
to date. This account shows the following facts: At the time 
the deceased married he owned thirty-one shares of stock of 
the value of $1,550. On July 2, 1877, the dividends on that 
stock amounted to $186; to that amount the deceased added 
$14 in cash and purchased four shares of stock. On January 
5, 1878, the dividends amounted to $210, and on that day he 
purchased four shares of stock for $200 and left the remain- 
ing $10 with the company. On July 1, 1878, the dividends 
amounted to $234, and adding $6 he purchased five shares 
of stock. On January 2, 1879, the dividends amounted to 
$198, and adding $2 in cash he purchased four more shares 
of stock. On July 2, 1879, the dividends amounted to $216, 
and on the following day he purchased four more shares of 
stock and drew out $16 in cash. On January 5, 1880, the 
dividends amounted to $234, to which he added $16 in cash 
and bought five shares of stock. On July 1, 1880, the divi- 
dends amounted to $85.50, to which he added $14.50 in cash 
and bought two shares of stock. On January 1, 1881, the 
dividends amounted to $88.50, and to that amount he added 
$11.50 in cash and purchased two shares of stock. On July 
5, 1881, the dividends amounted to $183. To that $17 in cash 
were added and four shares of stock were purchased. On 
January 5, 1882, the dividends amounted to $195, to which $5 
in cash were added and four shares of stock purchased. On 
July 10, 1882, the dividends amounted to $138, to which $12 
in cash were added and three shares of stock purchased. On 
January 3, 1883, the dividends amounted to $288, to which 
$12 in cash were added and six shares of stock were pur- 
chased. On July 2, 1883, $400 in cash were put in, and on 
July 9th a dividend of $195 declared, and on that day ten 
shares of stock were purchased, and on the 16th of July $95 
in cash were drawn out. On January 6, 1884, the dividends 



Estate op Leahy. 367 

amounted to $308, and six shares of stock were purchased, 
and $8 in cash drawn out. On July 7, 1884, the dividends 
amounted to $423, and on that day the last shares of stock, 
six in number, were purchased and $123 were drawn out. 
This fully accounts for the one hundred shares of stock owned 
by the estate. 

To buy the sixty-nine shares of stock after the deceased 
married in 1877, the purchase price of which was $3,450, the 
deceased added to the dividends accruing from the stock the 
sum of $510 up to the time the last stock was purchased, 
and during the same period drew out from the dividends the 
sum of $242. If we assume that the $510 paid in be com- 
munity property, it still leaves eighty-nine and four-fifths 
shares of stock as separate property, and it is admitted that 
thirty shares of stock were pledged to make part of the pur- 
chase price. 

The secretary of the Hibernia Bank produced the accounts 
of the deceased with that bank, and copies of the accounts 
have been introduced in evidence pursuant to order. The 
first bank account covers a period of time from January 11, 
1881, to May 9, 1888. 

The second account covers a period of time from March 
22, 1888, up to date. 

From and after the last purchase of stock up to the time 
of the purchase of the real estate in May, 1888, the follow- 
ing facts appear from the first bank account -and from the 
account with the Boot and Shoe Company : On July 12, 1894, 
the deceased received in cash as dividends the sum of $123, 
and on July 21st $100 were deposited in the bank. On Janu- 
ary 3, 1885, $450 were received as dividends and $500 were 
placed in bank. On July 11, 1885, $300 were received as 
dividends, and on July 25, $300 were put in bank. On Janu- 
ary 16, 1886, $225 were received as dividends, and on Feb- 
ruary 4th, $200 were put in bank. On March 1, 1886, $225 
were received as dividends, and on March 8th, $250 were put 
in bank. On July 16, 1886, $150 were received as dividends, 
and on August 16th, $100 were put in bank. On August 
28th, $150 were received as dividends, and on September 16th, 
$200 were put in bank. On March 18, 1887, $300 were re- 
ceived as dividends, and on March 28th, $350 were placed in 



368 Coffey's Probate Decisions, Vol. 3. 

bank. On July 16, 1887, $200 were received as dividends, 
and on the 18th of July, $200 were placed in bank. On Feb- 
ruary 18, 1888, $225 were received as dividends, and on Feb- 
ruary 17, 1888, $130 were placed in bank. 

The dividends during this time amounted to $2,573, and 
during this time $2,330 went into the Hibernia Bank. Now, 
as fully ninety per cent of the stock is separate estate, ninety 
per cent of its dividends must also be separate property, and 
a large percentage of this went into the Hibernia Bank and 
was drawn out to make part payment on the purchase price 
of the real estate on May 9, 1888. All the facts shown by 
the bank accounts and Boot and Shoe Company's account 
show that a large part of the separate estate went toward buy- 
ing the real property. 

Passing from the state of facts established, let us consider 
the contention of applicant. 

Counsel for applicant suggest that this is not a controversy 
between creditors and a widow and minor, but that it is a 
contention between adult heirs and the widow and minor 
child. 

Counsel also suggest that homesteads are provided for in 
exery state in the Union, and are liberally construed in favor 
of the claimant. 

This is true, and the widow and minor child should not 
be deprived of any of the rights which the law gives them, 
and the widow, should have a homestead set apart, not, how- 
ever, absolutely, as counsel desires, but either for life or for 
a limited period. Nor should anything be done but what is 
equitable and just, as between the widow and those who are, 
equally with her, entitled to the benefits of their father's 
patrimony. 

Counsel for applicant contend that the court must set apart 
a homestead, and cites section 1465, Code of Civil Procedure, 
to sustain that contention. 

The only condition under which a homestead can be set 
apart under that section is when it is community property, as 
by the use of the words "community property" it expressly 
excludes all other property, and where property partakes of 
the nature of both community; and separate property, as in 



Estate of Leahy. 369 

this case it does, it is beyond the power of the court to set 
aside the homestead absolutely. 

It is not necessary to contend against the doctrine laid 
down by the many cases of the supreme court of this state 
upon cases where homesteads have been applied for upon com- 
munity property and been set apart absolutely. 

In the Estate of Ballentine, 45 Cal. 696, cited by counsel 
for applicant, the property was community property, and 
so with the series of cases that have followed it. 

It was once supposed in this state that the widow was en- 
titled to have set apart to her absolutely a homestead out of 
the separate property, and such seems to have been the doc- 
trine laid down by the supreme court in Mawson v. Mawson, 
50 Cal. 541, but whatever effect that case may have had as 
an authority upon that subject, it has been overruled in the 
Estate of Schmidt, 94 Cal. 334, 29 Pac. 714. 

This probate department has several times held that where 
the estate is separate property, a homestead should be given 
for a limited time or for life : Estate of R. T, Maxwell, 1 Cof . 
Pro. Dec. 126; Estate of Robert N. Tate, 1 Cof. Pro. Dec. 
217; Estate of Lahiff, decided by this court and affirmed in 
86 Cal. 151, 24 Pac. 850. 

Whenever the property is not community property, the 
power of the court to set it aside as a homestead is governed 
by the provisions of section 1468 of the Code of Civil Pro- 
cedure, which provides that *'the court can only set it apart 
for a limited period to be designated in the order, and the 
title vests in the heirs of the deceased subject to such order." 

The second point made by counsel for applicant is, that al- 
though the property is appraised at more than $5,000, that 
that is no objection to setting it apart absolutely as a home- 
stead. 

The Estate of Walkerly, 81 Cal., page 580, 22 Pac. 881, is 
cited to sustain that contention. 

That case must be viewed in the light of the circumstances 
under which it was decided. In that case the estate was of 
the value of $500,000 over and above all indebtedness. The 
homestead was of the value of $15,000. The court below set 
apart the homestead for the widow and child for a limited 

Prob. Dec, Vol. Ill —24 



370 Coffey's Probate Decisions, Vol. 3. 

period, and the court says, page 584: *'The estate here is a 
large one, and we cannot say, from' the evidence before us, 
that the court below abused its discretion in the matter." 
The circumstances in the case at bar are very different. In 
this ease the widow asks to have all the real estate set apart 
to her and the minor child absolutely and completely and 
forever taken from the assets of the estate. 

The third point for which counsel for applicant contend is 
the presumption that the real estate, purchased eleven years 
after the marriage, is common property. 

The case of Meyer v. Kinzer, 12 Cal. 247, 73 Am. Dee. 538, 
is cited as sustaining the doctrine that this presumption can 
only be overcome by clear and convincing proof that the 
property is separate property. The counsel say we know of 
no "clear and convincing proof" that it is not common prop- 
erty. Counsel further say that it is in evidence that at the 
marriage r\Ir. Leahy owned thirty-one shares of stock in the 
Workingmen's Boot and Shoe Factory, but that the stock 
still belonged to him at his death, and now forms part of his 
estate, etc. 

It is shown satisfactorily to the court, by the account taken 
from the books of that corporation, that the dividends of the 
stock have produced nearly all the other shares of stock now 
owned by the estate. It is also admitted that $1,500 of the 
very purchase price of the real estate came from the hypothe- 
cation of thirty shares of this stock, and no matter whether 
that stock be the original shares of stock, or that purchased 
afterward with the dividends and a small portion of advanced 
cash, it is still clearly and unmistakably mainly the separate, 
if not entirely the separate, property of the deceased. In 
addition have been traced the dividends which are largely 
separate property from the factory to the bank, and from 
there into the very purchase price of the real estate. There 
is no escape from one proposition, and that is that there is 
not money enough on hand in the estate to redeem these 
shares of stock. It matters not from what point it may be 
viewed, the fact is undeniably true that thirty shares of 
stock have been pledged, that these shares of stock are mainly, 
if not entirely, separate property, and that the money for 



Estate of Leahy. 371 

which they were hypothecated was paid as part of the pur- 
chase price of the realty. 

The changing of form does not destroy the identity of 
separate property, and it is immaterial whether the indebted- 
ness has been paid or not: Civ. Code, sec. 163. 

Suppose that the deceased had owned anything else, and 
had pledged it, or exchanged it to pay part of the purchase 
price of this real estate, would not the money arising from 
that pledge be separate property? If A owes B $1,000 on a 
note before B's marriage, and B hypothecates the note to 
obtain $1,000 to pay upon a piece of real estate, would not 
that money be separate property? 

The remote contingency that the estate of Michael Leahy 
might at some time be able to redeem the pledged stock from 
the hands of the pledgee cannot so change the matter as to 
make this piece of real estate, purchased by the hypotheca- 
tion of this separate property, common property for the pur- 
pose of this application. 

It has been shown that this property was purchased in part 
by separate funds, arising from the hypothecation of stock 
and cash dividends arising from the stock, nine-tenths of 
which is separate property : In re Bauer, 79 Cal. 301, 21 Pac. 
759. 

In that case, like the one at bar, the question was whether 
the realty was partly the separate estate of the deceased 
and partly community property, or whether it was entirely 
community property. It was claimed in that case, as it is 
in this, that the property was community property, as it was 
purchased during coverture. The effect of the presumption 
is fully discussed on pages 307 and 308 of the opinion. In 
the Bauer case, at the time of his marriage the deceased had 
personalty valued at $3,000; in the case at bar the value is 
$1,550. In that case il appears that he commingled his sepa- 
rate and community earnings; in this case every cent of 
dividends is accounted for up to the present time. The dates 
when stock was purchased, the dates when dividends were 
paid, and the amounts paid toward buying stock, fully ap- 
pear and are easily figured out. From the time the last 
stock was purchased up to the time that the realty was pur- 
chased, the amount of dividends fully appears, the days 



372 Coffey's Probate Decisions, Vol, 3. 

when drawn, and in fact the bank accounts almost conclu- 
sively show that nearly all the money went from the factory 
to the bank, and the proportions are easily seen. 

In the case at bar the widow has it in her power to show 
where every cent of money was obtained, and, having failed 
to oppose the showing made by the opponents of the applica- 
tion, from the bankbooks, it may fairly be inferred that she 
was unable to show that the dividends were not conveyed to 
the bank at the times shown : See facts of the Bauer Case, 79 
Cal. 309, 21 Pac. 759. 

The doctrine applied in that case may be invoked in this, 
that "where property is acquired by funds belonging partly 
to the separate property of one spouse, and partly to the 
community property, the property so acquired becomes in 
part the separate property of the spouse who furnishes the 
funds from his or her separate property, and in part the 
community property of both spouses, in proportion to the 
separate and community funds invested in it: Schuyler v. 
Broughton, 70 Cal. 282, 1 Pac. 719. In following the sepa- 
rate property of deceased through its various mutations in 
the two banks and in his business until the purchase of the 
homestead, we are aided by the principles that, it having been 
conclusively shown that deceased owned separate property at 
the time of his marriage, it continued to remain such (Code 
of Civil Procedure, section 1963, subdivision 32), and that 
the profits thereof acquired the same character (Civil Code, 
section 163)": 79 Cal. 309, 310., 

It has been satisfactorily shown in this case that the accu- 
mulations of the separate property of the deceased have in 
part paid for the realty, and the decision of this department 
in the Estate of Tate, supra, should control in this case. 

In that case this court said: "The power of the court is 
limited by a sound discretion acting upon the circumstances 
of the particular case. The fee passes to the heirs, in this 
case the petitioner and the applicant, in equal shares, with a 

limited estate as a homestead in the surviving widow 

If the petitioner w^ere young, and likely to remarry, and ob- 
tain a home and support by that act, a limitation for life 
might be indiscreet, but, considering her age — ^she is now 



Estate of Leahy. 373 

sixty-two .... the court is of opinion that she is entitled 
to have a homestead set apart for life, and it is so ordered," 

Counsel for applicant in their brief, in this case, say that 
"the policy of the law is to protect the widow and minor chil- 
dren. In most cases the widow has contributed by her exer- 
tions to the accumulation of the property, and she should not 
be turned out upon the world after years of hard labor, and 
frequently when her best days have passed. The minor chil- 
dren, of course, should be protected, because they are not able 
to make their livelihood." 

It is evident from the foregoing statement that counsel as- 
sume that the adult heirs are trying to thrust out the widow 
and minor child upon the charity of the cold world, homeless 
and houseless, but the court does not so understand their posi- 
tion in the matter. The adult heirs are not contending that 
no homestead at all should be allowed, but that no absolute 
homestead should be set apart, and thus absolutely withdraw 
from administration the major portion of the estate, and leave 
comparatively nothing in the estate for them at its close. 

Either a limited homestead, or a homestead for life, is all 
that ought to be allowed in this case. The widow is to re- 
1 eeive, if she has not already done so, the sum of $2,000 from 
j a benevolent order, and this for her own and separate use. 
The adult heirs, born of another mother, their father having 
a good paying separate estate at the time he married the 
applicant, should not be shut out of view in considering this 
application. 

The widow is now nearly sixty years of age and the minor 
child is over the age of thirteen years. 

The real estate is shown to have been purchased in part 
with the proceeds of separate estate, and a homestead should 
not be granted absolutely, but only for a limited period, or 
for life. 

The court awards it for the life of the applicant. 



What Property Belongs to the Community is the subject of a note 
to Estate of Foster, 4 Cof. Pro. Dec. 

When a Probate Homestead is selected for the separate estate of 
the decedent, the court can set it apart for a limited period only. 
The remainder in fee vests in the heirs, even to the exclusion of 
devisees named in the will: 1 Koss on Probate Law and Practice, 495, 



374 Coffey's Probate Decisions, Vol. 3. 



Estate of FREDERICK WIESE, Deceased. 
[No. 14,165; decided April 14, 1894.] 

Inheritance Tax. — Property Passing by will or by the intestate 
laws is subject to the inheritance tax on its market value, and this 
tax, it would seem, should be assessed on the estate of a decedent 
after the deduction of costs of administration and debts. 

J. S. Henderson, for the executrix. 

J. A. Hosmer, assistant district attorney, for the state. 

Elliott McAllister, appointee of court. 

COFFEY, J, The following memorandum, submitted by 
Mr. McAllister, is adopted as the opinion of the court : 

Question on construction of "An act to establish a tax on 
collateral inheritances, bequests and devises, to provide for 
its collection and to direct the disposition of the proceeds" 
(Statutes of 1893, page 193), as to whether the tax is to be 
assessed before or after the deduction of debts of the estate 
and expenses of administration, where such deduction must 
be made from property devised or bequeathed to collateral 
heirs, and, therefore, subject to the provisions of said law. 

The question above formulated arises in the matter of the 
Estate of Frederick Wiese, deceased. Under the will of de- 
cedent all of the property over which decedent had the power 
of testamentary disposition — namely, one-half of the prop- 
erty of the estate, which was all community — was devised and 
bequeathed to persons not exempt under the statute. 

The estate is ready for distribution, and the question now 
arises : On what basis shall the tax be computed — on the value 
of the property without deducting the cost of administration 
and the debts of the estate, or on the value of the property 
after making such deductions? 

The statute does not seem to furnish a definite statement in 
reply; and so we must consider those portions of the statute 
that manifest the intention of the legislature in this respect. 

Section 1 (Statutes of 1893, page 193) provides: ". ... all 
property which shall pass by will or by the intestate laws of 



Estate of "Wiese. 375 

this state .... to any person .... shall be and is subject 
to a tax of five dollars on every hundred dollars of the mar- 
ket value of such property." 

And section 9 (page 195) provides: "Whenever any debts 
shall be proven against the estate of a decedent after the pay- 
ment of legacies or distribution of property from which the 
said tax has been deducted or upon which it has been paid, 
and a refund is made by the legatee, devisee, heir or next of 
kin, a proportion of the tax so deducted or paid shall be re- 
paid to him by the executor, administrator or trustee, if the 
said tax has not been paid to the county treasurer or to the 
state controller, or by them if it has been so paid." 

The "passing" of the property contemplated under section 
1 seems to be an unconditioned and completed transfer of the 
property. Bouvier's Law Dictionary defines "to pass" as 
"to become transferred"; and "transfer" as "the act by 
which the owner of a thing delivers it to another person, with 
the intent of passing the rights which he has in it to the lat- 
ter." The rights of an owner include that of possession as 
well as of title. The rights of ownership of a decedent's es- 
tate are acquired by those entitled thereto by submission of 
the property to the jurisdiction of thje probate court, in ac- 
cordance with the provisions of the laws of California. And 
what this "passing" of property is and by what method con- 
summated must be sought for in the codes. 

The Civil Code, by section 1363, provides that the title of 
specific devises and bequest's shall pass by the will; that the 
possession shall not so pass, but shall be obtained from the 
personal representative, who may sell such specific devises and 
bequests for certain purposes. 

The same code, by sections 1384 and 1386, provides similar 
regulations for the passing of property under the intestate 
laws of this state. 

In other words, the "passing" of all property, whether by 
will or hj the intestate laws, is conditional, is subject to the 
debts of the decedent and to the purposes of administration. 
Such purposes are found in section 1516 of the Code of Civil 
Procedure, which provides: "All the property of a decedent 
shall be chargeable with the payment of the debts of the de- 
ceased, the expenses of administration, and the allowance to 



376 Coffey's Probate Decisions, Vol. 3. 

the family, except as otherwise provided in this code and in 
the Civil Code ; and the said property, personal and real, may 
be sold as the court may direct, in the manner prescribed in 
this chapter. There shall be no priority as between personal 
and real property for the above purposes." 

The only priority is allowed w^hen it is necessary to carry 
out the intention of the decedent, when he has made specific 
devises and there is insufficient property for the debts. Such 
order of resort to property is provided for in section 1359 of 
the Civil Code. 

From all of the above it appears that whether any of de- 
cedent's property ever reaches the heirs or legatees is depend- 
ent on the possession of the personal representative and on 
the amount of the debts and costs of administration ; and that 
the passing is not completed until the possession be surren- 
dered by the personal representative to the legatee or heir. 

It would seem, therefore, that the tax in question is to be 
assessed on the estate after deduction of costs of administra- 
tion and debts. 

This view is confirmed by the fact that the legislature has 
provided (section 9, above quoted) for a repayment to the 
legatee of a proportion of the tax paid, when the legatee, as 
sometimes may happen, after receiving the property, is com- 
pelled to refund a portion thereof to meet debts of the estate. 

The same conclusions have been reached in Pennsylvania 
and New York, in which states the statutes on this subject 
are similar. 

In Orcutt's Appeal, 97 Pa. 185, the court held: "The tax 
does not attach to the very article of property of which de- 
ceased died possessed. It is imposed only on what remains 
for distribution after expenses of administration, debts and 
rightful claims of third parties are paid or provided for. It 
is on net succession to the beneficiaries, and not on the secur- 
ities in which the estate of decedent was invested. How, then, 
is it possible to impose a tax on this fund when it has never 
been judicially ascertained how much or whether any of it 
will go to collateral legatees?" 

In Commonwealth's Appeal, 34 Pa. 204, the court allowed 
the amount of a sum paid to the widow in compromise by col- 
lateral legatees from their legacy to be deducted before the 



Estate op Wiese. 377 

tax was assessed, and in so doing held: "It [the sum de- 
ducted] did not, therefore, pass to the legatees and devisees 
under the will, and was therefore not paid out of an estate 
so passing." 

In Strode v. Commonwealth, 52 Pa. 181, the court cites with 
approval the nisi prius opinions: "It is the clear value of the 
estate passing to collateral heirs we are to look to, and that 
cannot be ascertained until after the debts are paid. The 
clear value for distribution must be exhibited by the execu- 
tors in their settlement, and from that the state is to take its 
share, and we cannot inquire into the source from which that 
balance is made up"; and at page 189: "The law takes every 
decedent's estate into custody, and administers it for the bene- 
fit of creditors, legatees, devisees and heirs, and delivers the 
residue that remains, after discharging all obligations, to the 

distributees entitled to receive it And it is not until 

this work of administration is performed that the right of suc- 
cession attaches The act operates on the residue of 

the estate after paying debts, and, theoretically, that residue 
is always a balance in money. The administration account 
always exhibits a balance in cash, not in specific goods, 
whether bonds or horses ; and, though an heir may take bonds 
or horses as cash, the account must show, and always does 
show, a cash balance. That is the fund taxed by this law, 
and not the bonds or other chattels which may have produced 
the fund." 

Mr. Dos Passos, in his work on this subject, summarizes the 
New York law in saying at page 112: "From the authorities, 
and on principle, it would appear that the tax can only fairly 
be imposed upon the net surplus passing to collaterals after 
all just debts and liabilities are deducted or paid." 

The term "market value," used in our statute, should cre- 
ate no confusion. The New York statute of 1885 used the 
terms "fair market value" and "cash value," as did also the 
statute of 1887 of that state; these terms have been held to 
mean the same thing : Matter of Astor, 6 Dem. 402, 410. 

The Pennsylvania statute uses the term "clear value," 
which might be somewhat more apt, if it be at all necessary 
to be more express. But the question turns on the time of the 



378 Coffey's Probate Decisions, Vol. 3. 

"passing," for that is the time when the value, be it "clear," 
"market" or "cash," is to be computed; and on the amount 
of property so passing is the market value to be reckoned and 
the tax to be assessed. 



Estate of EDWARD HULL, Deceased. 

[No. 14,067; decided December 26, 1894.] 

Wills — Lapse of Bequest to Corporation. — A bequest to a street 
railway corporation to establish a reading-room for its employees 
lapses where, before the death of the testator, the corporation is 
consolidated with others to form a new company. 

Charity. — Where There is a Gift to Charity generally, indicative of 
a general charitable purpose and pointing out the mode of carrying 
it into eifect, if that mode fails, still the general purpose of charity 
shall be carried out; but where the testator shows an intention, not 
of general charity, but to give to some particular institution, 
then if it fails because there is no such institution, the gift does 
not go to charity generally. 

Cy Pres — When Doctrine not Applicable. — Where the object of a 
bequest in trust is incapable of being performed, both the trustee 
and beneficiaries having ceased to exist prior to the death of the 
testator, the doctrine of cy pres cannot be invoked, and the court 
is unable to name a trustee by whom the trust can be performed. 

Charity. — The Main Distinction Between an Ordinary Trust and 
one for charitable uses is that the former is for a definite, ascer- 
tained object, while the latter is favored and supported in equity by 
reason of the uncertainty of its object. 

Charity. — Where the Intention of the Testator, as shown by the 
language employed in his will, was to create a fund for the benefit 
of persons who were capable of being ascertained and recognized, 
there is no uncertainty of the object of the trust, and the main feat- 
ure of a public charity is lacking. 

Charity. — A Bequest to a Street Railroad Corporation in trust, to 
be by it invested and the income used in purchasing books and 
magazines for the reading-room of the employees of such corporation, 
is not a public charity. 

Charity. — A Corporation can Exercise No Powers beyond those 
specified in its charter, and a street railroad corporation cannot be 
endowed with the powers, duties or responsibilities of an eleemosy- 
nary or charitable institution. 



Estate of Hull. 379 

Trusts. — A Corporation Organized to Operate a Street Railroad or 
a system of street railroads, and of acquiring and holding property 
required for such purpose, has no legal capacity or power to accept 
or perform a trust to take a fund and invest it and use the income 
in the purchase of books and magazines for the reading-room of its 
employees. 

Trust. — A Bequest to a Corporation in Trust, which cannot be en- 
forced by the beneficiaries because beyond the power of the corpora- 
tion to accept or perform, is void. 

Trust. — Where a Bequest in Trust is Made to a Specified Corpora- 
tion, and a discretion is confided to it in performing the trust, and 
such corporation goes out of existence and is succeeded by another 
corporation prior to the death of the testator, the bequest does not 
go to the successor, for to sanction the exercise by it of the discre- 
tion confided to its predecessor would be an altering of the testa- 
tor's will. 

The will mentioned in the opinion below was admitted to 
probate, and Timothy L. Barker and Joseph D. Grant were 
appointed executors thereof, and letters testamentary were 
issued to them, on November 14, 1893. 

On November 5, 1894, the Market Street Railway Company 
(claiming as the successor of the Omnibus Cable Company) 
filed a petition for distribution to it of the bequest contained 
in the eighteenth clause of the will, which clause is fully set 
out in the opinion. On December 14, 1894, the executors 
filed an answer to this petition. The facts found by the 
court are stated in the opinion. 

Fred B. Lake, for the petitioner. 

Lloj^d & Wood, for the executors. 

COFFEY, J. 1. Edward Hull, a director and stockholder 
in the Omnibus Cable Company, on the 21st of May, 1891, 
made his will, the eighteenth clause of which reads : 

"Eighteenth — I give, devise and bequeath unto the Omni- 
bus Cable Company of San Francisco, State of California, a 
corporation organized and existing under the laws of said 
state, the sum of ten thousand ($10,000) dollars in trust, to 
be by it invested in such good and safe interest-paying secur- 
ities as the directors of said corporation shall deem advisable. 
The entire income thereof to be appropriated, at such times 



380 Coffey's Probate Decisions, Vol. 3. 

and periods during each year as said directors shall deem best, 
in purchasing such books and magazines as they shall deem 
suitable and best for the reading-room of the employees of 
said corporation." 

2. October 13, 1893, the Omnibus Cable Company and ten 
other street railroads, under section 473 of the Civil Code, 
amalgamated and consolidated their capital stock, debts, prop- 
erty, assets and franchises. A new company was organized, 
j called the "Market Street Railway Company." The Secre- 
tary of State certified that its certificate was properly filed 
in his office on the fourteenth day of October, 1893. Its board 
of directors immediately organized, and to it was assigned and 
it took possession of all the capital stock, property, assets and 
franchises of the eleven street railroads, including the Omni- 
bus Cable Company, assumed their debts, and thereafter all 
of said roads became and were operated as one system. In 
consideration of the transfer of its franchises, property, etc., 
to the Omnibus Cable Company was issued twenty per cent 
only of the capital stock of the new corporation; the balance 
of its stock was divided amongst the stockholders of the other 
ten railroads. A large proportion of the emploj^ees of the 
late Omnibus Cable Company were employed by the new com- 
pany, and any vacant places were filled by men, employees 
of the new company. A general superintendent for the en- 
tire system was employed, also track builders and track re- 
pairers. From the time of the consolidation on, the Omnibus 
Cable Company had no officers nor employees. 

At the time of the consolidation the Omnibus Cable Com- 
pany, at each of its power-houses, had what was called a 
waiting-room, where its employees came and waited until they 
were called to their several duties. In it were posted the 
rules and regulations for the government of the various em- 
ployees, and bulletins containing instructions for them. This 
room was for the use of the employees of the company only ; 
in it there was not any library, nor any books, magazines, 
newspapers or reading matter of any kind, excepting the 
posted rules, etc., above referred to. The employees called it 
the "gilly room." After the consolidation these rooms were 
maintained by the new corporation in the same manner a^ 
before, but to them all the employees of the new corporation 



Estate of Hull. 381 

had access, if they chose to go there, including the general 
superintendent of the entire system, the track builders, re- 
pairers, etc. 

There never was any reading-room maintained by the Om- 
nibus Cable Company or the new corporation, unless the room 
above referred to might be considered one. 

3. October 24, 1893, ten days after the issuance of the cer- 
tificate by the Secretary of State, the organization of the new 
corporation, and its taking possession of all the franchises, 
property, assets, etc., as above stated, Edward Hull died. 

The new corporation, the Market Street Railway Company 
claims that it is the successor to the Omnibus Cable Com- 
pany; that the devise and bequest v^as a public charity, and, 
as such successor, it has the right to take and administer it. 

The executors claim that the bequest could only vest on the i 
death of Edward Hull ; that it was a special and limited trust, 
for the especial and exclusive use of the employees of the Om- 
nibus Cable Company only, and to be held and administered 
only by the directors of the Omnibus Cable Company. That 
ten days prior to the death of Edward Hull said Omnibus 
Cable Company went out of existence — died, and since then 
there have not been and cannot be any employees of said com- 
pany. That since his said death there has not been, and at 
the time of the death of said Edward Hull there was not, any- 
one to take said legacy. The Omnibus Cable Company was 
dead ; it had no employees, and never again could have any. 

As said in Shields v. Ohio, 95 U. S. 323, 44 L. Ed. 357: 
"All — the old and the new — could not coexist. It was a con- 
dition precedent to the existence of the new corporation, that ■ 
the old ones should first surrender their vitality and submit 
to dissolution." 

And in Pullman Car Co. v. Missouri Pacific Co., 115 U. S. 
594, 6 Sup. Ct. 194, 29 L. Ed. 501: "It is a new corporation, 
created by the dissolution of several old ones, and the estab- 
lishment of this in their place. It has new powers, new fran- 
chises and new stockholders," and, we may add, new em- 
ployees for the entire new system, all commingled. 

When the Secretary of State certified to the filing of the 
articles (October 14, 1893), that instant the new corporation 
was created : Civ. Code, sec. 295. 



882 Coffey's Probate Decisions, Vol. 3. 

The bequest could not vest until the testator died (October 
24, 1893) : Civ. Code, sec. 1341. 

The counsel for the Market Street Railway Company argues 
that this bequest creates a trust for a charitable purpose. 

*'A charity is a gift, to be applied consistently with exist- 
ing laws, for the benefit of an indefinite number of persons, 
either hy bringing their minds and hearts underthe influence 
of education or religion, by relieving their bodies from dis- 
ease, suffering or constraint, by assisting them to establish 
themselves in life, by erecting or maintaining public build- 
ings or works, or otherwise lessening the burdens of govern- 
ments": Jackson v. Phillips, 14 Allen, 574, Gray, J., quoted 
in Estate of Hinckley, 58 Cal. 497. 

"In the Girard "Will Case the leading counsel for the will 
thus defined charity: 'Whatever is given for the love of God, 
or the love of your 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, pri- 
vate or selfish' (Mr. Binney's argument, p. 41)": Ould v. 
Washington Hospital, 95 U. S. 311, 24 L. Ed. 451. 

"The word 'charity,' in its widest sense, denotes all the 
good affections men ought to bear toward each other; in a 
more restricted sense it means relief or alms to the poor; but 
in a court of chancery the signification of the word is derived 
from the statute of Elizabeth" : Perry on Trusts, 3d ed., c. 23, 
sec. 697. 

In the case of Dodge v. Williams, 46 Wis. 70, 1 N. W. 92, 
50 N. W. 1103 (bequest of money to be used in the education 
and tuition of worthy indigent females), the court says, at 
page 98: "It was objected that the beneficiaries of this char- 
ity are uncertain. A charitable use is essentially shifting. 
When a trust defines the beneficiaries with certainty, it is 
rather private than public. As Mr. Perry remarks, charity 
begins where uncertainty of the beneficiaries begins. (Sec- 
tion 687.) 'It is no charity to give to a friend. In the books 
it is said that the thing given becomes a charity where the 
uncertainty of the recipients begins. This is beautifully illus- 
trated in the Jewish law, which required the sheaf to be left 
in the field for the needy and passing stranger.' (Fontain 
V. Ravenel, 17 How. 369, 15 L. Ed. 80.) It is the number 



Estate of Hull. 383 

and indefiniteness of the objects, and not the mode of reliev- 
ing them." 

In the case of Burd Orphan Asylum v. School District, 90 
Pa. 21, testatrix by her will provided for the establishment 
of an asylum, whose object should be the maintenance and 
education of white female orphan children, of not less than 
four years or more than eight: First, who shall have been 
baptized in the Protestant Episcopal Church in the city of 
Philadelphia ; second, the same class of children baptized in 
said church in the state of Pennsylvania ; third, all other 
white female orphan children, between the said years, with- 
out respect to any other description or qualification whatever, 
except that at all times, and in every case, the orphan chil- 
dren of the Protestant Episcopal Church shall have the pref- 
erence. Held, that the asylum was a purely public charity. 

All gifts for the promotion of education are charitable in 
the legal sense: Russell v. Allen, 107 U. S. 172, 2 Sup. Ct. 
327, 27 L. Ed. 401; Estate of Hinckley, 58 Cal. 511; Drury 
V. Inhabitants of Natick, 10 Allen, 169 ; Sweeney v. Sampson, 
5 Ind. 465. 

A will directing the executor to invest the residue of the 
estate "as he may deem best, as a fund, the annual interest 
of which shall be applied for the benefit of the Sabbath school 
library of the First Baptist Church in S., or the Baptist Home 
Missionary Society, whichever may be deemed most suitable," 
is a good charitable bequest: Fairbanks v. Lamson, 99 Mass. 
533 ; see Drury v. Natick, 10 Allen, 169. 

The attention of the court is also called to the case of Sal- 
tonstall V. Sanders, 11 Allen, 446; 3 Am. & Eng. Ency. of 
Law, 128, 129, 132. 

There can be no doubt, says the counsel, but that Mr. Hull 
intended to benefit the employees operating the lines of the 
Omnibus Cable Company by providing them with a means of 
obtaining instruction, recreation and pleasure. The purpose 
of his bounty — this charity — was the same as if he had be- 
queathed the amount to provide clothing or food or medicine 
for the indefinite class of persons he had selected. It is a 
significant fact that although he was a stockholder in the Om- 
nibus Cable Company, though he consented in writing to its 
consolidation with the other constituent corporations forming 



384 Coffey's Probate Decisions, Vol. 3. 

the Market Street Railway Company, though the inception, 
development and consummation of such consolidation must 
have been the work of months, still this clause in his will re- 
mained unaltered, and he made no codicil to explain that in 
case such consolidation was effected, his will was that the be- 
quest should lapse or should be diverted to some other chan- 
nel. 

Counsel for the corporation claimant contends, secondly, 
that the lines of railroad heretofore operated by the Omni- 
bus Cable Company are now and will be hereafter operated by 
the Market Street Railway Company, under and by virtue of 
the franchises acquired from the Omnibus Cable Company by 
the consolidation. 

By the consolidation the Market Street Railway Company 
acquired the franchises of the Omnibus Cable Company, to- 
gether with those of the remaining constituent corporations. 
True, the constituent corporations lost their identity as cor- 
porations. The authorities quoted by the learned counsel for 
the executors fully sustain that position, but it is submitted 
that the employees operating the lines of railroad of the Om- 
nibus Cable Company did not by such consolidation lose their 
identity as either conductors, gripmen or otherwise operat- 
ing such lines. The class of persons selected by Mr. Hull re- 
mained the same as if no consolidation had in fact been made. 
He designated a class of persons to receive the benefits of 
this bequest, and this class still remains. It certainly seems 
hard that in case of such a charity the trustee, by voluntary 
action, in which the beneficiary has no word, can, with the aid 
of strangers, bar the legacy. It is submitted such is not the 
law. Again, though at the death of Mr. Hull the Omnibus 
Cable Company, as a company, had been merged in the Mar- 
ket Street Railway Company, its franchises still lived, and 
were and will be operated by the Market Street Railway Com- 
pany; the class of persons selected by Mr. Hull were and are 
stiU performing identical duties to those performed by them 
prior to such consolidation, and on the identical lines of road. 
The trustee under the will is wanting; the beneficiaries are 
still in existence as a class. 

Finally, counsel for the corporation claimant insists that 
the execution of the trust is for a definite purpose by a trus- 



Estate of Hull. 385 

tee, and the court should take the administration of the trust 
and carry it into effect cy pres: Estate of Hinckley, 58 Cal. 
457, 512; Jackson v. Phillips, 14 Allen, 580; Burr v. Smith, 
7 Vt. 241, 29 Am. Dec. 154 ; Howard v. Society, 49 Me. 302 ; 
Derby v. Derby, 4 R. I. 439 ; AVinslow v. Cummings, 3 Cush. 
358; Bliss V. Bible Soc, 2 Allen, 334; Academy v. Clemens, 
50 Mo. 167; Kiefer v. Seminary, 46 Mich. 636, 10 N. W. 50; 
Oilman v. Hamilton, 16 111. 225; Moore v. Moore, 4 Dana 
(Ky.), 354, 29 Am. Dec. 417; Philadelphia v. Girard's Heirs, 
45 Pa. 9, 84 Am. Dec. 470. 

In view of the fact that the legacy had vested in a charity 
prior to the decease of the testator, counsel thinks that the 
court ought to grant the prayer of petitioner to be appointed 
trustee for the execution of the trust. 

The learned counsel for the Market Street Railway Com- 
pany evidently appreciates the necessity of convincing the 
court at the outset that the bequest in question is for a char- 
itable purpose in the strict legal sense of that term. Unless 
that point can be established, the claim of petitioner is over- 
thrown without further examination, for the reason that both 
devisee or trustee and the beneficiaries have disappeared. 

The main distinction between an ordinary trust and one for 
charitable uses is that the former is for a definite ascertained 
object, while the latter is favored and supported in equity by 
reason of the uncertainty of its object: 3 Am. & Eng. Ency. 
of Law, 132. 

Tried by this definition, the trust in question is not a char- 
ity. The purpose of the testator is plain. His intention, as 
shown by the language employed in his will, was to create a 
fund for the benefit of persons who were capable of being 
ascertained and recognized. 

The bequest was designed wholly and exclusively for the 
employees of the Omnibus Cable Company. There was no 
uncertainty as to the object of the devise. No dii^culty could 
possibly arise as to the persons who should share in the bene- 
fits. If the testator had said that this fund should be em- 
ployed in the purchase of reading matter designed for the 
education of certain named persons, it would not have been 

Prob. Dec, Vol. Ill —25 



386 Coffey's Probate Decisions, Vol. 3. 

more definite or certain than the description employed in his 
will by which the beneficiaries could at once be identified. 

The benefit of the devise is confined by its terms to a cer- 
tain number of people, and with as much exactness as if it 
had been limited to his own issue. 

The counsel cites a case in which this proposition is illus- 
trated : Dodge V. Williams, 46 Wis. 70, 1 N. W. 92, 50 N. 
W. 1103. 

In that case the court say, in speaking about the necessity 
that a charity should be uncertain: "This is beautifully illus- 
trated in the Jewish law, which required the sheaf to be left 
in the field for the needy and passing stranger." When the 
harvest was ended and the grain was about to be gathered 
into the barns, a sheaf was left for the first needy one that 
might come that way ; but the sheaf was not for the employee 
of any particular corporation. When the needy and passing 
stranger went into the field and proposed to take the sheaf, 
it was not required of him that he should exhibit his name on 
the payroll of some street railroad company. 

The illustration exhibits the difference between an ordinary 
trust and one designed for charitable purposes. 

The counsel also cites the remark of Perry, in his work on 
Trusts: "It is no charity to give to a friend." There can 
be no doubt that such is the accepted rule, and its applica- 
tion in this case becomes at once apparent when we find the 
learned counsel saying, in a subsequent part of his argument : 
"There can be no doubt that Mr. Hull intended to benefit the 
employees operating the lines of the Omnibus Cable Com- 
pany," 

It is evident that the design of ]\Ir. Hull was to confine his 
bequest to that particular class of persons to whom he felt 
under obligations. They had served the corporation of which 
he was a large stockholder, and he intended to create a fund 
in their interests. In other words, they were his friends, 
and his devise to them was as such, and its certainty was as- 
certainable by a simple reference to the payrolls of the com- 
pany. 

In short, this bequest cannot be considered a charity under 
any of the rules declared in the adjudged cases. 



Estate op Hull. 387 

There is neither trustee nor beneficiary competent to accept 
the devise in question. It is conceded that the Omnibus Cable 
Company, named in the will as the devisee of the fund in 
question, has passed out of existence. The learned counsel 
for petitioner concedes that at the oral argument this ques- 
tion was determined, and no attempt is made to combat the 
position then taken. If the Omnibus Cable Company ever 
had a soul, it has passed into the Market Street Railway Com- 
pany, and that other part which Dean Swift declared it could 
not have for the purpose of affront must have gone the same 
way. In other words, the Omnibus Cable Company has been 
wholly absorbed by the Market Street Railway Company, and 
it has no longer any legal existence which makes it capable of 
performing the purposes of a trust. 

It will be noticed that by the terms of the will the fund 
is to be controlled and managed by the directors of the Omni- 
bus Cable Company. Upon the completion of the consolida- 
tion the directors of the Omnibus Cable Company ceased to 
have any power or authority, and there is no means provided 
by law whereby they can be retained in office or their suc- 
cessors elected. Not only is it clear that the corporation, the 
^devisee named in the will, has ceased to have any being, but 
jit also appears that the officers or instruments by which the 
corporation could alone act have ceased to exercise any of the 
functions w^hich were absolutely requisite to the carrying out 
of the purposes of the testator. 

The counsel says that the franchise of the Omnibus Cable 
Company still exists. In this there is evidently a misunder- 
standing on the part of counsel of the purport and intent of 
the section of the Civil Code which provides for a consolida- 
tion. It is there provided that two or more railroad corpora- 
tions may consolidate their capital stock, debts, property, as- 
sets and franchises : Civ. Code, sec. 473. 

The consolidation of the franchises can mean nothing more 
nor less than the gathering together of the rights to live of 
all of the consolidating corporations. This seems to be con- 
ceded by the counsel for petitioner ; and it must be allowed 
that the Omnibus Cable Company went out of existence, and 
ceased to have any franchise or right to further existence, 
upon the completion of the consolidation. But not only did 



388 Coffey's Probate Decisions, Vol. 3. 

the corporation pass out of existence and cease to have any- 
being capable of either taking or executing a trust, but the 
beneficiaries named in the will ceased to occupy any such rela- 
tions to the trustee, or to any trustee that this court might 
appoint, as would enable them to claim the benefits of the 
fund. 

Recalling again the terms of the bequest, it is to be observed 
that its benefits are confined to the employees of the Omnibus 
Cable Company\ If that company has ceased to exist, and if 
it has no employees, then the bequest must fail. 

Take it that the Omnibus Cable Company, rather than con- 
solidate with the Market Street Railway Company, had chosen 
to dissolve and wind up its affairs, and under such proceed- 
ings its street railways had been sold to the Market Street 
Railway Company; it would be at once conceded that the de- 
vise now in question must fail, because of the nonexistence of 
the trustee and the total disappearance of the beneficiaries; 
and the same result has been accomplished by means of the 
consolidation. The Omnibus Cable Company has not only 
ceased to have any legal existence, but it has wholly and ab- 
solutely ceased to have any employees. The class of persons 
named in the devise no longer exists. That class has passed 
into and become part of another and wholly different class, 
and there is no possible way by which that class can be fol- 
lowed or identified. 

The testimony of Mr. Stein shows that the waiting-rooms 
maintained by the Market Street Railway Company are open 
to all the employees of that corporation. Any one of them 
has full liberty to go there and spend his leisure time, and if 
he be so disposed he can use any literature which may be in 
the room. 

It will be seen at once that it would not be practicable, if 
possible, to confine the use of the reading matter to the em- 
ployees named in the Avill, even if it should be construed, as 
claimed by petitioner, that the operators of the lines of road 
formerly owned by the Omnibus Cable Company are entitled 
to its benefit. All the other employees of the petitioner would 
be enabled to enjoy the use of the reading matter which was 
by the testator designed for a part only. This would be a 
diversion of the fund from the purpose intended by the tes- 



Estate of Hull, 389 

tator, such as would wholly destroy his design. In other 
words, the changed condition of things renders the execution 
of the testator's purpose impossible. The introduction of the 
emploj^ees of a number of other corporations into the room 
renders its use for the purpose contemplated by the testator 
wholly out of question, and this court could not, under any 
powers it may possess, regulate the .use in such a way as to 
confine it to the persons claimed by petitioner to be entitled 
to its benefits. 

The claim that the court can nominate a trustee, by whom 
the purposes of this devise can be accomplished is met at the 
very threshold by the insuperable objection that such trustee 
could not execute the purposes of the trust. He would be 
without power to either demand or require the thing com- 
mitted to his care. 

The will requires the expenditure of the income arising 
from a fixed sum in the maintenance of a reading-room. This 
reading-room is the property of a corporation, and any trus- 
tee other than the corporation could have no legal right to 
enter upon, use or occupy the reading-room. He could, by 
act of the corporation, be precluded from any entry into the 
room for any purpose whatever. But it may be urged that 
the petitioner could be named the trustee. To this proposi- 
tion the answer is apparent. The Market Street Railway 
Company has no capacity to execute such a trust. 

The Omnibus Cable Company, named in the will, and the 
Market Street Railway Company are admitted to be street 
railroad corporations, organized under the provisions of the 
Civil Code of this state, and having only the powers con- 
ferred on such corporations : Civ. Code, sees. 354, 510 et seq. 

When we look at the provisions of the code, it will at once 
be seen that a street railroad corporation cannot be endowed 
with the powers, duties or responsibilities of an eleemosynary 
or charitable institution. That this must be true is shown 
by the very nature of the trust which is undertaken by this 
will to be imposed upon the devisee. 

Whether a trust can be accepted or held valid is determined 
by the relations which the parties making and accepting the 
trust bear to the subject matter. 



390 Coffey's Probate Decisions, Vol. 3. 

It is conceded that Edward Hull could create a trust, but 
it is denied that he could constitute a street railroad com- 
pany a trustee, because the trustee could not either accept 
or carry out the trust. In other words, neither the Omnibus 
Cable Company nor the petitioner ever had any legal capacity 
to accept or perform the purposes of the trust designated in 
the will of Edward Hull. 

By reference to the articles of incorporation of the Omni- 
bus Cable Company, and of the petitioner, it will be seen that 
each was formed wholly for the purpose of building and 
operating certain lines of street railroads, and of holding 
property required for the purpose of such railroads. The 
entire absence from the articles of incorporation of any dec- 
laration of a purpose to either accept or perform a trust must 
be apparent. 

It has been frequently decided, and will be accepted as the 
I'ule, that a corporation has and can exercise no powers be- 
yond those specified in its charter; and, failing to find any- 
(hing in the charter or articles of incorporation of either of 
Ihese corporations authorizing them to either accept or per- 
form this trust, it must be conceded that the devise fails: 
Thomas v. Railroad Co., 101 U. S. 71, 25 L. Ed. 950. 

Whether a corporation can take a devise depends not only, 
as we have seen, upon its charter or its articles of incorpora- 
tion, but also upon the relations which, by its acceptance, 
would be established between the corporation and the bene- 
ficiaries; and, in consideration of this question, we are at once 
confronted with the proposition that if the devise be lawful 
there must, in the very nature of things, be a corresponding 
remedy or right to its enforcement on the part of the bene- 
ficiaries. 

If the Omnibus Cable Company, or the petitioner, took this 
devise and received the money, would it be possible for any 
employee to compel that corporation to maintain the reading- 
room in the will mentioned? It must be evident at once that 
no such order could be made, because of the simple fact that 
the corporation was not created for any such purpose. This 
would be a full and sufiicient reply to any attempt on the part 
of any employee. 



Estate of Hull. 391 

No stoekholder of the corporation could be held for his pro- 
portion of the responsibility happening because of the failure 
of the company to properly dispose of the fund. If sued 
upon any such claim, the stockholder would necessarily reply 
that no such obligation as that imposed by the devise in this 
case was either expressed or contemplated in the creation of 
the corporation of which he became a stockholder. 

As a result, from the foregoing considerations, it is con- 
eluded by the court: 

1. That the bequest was not for charitable purposes. 

2. That the Omnibus Cable Company, named in the will as 
devisee, passed out of existence during the lifetime of the 
testator, and no intention appears to substitute another in its 
place : Civ. Code, sec. 1343. 

3. That by the consolidation of the several railroad cor- 
porations which were merged in and formed the Market 
Street Railway Company, the Omnibus Cable Company not 
only ceased to exist, but it is impossible for it to have any 
employees, and there are no longer any beneficiaries who 
could claim the benefit of the devise. 

4. The Omnibus Cable Company was, and the petitioner 
is, unable to accept or perform the trust attempted to be 
created by the will. 

5. This court is not able to name a trustee by whom the 
trust could be performed. 

"Formerly the doctrine of cy pres was pushed to a most 
extravagant length; but that is now much restrained. If the 
charitable object is incapable of taking place at the time of 
the testator's death, the court is not to look out and substi-r 
tute another, as they did formerly. Thus, in the case of 
Wheatley Church, it was pressed that the testator had a rage 
for building churches anywhere ; Lord Kenyon said there was 
no such object ; it was intended only for a particular parish ; 
and, as it could not take effect there, it could not be anywhere 
else": Attorney General v. Minshull, 4 Ves. Jr. 14. 

In 1 Drewry's Reports, pages 642, 644 (High Court of 
Chancery, 1853), in the case of Clark v. Taylor, where the 
testator gave "to the treasurer for the time being of the 
Female Orphan School in Greenwich aforesaid, patronized by 
Mrs. Enderby, the sum of fifty pounds for the benefit of that 



392 Coffey's Probate Decisions, Vol. 3. 

charity," Mrs. Enderby's school was discontinued; and the 
eourt held that the legacy lapsed. The vice-chancellor said 
(page 644) : "The question is, whether the gift in this will 
is to be considered as a gift intended for charitable purposes 
generally, or whether it was simply intended for the benefit 
of a particular private charity. Now, there is a distinction 
well settled by the authorities. There is one class of cases 
in which there is a gift to charity generally, indicative of a 
general charitable purpose, and pointing out the mode of 
carrying it into effect ; if that mode fails, the court says the 
general purpose of charity shall be carried out. There is an- 
other class, in which the testator shows an intention, not of 
general charity, but to give to some particular institution; 
and then if it fails, because there is no such institution, the 
gift does not go to charity generally. That distinction is 
clearly recognized ; and it cannot be said that wherever a gift 
for any charitable purpose fails, it is nevertheless to go to 
charity." 

The chancellor continued, stating that this legacy was in- 
tended for a particular institution, and, that institution hav- 
ing gone out of existence, the legacy lapsed and fell into the 
residue of the estate. 

i In volume 4 of Equity Cases, 521, 527, in the case of Fiske 
V. Attorney General, it was held, where testatrix gave one 
thousand pounds "to the treasurer for the time being of the 
Ladies' Benevolent Society of Liverpool, to be by him held 
and applied as part of the ordinary funds of said societj^" 
and the Ladies' Benevolent Society of Liverpool, in the year 
1864, was dissolved and brought to a close, and the testatrix 
died March 1, 1866 (page 527), that when a gift is made by 
will to a charity which has expired, it is as much a lapse as 
a gift to an individual who has expired, and the legacy of 
one thousand pounds given to the Ladies' Benevolent Society 
lapsed and fell into the residue. 

In the case of Marsh v. Means, in volume 3, part 1, of The 
Jurist (New Series), page 790, the testator, Fenner, by his 
will dated in 1834, gave three hundred pounds "to be ap- 
plied, after the decease of his wife, for continuing the periodi- 
cal published under the title of the 'Voice of Humanity,' 
according to the objects and principles which are set forth in 



Estate op Hull. 893 

the prospectus contained in the third number of that publica- 
tion, the money to be paid to a treasurer to be appointed at 
a meeting of the association at Exeter Hall." 

The "Voice of Humanity" was being published when the 
will was made. The publication, and the society whose organ 
it was, subsequentl}^ and before the death of the testator's 
wife, which occurred in 1855, went out of existence. The 
chancellor, in deciding the case, said: "It would, I think, 
have fallen within the description of charity, if this periodi- 
cal had been subsisting at the date of the will and afterward 
ceased. That would be simply a case where, the particular 
intention having failed, the general intention must be car- 
ried out. At the date of the will, however, had the bequest 
then immediately taken effect, there would have been the 
probability of getting the same persons together to carry it 
on who had established it. But the gift, so far from taking 
effect then, did not even take effect immediately on his de- 
cease, but only after his wife's decease. Not only has the 
periodical itself ceased, but the association, whose organ and 
property it was, has perished. I must hold that this legacy 
has lapsed and failed, and cannot be applied cy pres. " 

In the case of Crum v. Bliss, 47 Conn. 593, 603, a bequest 
was made to a charitable corporation located in the state of 
Pennsylvania. After the will was made, and before the death 
of the testator, the legislature of Pennsylvania authorized 
the corporation to transfer its entire property and franchise 
to a corporation established in the state of New York for the 
same charitable purpose, which corporation was to become its 
legal successor, and hold and enjoy all its corporate fran- 
chises and powers. The legislature of New York authorized 
the New York corporation to receive the property and fran- 
chise of the Pennsylvania corporation. The transfer was 
effected, and the New York corporation thereafter carried 
on, and at the time of the testator's death was carrying on, 
the same charitable work that had been carried on by the 
Pennsylvania corporation, using the same means and employ- 
ing the same agencies. The legacy was a general one, with 
no directions as to the objects for which or the class of per- 
sons for whose benefit the money was to be applied. Held 
that the legacy lapsed. The court, in its opinion, said that 



394 Coffey's Pbobate Decisions, Vol. 3, 

a case could not be found in all the books where it has been 
held that one corporation can exercise the discretion confided 
to another. To sanction this would be an altering of the tes- 
tator's will. 

In conclusion, in the language of the court in the case of 
Smith V. Smith, 141 N. Y. 34, 35 N. E. 1075: "The expecta- 
tions of a testator and his intentions may be two different 
things. He never expects that any of the dispositions of his 
will are void, and he rarely expects that any of the devises 
and bequests will lapse. But when he attempts to dispose 
of all the property he may own at his death, he never in- 
tends to die intestate, and he intends that a general resid- 
uary clause shall carry whatever, as matter of fact or law, 
is not otherwise disposed of." 

So in this case it may be said that the unexpected to the 
testator happened. The corporation to whom the trust was 
confided and the beneficiaries both went out of existence. At 
the time of drawing his will such a thing could not have been 
reasonably expected to happen. It occurred too close to his 
death, and his end came so suddenly and unexpectedly that 
no change was made in his will; and hence this legacy has 
lapsed, and goes to the residuary legatees. 



Estate of WILLIAM T. GARRATT. 

[No. 9,293; decided May 24, 1892.] 

Ademption. — Ademption is the Revocation of a Grant, Donation, or 
the like, especially the lapse of a legacy, by the testator's satisfying 
it by delivery or payment to the legatee before his death, or by his 
otherwise dealing with the thing bequeathed so as to manifest an 
intent to revoke the bequest. 

Ademption. — To Adeem is to Revoke a Legacy either by implica- 
tion, as by a different disposition of the bequest during the life of 
the testator, or by satisfaction of the legacy in advance, as by deliv- 
ery of the thing bequeathed, or its equivalent, to the legatee during 
the lifetime of the legator, A specific legacy may be adeemed; if 
the subject of it is not in existence at the time of the testator's 
death, then the bequest entirely fails. 



Estate of Garratt. 395 

Ademption. — The Question of Ademption is Purely One of Fact and 
not of intention, differing in tliia respect from revocation, which ia 
purely one of intent. 

Ademption. — Ademption is the Extinction or Withholding of a Legacy 
in consequence of some act of the testator, which, though not directly 
a revocation of the bequest, is considered in law as equivalent 
thereto or indicative of an intention to revoke. The ademption of a 
specific legacy is effected by the extinction of the thing or fund, 
without regard to the testator's intention; but where the fund re- 
mains the same in substance, with some unimportant alteration, 
there is no ademption. 

Ademption. — The Very Thing Bequeathed must be in Existence at 
the death of the testator and form part of his estate, otherwise the 
legacy is wholly inoperative. 

Ademption — Change Worked by Organization of Corporation. — Where 
the owner of land devises the same, together with the buildings and 
business thereon conducted, and thereafter organizes a corporation 
and leases the property to it, he being the principal stockholder in 
the corporation and continuing to manage the business as before, 
there is no change in the substance of the property, and on his death 
the devisees and legatees named in his will are entitled to a dis- 
tribution of the property as therein specified. 

B. Noyes and Lloyd & Wood, for Benjamin F. Garratt, the 
petitioner. 

John A. Wright, for William T. Garratt, 'Jr. 

L. H. Sharp and H. A. Powell, for Anna G. Garratt, widow 
and residuary legatee. 

COFFEY, J. The court has been favored with approxi- 
mately one hundred pages of briefs and an equal number of 
pages of oral statement, argument and testimony in this mat- 
ter, and it is proper to say that both sides of the controversy 
have been presented with exemplary clearness and ability. 
It has been most thoroughly and fairly discussed, and what- 
ever difficulty the court labors under in deciding the points 
at issue is due to the strength with which the respective coun- 
sel have presented their opposing theories. 

This is an application for distribution before close of ad- 
ministration under section 1658 of the Code of Civil Pro- 
cedure. 



393 Coffey's Probate Decisions, Vol. 3. 

The application depends upon a certain clause in the will 
of William T. Garratt, who died on January 14, 1890, in San. 
-Francisco. The will bears date April 4, 1883, at which time 
the testator was the owner of a brass foundry on the corner 
of Fremont and Natoma streets in San Francisco, with the 
land upon which the foundry was situated, the buildings, 
stock, tools, machinery and fixtures, and all the appurtenances 
of such a business. 

The will is here inserted in full: 

"San Francisco, April 4, 1883. 

"This is my last will disposing of my worldly effects. 

"To my daughter Emma the residence property she now 
resides in, also the springs and lands known as the California 
Seltzer Springs, and the sum of ten thousand dollars. To my 
daughter Amelia the residence property she now resides in, 
also the five-acre lot in Oakland, and the sum of ten thousand 
dollars. To my daughter Clara the lot on Howard street, 
between Twenty-second and Twenty-third streets. 

"To my daughter Julia the lot on Fremont street, between 
Howard and Folsom streets, also the sum of ten thousand 
dollars. To my daughter Mary Alice all interest I have and 
am to have in the two fifty-vara lots on Bryant street, be- 
tween 4th and 5th streets. The land known as the tide lands 
to be equally divided with Emma, Amelia, Clara, Julia and 
Mary Alice, hoping that it will be kept as a whole for many 
j^ears. 

"To my brother Benjamin F. Garratt, and my son William, 
and my son Milton, the business and real and personal prop- 
erty corner of Fremont and Natoma streets, consisting of 
buildings, land and tools and stock, with what stock may 
be at the different agencies, the monej^s bequeathed in this 
my last will to be paid out of the moneys due me on book 
accounts and to be paid in equal installments of one-third and 
to be paid in three j^ears, my just debts to be paid first, and 
the balance of the book accounts to be equally divided or left 
as a whole to the firm of William T. Garratt & Co., consist- 
ing of my brother Benjamin, my son William and my son 
Milton, the firm to allow my father, Joseph Garratt, the sum 
of seventy-five dollars for each and every mouth of his lifej 



Estate of Garratt. 397 

and also the sum of five thousand dollars to my sister Rose, 
and three thousand dollars to Miss Ellen Little, these sums 
to be paid in three installments, same as above mentioned. 
To my wife Anna all my stocks, consisting of insurance and 
steamboat and railroad, and my life insurances, together with 
the homestead property of every kind. To my son William 
and my son Milton the land and buildings known as Nos. 513 
and 515 Market street, near First. My wife Anna to take 
charge for William and Milton, collect or have collected the 
rents, and use the same, if needed, for William and ]Milton's 
benefit; all property not mentioned, real or personal, to my 
wife Anna. In case of my wife's death, then the property, 
both real and personal, to be divided as follows, this being 
the property left for my wife Anna: To my daughter Emma 
my life insurance in the Connecticut Mutual Insurance Com- 
pany, amount ten thousand dollars. To my daughter Amelia 
my steamboat stock in the California Steam Navigation Com- 
pany, excepting one hundred shares I leave for Capt. Do- 
mingo Mareucci. To my daughter Clara one-half of the lots 
and buildings now used as the homestead, No. 405 Sixth 
street, the other half of the lots and building No. 405 Sixth 
street, and all the furniture and personal property, to be 
divided as follows, excepting wdiat I shall dispose of as per 
schedule attached : My sons-in-law, William A. Allen and 
James Bond, to have my books in library and book-cases, and 
portraits of the family to go to each as painted for, the other 
painted by Nahl to go to my son William, those painted by 
Wise to go to my son Milton. My scrap books to my brother 
Benjamin, with what cabinet I may have including my desk 
and papers in the library desk meant the writing table and 
fixtures, and what is in the laboratory to go to the firm of 
W. T. Garratt & Co. ; I prefer this style of the firm to be 
kept; the personal and one-half of the homestead lots and 
buildings. No. 405 Sixth street, to be disposed of as follows: 
To my daughters Emma and Amelia and Julia each to have 
one-third, and any property not mentioned that would of be- 
come the property of my wife Anna by this my last will to 
be divided between my daughters Emma, Amelia and Julia. 
I appoint my wife Anna to take charge and administer on the 
same, and without bonds, and in case of her death then my 



398 Coffey's Probate Decisions, Vol, 3. 

brother Benjamin F. Garratt, and my father Joseph Garratt, 
and without bonds; the word Emma was written in the mar- 
gin before signing. 

"W. T. GARRATT. 

"Witness, GEO. W. GATES. 

"Witness, ARCHIBALD L. TAYLOR." 

The clause under which this application is made is as fol- 
lows : 

"To my brother Benjamin F. Garratt, and my son Will- 
iam, and my son Milton, the business and real and personal 
property corner of Fremont and Natoma streets, consisting 
of buildings, land and tools and stock, with what stock may 
be at the different agencies, the moneys bequeathed in this 
my last will to be paid out of the mone^^s due me on book 
accounts and to be paid in equal installments of one-third 
and to be paid in three years, my just debts to be paid first, 
and the balance of the book accounts to be equally divided 
or left as a whole to the firm of W. T. Garratt & Co., con- 
sisting of my brother Benjamin, my son William, and my son 
Milton." 

At the time of making this will the sole constituent of the 
firm of W. T. Garratt & Co. was the testator himself. 

It is manifest, therefore, that in mentioning the names of 
his brother and sons as members of the firm he was alluding 
to the future. About two years after executing the will he 
conceived the idea of incorporating the business, and a cor- 
poration was formed bearing the name of W. T. Garratt & 
Co., in which the testator was the prime mover, holding about 
four-fifths of the stock. Shortly thereafter, and on June 15, 
1885, the testator executed a lease and agreement between 
himself, W. T. Garratt, as party of the first part, and the 
corporation, W. T. Garratt & Co., as party of the second part, 
whereby he leased this business and personal property, not 
including the real property upon which it was situate, to the 
corporation for nine years at an annual rent of $20,111.11, 
or an aggregate sum of $181,000, and provided that when the 
last payment should have been made, with interest at four 
per cent per annum on overdue payments, he would execute 
a bill of sale to the corporation, or the property should be- 



Estate of Garratt. 399 

come the property of the corporation, in which he was at that 
time and continued to be the chief stockholder, owning almost 
the entire body of stock. In that agreement he included two 
thousand three hundred and ninety shares of the capital stock 
which he agreed to transfer to the corporation, thus virtually 
retiring so much of the stock and leaving in his own name 
fifteen hundred and fifty-six shares. He died a few years 
thereafter. Up to the time of his death testator continued 
in the business and managed and directed the operations of 
the corporation in much the same manner as he had done 
prior to its creation. At the time of his death some of the 
annual rents were overdue and unpaid, $72,000 or there- 
abouts, and the remainder was to become due. 

The first question presented by this proceeding, according 
to the claim of the petitioner for partial distribution, is, To 
whom does the money due and to become due from the cor- 
poration to W. T. Garratt, for the rent of the business, go 
by the terms of the will? 

Counsel for petitioner claim that section 1301 of the Civil 
Code furnishes the answer to this question. That section 
reads as follows: "An agreement made by a testator, for the 
sale or transfer of property disposed of by a will previously 
made, does not revoke such disposal; but the property passes 
by the will, subject to the same remedies on the testator's 
agreement, for a specific performance or otherwise against 
the devisees or legatees, as might be had against the testator's 
successors, if the same had passed by succession." 

Counsel for petitioner contend that inasmuch as the prop- 
erty was agreed to be sold, not sold, by testator to the cor- 
poration, the M'hole subject of the bequest passes to petitioner 
Hnd the two other legatees, subject only to such remedies as 
the corporation is entitled to upon said agreement of lease and 
sale. Section 1301 gives the petitioner and his colegatees not 
the claim against the vendee but the property itself, in specie, 
limited only by the right of the vendee to complete the in- 
choate purchase. 

Counsel for residuary legatee contend, on the contrary, that 
the quoted section of the Civil Code does not apply to the case 
at all; and they insist the only question involved is one of 
ademption of legacies. Section. 1301, Civil Code, and the sue- 



400 Coffey's Probate Decisions, Vol. 3. 

ceeding sections, by their terms, apply to questions of revoca- 
tion and not to ademption. 

In law, says the dictionary, ademption is the revocation of 
a grant, donation, or the like, especially the lapse of a legacy, 
(1) by the testator's satisfying it by delivery or payment to 
the legatee before his death; or (2) by his otherwise dealing 
with the thing bequeathed so as to manifest an intent to re- 
voke the bequest. 

To adeem is to revoke a legacy either by implication, as by 
a different disposition of the bequest during the life of the 
testator, or by satisfaction of the legacy in advance, as by 
delivery of the thing bequeathed, or its equivalent, to the lega- 
tee during the lifetime of the legator. A specific legacy may 
be adeemed ; if the subject of it be not in existence at the time 
of the testator's death, then the bequest entirely fails. 

The question of ademption is purely one of fact and not of 
intention, differing in this respect from revocation, which is 
purely one of intent. 

Bouvier says that ademption is the extinction or withhold- 
ing of a legacy in consequence of some act of the testator, 
which, though not directly a revocation of the bequest, is con- 
sidered in law as equivalent thereto or indicative of an inten- 
tion to revoke. The ademption of a specific legacy is effected 
by the extinction of the thing or fund, without regard to the 
testator's intention; but where the fund remains the same 
in substance, with some unimportant alteration, there is no 
ademption. 

The very thing bequeathed must be in existence at the death 
of the testator and form part of his estate, otherwise the leg- 
acy is wholly inoperative. 

Did the property bequeathed to the petitioner here form a 
part of the estate of William T. Garratt? Counsel for resid- 
uary legatee claim that by the contract in evidence here Will- 
iam T. Garratt had parted with all beneficial interest in the 
property to William T. Garratt & Co., the corporation; that 
the interest which W. T. Garratt held at the time of his death 
was a right to the money agreed to be paid ; that the only in- 
terest which he held in the property itself was the naked legal 
title, simply for the purpose of securing to him the payment 
of the money due from W. T. Garratt & Co. ; that he had no 



Estate of Garratt. 401 

beneficial interest in the property, and that none could or did 
pass by his will to the petitioner; that inasmuch as the prop- 
erty itself, the beneficial interest therein, was not in William 
T. Garratt, it cannot pass to petitioner; that it being a spe- 
cific bequest he cannot have money due upon the contract, nor 
can he have the shares of capital stock which he claims of 
W. T. Garratt & Co. ; that the only thing which he takes is 
the naked legal title in trust for the beneficiary who is en- 
titled to the purchase money under the residuary clause of the 
will. 

Mr. John A. Wright, of counsel for William T. Garratt, Jr., 
in a brief filed by him, declares that the whole controversy is 
( ontrolled by the provisions of sections 1303 and 1304 of the 
Civil Code, and not by the provisions of section 1301 of the 
Civil Code, as asserted by the briefs of counsel for Benjamin 
F. Garratt. 

Section 1303 of the Civil Code provides that any ''act of 
a testator by which his interest in a thing previously disposed 
of by his will is altered but not wholly devested is not a revo- 
cation, but the will passes the property which would other- 
wise devolve by succession"; and section 1304 provides for 
an exception to this general rule in cases where the subsequent 
instrument expresses the testator's intent to revoke his will 
thereby or contains provisions wholly inconsistent therewith. 

Mr. Wright considers that the court is dealing with such a 
ease as is provided for by section 1303. 

I am inclined to the opinion that there was no change in 
the substance of the property possessed by the senior Mr. Gar- 
ratt at the time of making his will, and that the corporation, f 
'>vith all its powers, franchises and privileges, was only Will- ^ 
iam T. Garratt under another name; indeed the name itself, 
of which he was justly proud and desirous of perpetuating, 
remained the same, and the control, management and direc- 
tion of affairs was in no material respect altered or modified 
until after his death. 

The court agrees with the counsel for petitioner and adopts 
his argument and conclusions as hereinunder expressed. 

The only change in the testator's business arrangements 
which can be claimed as an evidence of change of intention, 

Prob. Dec, Vol. Ill — 26 



402 Coffey's Probate Decisions, Vol, 3. 

as expressed in the will, was the incorporation of W. T. Gar- 
ratt & Co., a corporation. 

That the testator did not consider his position in any re- 
spect different after the formation of the corporation is evi- 
dent from the fact that he continued to manage and direct 
the affairs of the business; his word was law, and, while his 
acts were sometimes ratified by the board of directors, they 
were never questioned by anyone. Mr. Taylor, an employee 
of the corporation, kept his private books as he had done be- 
' fore. The testator leased the personal property to the cor- 
poration for nine years, and by a separate instrument leased 
to it the real estate for five years, which last-named lease has 
expired. It is not reasonable to suppose that he intended to 
leave to one person the land, and to another a majority of 
the capital stock in the corporation which occupies said land 
with its extensive works, and which at this moment has no 
agreement as to the rent it shall pay. 

The expiration of the lease of the real estate has left the 
corporation entirely at the mercy of the devisees of the land 
as to the amount of rent it must pay, and has made the cor- 
poration liable to be turned out of possession at short notice. 
To a business of the nature of Mr. Garratt's this might be 
disastrous, and it cannot be said that testator meant to so dis- 
pose of his property as to leave such conflicting interests. 

On the other hand, to hold that the testator meant his in- 
terests as stockholder and tenant, as well as his interest as 
landlord, to become vested in the same hands, will avoid any 
such complication as the one just referred to, and would seem 
to carry into effect the testator's wishes. 

It seems to the court, as it did to counsel for petitioner, 
that "an intelligent effort to ascertain what the writer (tes- 
tator) meant" can result in no other conclusion than that Mr, 
Garratt, after the formation of the corporation, considered 
that m.atters stood on about the same footing as before, and 
expected and wished that his brother and sons should become 
the owners, not only of the land on which the foundry stood, 
but of all his interests in the foundry itself, which interest at 
the time of his death consisted of three thousand nine hun- 
dred and forty-six shares out of five thousand shares of the 
corporation's capital stock; of said three thousand nine hun- 



Estate of Garratt. 403 

dred and forty-six shares two thousand three Iiundred and 
ninety shares were included in the agreement of sale to the 
corporation. 

If these views be correct, the petitioner herein is entitled 
to one-third of the following described property: 

First — The real estate, corner of Fremont and Natoma 
streets, fully described in the inventory, together with the 
rent accrued thereon since the death of testator; 

Second — The business, stock, tools, etc., owned by the tes- 
tator on April 4, 1883, together with similar property by 
which it has been replaced; subject, however, to the right of 
W. T. Garratt & Co., a corporation, to purchase the same on 
payment of the unpaid portion of the rent specified in the 
lease introduced in evidence as Exhibit "D"; 

Third — Three thousand nine hundred and forty-six shares 
of the capital stock of W. T. Garratt & Co., a corporation, sub- 
ject to the right of said corporation to purchase two thousand 
three hundred and ninety shares thereof, as provided in said 
Exhibit "D." 

Let a decree be drawn in conformity with these conclusions. 



ADEMPTION OF LEGACIES. 

Ademption Defined. — "Ademption is the technical term used to de- 
scribe the act by which a testator pays in his lifetime to his legatee 
a general legacy which, by his will, he had proposed to give him at 
death; or else the act by which a specific legacy has become inopera- 
tive, on account of the testator having parted with the subject": 
Cozzens v. Jamison, 12 Mo. App. 452. See, also, Connecticut Trust 
etc. Co. V. Chase (Conn.), 55 Atl. 171. Notwithstanding the clear- 
ness and conciseness of this definition, it is, nevertheless, often con- 
fused with advancement and satisfaction, and used interchangeably 
with these terms. The doctrine of advancement applies only in cases 
of intestacy, or where the testator in his will has directed that prop- 
erty given to his children in his lifetime should be accounted for by 
them: Allen v. Allen, 13 S. C. 512, 36 Am. Kep. 716; McFall v. 
Sullivan, 17 S. C. 504. The distinction between ademption and sat- 
isfaction is pointed out by Lord Eomilly to be as follows: "In 
ademption, the former benefit is given by a will, which is a revoca- 
ble instrument, and which the testator can alter as he pleases, and 
consequently when he gives benefits by a deed subsequently to the 
will, he may, either by express words, or by implication of law, 
substitute a second gift for the former, which he has the power of 
altering at his pleasure. Consequently, in this case the law uses 
the word 'ademption,' because the bequest or devise contained in the 



404 Coffey's Probate Decisions, Vol, 3. 

will is thereby adeemed, that is taken out of the will. But when 
a father, on the marriage of a child, enters into a covenant to settle 
either land or money, he is unable to adeem or alter that covenant, 
and if he gives benefits by his will to the same objects, and states 
that this is to be in satisfaction of the covenant, he necessarily 
gives the objects of the covenants the right to elect whether they 
will take under the covenant, or whether they will take under the 
will. Therefore, this distinction is manifest. In eases of satisfac- 
tion the persons intended to be benefited by the covenant, who, for 
shortness, may be called the objects of the covenants, and the per- 
sons intended to be benefited by the bequest or devise — in other 
words, the objects of the bequest — must be the same. In cases of 
ademption they may be, and frequently are, different": Chichester 
v. Coventry, L. E. 2 H. L. Cas. 17. And see Tussaud v. Tussaud, 
9 Ch. D. 363; Cooper v. McDonald, L. E. 16 Eq. 258. 

The doctrine of ademption has no application to property taken 
by descent, but only to that taken by devise: Stokesberry v. Eey- 
nolds, 57 Ind. 425. 

Ademption by Advancement to the Testator's Children. — One of the 
most common modes of ademption is by the advancement of a por- 
tion to a legatee by one standing in loco parentis to him. It is uni- 
versally recognized as the common law that where, in such cases, an 
advancement takes place, it is the presumption that it is intended in 
lieu of the legacy, which is to be regarded as a portion; and the 
reason for this rule is stated itf Eichardson v. Eveland, 126 111. 37, 
18 N. E. 308, as follows: "The rule is based upon the equitable pre- 
sumption that a parent, or one standing in loco parentis, and owing 
a like natural duty to all of his children, would not, after having 
voluntarily established the portion each should receive of his estate, 
take from one to his detriment, for the purpose of benefiting another. 
The natural obligation of the parent to provide for his offspring 
is an imperfect obligation, and the portion of each child remains 
wholly under the control of the testator, and may be changed at his 
pleasure. The rule is based upon the presumed intention of the tes- 
tator, where he owes a like common obligation to all, not to give 
one of the objects of his bounty a double portion of his estate to 
the injury of the others. The rule was created by courts of equity on 
account of their leaning, as it is said, against double portions, and 
to facilitate the equitable distribution of estates. Hence, if a legacy 
be given by a parent, or one standing in loco parentis, and the tes- 
tator afterward makes an advancement, or gift, of money or prop- 
erty ejusdem generis, to the same beneficiary, the presumption will 
arise that the gift was intended in satisfaction of, or substitution 
for, the prior legacy, and unless this presumption be rebutted, an 
ademption in full, or pro tanto, as the gift is equal to, or less 
than, the prior benefit, will take place. When the equitable presump- 
tion arises, and the rule applies, the ademption, in whole or in part, 
is complete by the act of the donor in conferring the two benefits, 



Estate of Garratt. 405 

from whicli the intention of substitution is implied." In accord 
with this are Eogers v. French, 19 Ga. 316; Haywards v. Leper, 147 
111. 41, 35 N. E. 798; Low v. Low, 77 Me. 37; "Wallace v. DuBois, 
65 Md. 153, 4 Atl. 402; Paine v. Parsons, 14 Pick. 318; Van Houtcn 
V. Post, 32 N. J. Eq. 709, 33 N. J. Eq. 344; Langdon v. Astor, 16 
N. y. 9, 3 Duer, 477; Matter of Townsend, 5 Dem. (N. Y.) 147; 
Hine v. Hine, 39 Barb. 507; Gill's Estate, 1 Pars. Eq. Cas. (Pa.) 
139; Swoope's Appeal, 27 Pa. 58; Watson v. Lincoln, Amb. 325; 
Clarke v. Burgoine, Dick. 353; Suisse v. Lowther, 2 Hare, 424; In re 
Peacock's Estate, L, E. 14 Eq. 236; Hopwood v. Hopwood, 7 H. L. 
Cas. 728; Pym v. Lockyer, 5 Mylue & C. 29; Booker v. Allen, 2 
Euss. & M. 270; Piatt v. Piatt, 3 Sim. 503; Scotton v. Scotton, 1 
Strange, 235; Barrett v. Rickford, 1 Ves. Sr. 510; Ellison v. Cookson, 
1 Ves. Jr. 100; Hinchcliffe v. Hinchcliffe, 3 Ves. Jr. 516; Trimmer v. 
Bayne, 7 Ves. Jr. 508; Robinson v. Whitley, 9 Ves. Jr. 577; Hartopp 
V. Hartopp, 17 Ves. Jr. 184. 

The most usual event upon which an advancement is held to work 
an ademption of the bequest is the marriage of the legatee: Eoberts 
V. Weatherford, 10 Ala. 72; Paine v. Parsons, 14 Pick. (Mass.) 318; 
Richardson v. Richardson, Dud. Eq. (S. C.) 184; Hartop v. Whit- 
more, 1 P. Wms. 681; Dawson v. Dawson, L. R. 4 Eq. 504; Nevin 
V. Drysdale, L. R. 4 Eq. 517; Carver v. Bowles, 2 Russ. & M. 301; 
Jenkins v. Powell, 2 Vern. 115. It is, however, not necessary that 
the gift be made on marriage or any other special occasion with 
reference to the donee: Leighton v. Leighton, L. R. 18 Eq. 458; and 
where a father declared that his daughter should have more on his 
death, a gift upon her marriage is no satisfaction of a prior legacy: 
Debeze v. Mann, 2 Bro. C. C. 165, 1 Cox, 346. 

Money expended on the education of a child during the testator's 
lifetime, whether general or professional, is not an advancement 
within the meaning of the rule: Bird's Estate, 132 Pa. 164, 19 Atl. 
32; CooTier v. May, 3 Strob. Eq. (S. C.) 185; White v. Moore, 23 
S. C. 456. 

For an advancement to work an ademption, it must be certain, 
and not merely contingent, and be of the same character as the 
legacy: Benjamin v. Dimmick, 4 Redf. (N. Y.) 7; but small gifts 
of money made from time to time are not to be taken into account: 
Schofield V. Heap, 27 Beav. 93; Watson v. Watson, 33 Beav. 574; 
In re Peacock's Estate, L. R. 14 Eq. 236. So, where there is a great 
disparity between the gift made inter vivos and the legacy, the latter 
being largely in excess of the former, such gift will not be regarded 
as a portion, or an advancement so as to work an ademption, in the 
absence of any showing of the testator's intention to that effect: 
State V. Crossley, 69 Ind. 203. 

The advancement must be one for the benefit of the legatee in 
fact, and not merely colorable; so where a testator gave his daugh- 
ter an unconditional bond, payable immediately, but he always kept 
it, Ms object being to screen himself from taxes, and it was so re- 



406 Coffey's Probate Decisions, Vol. 3. 

garded by the daughter, and by will he gave portions to all hi3 
daughters, it was held that, upon his death, it should be set aside, 
and that that daughter might take with the rest: Ward v. Lant, Prec. 
Ch. 182. 

The gift made may also be an imperfect one and be perfected by 
will, as where the will recites that the testator has given all he in- 
tended to give to certain legatees, and taken their notes therefor, 
which the executors were directed to deliver up as satisfied and dis- 
charged; this was held to operate as a gift to one of the legatees 
of a note executed by him for money not at the time intended as a 
gift, and which both maker and payee expected to be paid: Tillotson 
V. Eace, 22 N. Y. 122; and see, also, Lawrence v. Mitchell, 48 N. C. 
(3 Jones L.) 190. 

Ademption by Advancement to Strangers. — The rule holding that 
advancements to children by one standing in loco parentis is peculiar 
in this, that strangers are more favored than the testator's own chil- 
dren, for gifts to the former can in no wise be considered a portion, 
but rather a bounty, and so they are held to be, not in satisfaction 
of a legacy given by a prior will, but cumulative, and the presump- 
tion is in favor of the latter: Eogers v. French, 19 Ga. 316; Richardson 
V. Eveland, 126 111. 37, 18 N. E. 308; Evans v. Beaumont, 4 Lea 
(Tenn.), 599; Powel v. Cleaver, 2 Bro. C. C. 499; Suisse v. Lowther, 
2 Hare, 424. This rule has been the subject of much adverse criti- 
cism on account of its harshness, but has nevertheless been followed 
as a correct exposition of the common law, unless altered by statute. 
By statute in Kentucky, strangers and children of the testator were 
put on the same footing as to advancements: Duncan v. Clay, 13 
Bush, 48; and in California it is provided that "advancements or 
gifts are not to be taken as ademptions of general legacies, unless 
such intention is expressed by the testator in writing"; Cal. Civ. Code, 
sec. 1351; thus removing an unjust presumption against the testator's 
children. 

By Whom and to Whom Made. — It is not necessary that the ad- 
vancement be made directly by the testator; so where he procures a 
third person to convey property to his daughter, for a consideration 
moving from himself, the presumption is that it is meant isi satis- 
faction of the legacy, the same as when he himself conveys: Piper 
v. Barse, 2 Redf. (N. Y.) 19. 

As to whether a gift to a son in law is to be considered as an ad- 
vancement, there is some conflict of authority. In Hart v. Johnson, 
81 Ga. 734, 8 S. E. 73, the testator advanced a sum of money, equal 
in amount to a bequest to one of his daughters, to her husband, and 
it was held to be no ademption, the father not stating whether it 
was in lieu of the legacy or not. So a conveyance of realty to a son 
in law was held not to be an advancement to his wife, if not 
shown to have been so intended: Rains v. Hays, 6 Lea, 303, 40 
Am. Rep. 39. A simple gift to a husband after marriage does not 



Estate of Garratt. 407 

adeem a legacy to his wife, daughter of the testator, nor does a sum 
to provide a wedding outfit: Eavenscroft v. Jones, 32 Beav. 669. 

In Dilley v. Love, 61 Md. 603, the court held an advancement by 
a father in law to the husband of his daughter was an advancement 
to the latter; and that it was held an ademption pro tanto where the 
testator gave a legacy to his adopted daughter to be paid her on 
marriage, and she marrying during his lifetime, he gave her husband 
thereafter sums of money from time to time to advance him in busi- 
ness: Ferris v. Goodburn, 4 Jur., N. S., 847. 

For a Particular Purpose. — As before stated, where the testator 
stands neither in a natural nor assumed relation of parent to the 
legatee, the legacy is considered as a bounty and is not adeemed by 
a subsequent advancement. This rule is subject to an exception, 
however, and that is where the legacy is given for a particular pur- 
pose, and the testator afterward fulfills it in his lifetime, or gives 
money to that end: Hine v. Hine, 39 Barb. (N. Y.) 507; In re Bit- 
ter's Estate, 10 Pa. Super, Ct. 852; Monck v. Monck, 1 Ball & B. 
298. Where, therefore, a testator in his will directs his executors 
to make good to a client any loss she might sustain by reason of a 
certain investment which he had made for her, and subsequently to 
the execution of the will he refunds her the exact amount of the 
principal, and she agrees to have no further claim upon him whatever, 
she cannot, after his death, recover under the will a loss resulting 
from costs and taxes, all of which were not referred to on the settle- 
ment: Johnson's Estate, 201 Pa. 513, 51 Atl. 342. See, also, Keiper's 
Appeal, 124 Pa. 193, 16 Atl. 744. But where a husband leaves his 
wife £200 to be paid ten days after his decease, and several years 
after, at the request of his wife, during his last illness, she not 
knowing the contents of the will, he gives her £200, so that she 
might have money immediately on his death without interference of 
the executors, this is not such a particular purpose as to bring the 
case within the rule, and the legacy is not adeemed: Pankhurst v. 
Howell, L. E. 6 Ch. App. 136. In Eosewell v. Bennett, 3 Atk. 77, 
the testator provided in his will for £300 for putting his son as ap- 
prentice; in his lifetime he spent £200 in placing him out as clerk; 
and it was held that evidence was admissible to show that this was 
intended as an ademption. 

A testatrix by her will bequeathed £500 to a niece of her de- 
ceased husband, with these words, "according to the wish of my late 
beloved husband," and subsequently, during her life, she paid the 
niece £300, making an entry in her diary that such payment was a 
legacy from the legatee's uncle. The court held the legacy adeemed 
to the amount of the money advanced: In re Pollock, L. E. 28 Ch. 
D. 552, in which case the Earl of Selborne, S. C, said: "To constitute 
a particular purpose within the meaning of that doctrine it is not, 
in my opinion, necessary that some special use or application of the 
money, by or on behalf of the legatee (e. g., for binding him an ap- 
prentice, purchasing for him a house, advancing him upon marriage 



408 Coffey's Probate Decisions, Vol. 3. 

or the like) should be in the testator's view. It is not less a purpose, 
as distinguished from a mere motive of spontaneous bounty, if the 
bequest is expressed to be made in fulfillment of some moral obliga- 
tion recognized by the testator, and originating in a definite external 
cause, though not of a kind which (unless expressed) the law would 
have recognized, or would have presumed to exist." 

The doctrine of ademption arising from advancement for a particu- 
lar purpose applies only where the testator gives the legacy for one 
particular purpose alone and afterward gives a sum of money with 
the same end in view. So, where a testator left £1,000 for the main- 
tenance of his grandson, with directions that the executors might 
apprentice him, and use the interest on the money therefor, so much 
as not used to be transferred to him when of age, and the testator, 
in his lifetime, subsequently apprenticed him and paid out £126, 
this was held no ademption, the money being bequeathed for more 
than one purpose: Eoome v. Eoome, 3 Atk. 181. 

Ademption is merely presumed, in this class of cases, and may be 
rebutted by evidence: Monck v. Monck, 1 Ball & B. 298; and parol 
evidence is admissible to repel or strengthen this presumption: In re 
Eitter's Estate, 10 Pa. Super. Ct. 352. 

Rcciuisites for Ademption by Advancement to Children. — In order 
for the doctrine of ademption by advancement to apply, it is neces- 
sary that the thing given in satisfaction be of the same nature and 
equally certain with the thing bequeathed, as land is no satisfaction 
for money, nor vice versa: Gilliam v. Chancellor, 43 Miss. 437, 5 Am. 
Eep. 498; Bellasis v. Uthwatt, 1 Atk. 426; nor is a house for a 
pecuniary legacy: Dugan v. Hollins, 4 Md. Ch. 139; Swoope's Appeal, 
27 Pa. 58. 

This rule does not mean that the gift must be in all respects identi- 
cal with the legacy in order to work a satisfaction of the latter. 
It is sufficient if substantially the same, and a small variance in the 
time of payment, or other trifling differences, does not vary the ap- 
plication of the rule: Hine v. Hine, 39 Barb. (N. Y.) 507. 

Where the testator left his son £500 by will, and afterward took 
him into partnership in his jewelry business, the stock of which was 
worth £3,000, it was held no ademption of the legacy, the gift not 
being ejusdem generis: Holmes v. Holmes, 1 Bro. C. C. 555. So the 
value of a beneficial lease granted a son was held no satisfaction 
of a legacy: Grave v. Salisbury, 1 Bro. C. C. 425. On the other 
hand, a bequest of a share in powder works, £10,000 in value, charged 
with an annuity of £20 for a life was held a satisfaction of a 
portion of £2,000: Bengough v. Walker, 15 Ves. Jr. 507. In 
Tuckett-Lawry v. Lamoureux, 1 Oat. 364, 3 Ont. 577, a Canadian 
case, a testator gave by will an annuity to each of his two daugh- 
ters of $6,000. After its execution he gave one daughter, absolutely, 
bonds sufficient to produce an annual income of $1,200, and reduced 
her annuity to that amount by codicil. Subsequently, he gave the 
other daughter the same amount of bonds, and instructed his lawyer 



Estate of Garratt. 409 

to alter his will so as to reduce the annuity to that amount, but, on 
account of his sudden death, it was never done. The court held, in 
spite of the different natures of the gifts, that the doctrine of ademp- 
tion applied, and that the second daughter's annuity should be re- 
duced pro tanto, even without evidence of the testator's intention. 

Money advanced to a daughter during the lifetime of the testator 
was held to work an ademption, although the limitations of the set- 
tlements were different: Sheffield v. Coventry, 2 Euss. & M. 317; the 
circumstance of the limitations being different not affecting the 
question: Durham v. Wharton, 3 Clarke & F. 146. See, however, 
Phillips V. Phillips, 34 Beav. 19. 

A condition attached to a gift may render it not ejusdem generis, 
as where money is given upon a contingency, as marriage or in case 
of surviving the testator; in which case it is no satisfaction of a 
legacy: Spinks v. Eobins, 2 Atk. 491. Nor is it where the contin- 
gency is that she arrive at age: Bellasis v. Uthwatt, 1 Atk. 426. 

Even though the gift is of a different species from the legacy, if 
it was the intention of the testator that it should be substituted for 
the latter, it will be adeemed: May v. May, 28 Ala. 141; Jones v. 
Mason, 5 Eand. 577, 16 Am. Dec. 761; Booker v. Allen, 2 Euss. 
& M. 270. 

Who are in Loco Parentis. — As a gift to a legatee by one in loco 
parentis is alone presumed to be in satisfaction of the portion given 
by will, it becomes necessary to determine who is considered as being 
in that relation. The rule of ademption by advancement is not 
favored by law, as the intent of the testator is as often disappointed 
as served by it: Powel v. Cleaver, 2 Bro. C. C. 499; and being techni- 
cal, is not to be extended: Watson v. Watson, 33 Beav, 574. Of 
course, when the bequest is made by a father to his child no difficulty 
arises, he standing by nature in loco parentis. The rule has been 
held not to apply to remote relations, such as a great uncle, where 
the legatee's father was alive: Shudal v. Jekyll, 2 Atk. 516. The 
fact that the father is alive, however, is not of controlling impor- 
tance, as in Pym v. Lockyer, 5 Mylne & C. 29, the grandfather was 
in loco parentis, although the father of the child was living. To 
the same effect, see Powys v. Mansfield, 3 Mylne & C. 359. 

A grandson stands to a grandfather as a stranger, for the purposes 
of the rule that satisfaction is to be presumed as advancement: 
Swails V. Swails, 98 Ind. 511, citing Ex parte Pye, 18 Ves. Jr. 140; 
■ Eichardson v. Eichardson, Dud. Eq. (S. C.) 184; Allen v. Allen, 13 
S. C. 512, 36 Am. Eep. 716; Shudal v. Jekyll, 2 Atk. 516; Powel v. 
Cleaver, 1 Bro. C. C. 499; Lyddon v. Ellison, 19 Beav. 565. See 
contra, Clendening v. Clymer, 17 Ind. 155; Gilchrist v. Stevenson, 9 
Barb. (N. Y.) 9. 

At common law a man did not stand in the relation of parent to 
his natural child, and on that account such child was favored at the 
expense of legitimate offspring: Wetherby v. Dixon, 19 Ves. Jr. 407, 
Cooper, 279; Ex parte Pye, 18 Ves. Jr. 140. In the latter case Lord 



410 Coffey's Probate Decisions, Vol. 3. 

Eldon condemned this rule, stating that it proceeded upon the arti- 
ficial notion that by giving a legacy to legitimate children the father 
was considered as merely paying a debt of nature: See, however, In 
re Lowes, L. R. 20 Ch. Div. 81. 

There being no obligation on the mother of a child to provide for 
it, as in the case of a father, she cannot be said to stand in loco 
parentis: Bennett v. Bennett, L. R. 10 Ch. D. 474. Nor is a legacy 
to the testator's housekeeper adeemed by a subsequent gift of a 
house, there being no evidence on the part of the testator to put him- 
self in loco parentis to the legatee: Appeal of Sprenkle (Pa.), 15 
Atl. 773. 

The test is whether the circumstances taken in the aggregate 
amount to a moral certainty that the testator considered himself in 
the place of the child's father, and as meaning to discharge those 
natural obligations which it was the duty of the parent to perform: 
Gill's Estate, 1 Pars. Eq. Cas. (Pa.) 139. 

The fact that the child's father is alive is not conclusive against 
the assumption by a stranger of the place of the parent, but it 
affords some inference against it: Powys v. Mansfield, 3 Mylne & C. 
359. On the question as to whether he intended to assume that rela- 
tion parol evidence is admissible, and the declarations of the testator 
allowed for that purpose: Gill's Estate, 1 Pars. Eq. Cas. (Pa.) 139; 
Powys V. Mansfield, 3 Mylne & C. 359; Booker v. Allen, 2 Russ. & M. 
270. 

The relation of parent must exist at the date of the will, or it will 
not be presumed as a portion: Watson v. Watson, 33 Beav. 574. 

Bequest of Residue. — The early rule was that a bequest of the res- 
idue, or part of the residue, of an estate was not adeemed by a sub- 
sequent advancement, the reason being that such bequest was un- 
certain; or, as stated in Freemantle v. Banks, 5 Ves. Jr. 79, the idea 
of a portion is ex vi termini a definite sum; therefore a residuary 
bequest cannot be a portion, and if there is no portion there is no 
ademption by advancement: See, in accord, Davis v. Whittaker, 38 
Ark. 435; Clendening v. Clymer, 17 Ind. 155; Grigsby v. Wilkin- 
son, 9 Bush (Ky.), 91;, Hays v. Hibbard, 3 Redf. (N. Y.) 28; Earn- 
ham v. Phillips, 2 Atk. 215; Smith v. Strong, 4 Bro. C. C. 493. 

Later cases have refused to adopt this view, however. In Matter 
of Turfler's Estate, 1 Misc. Rep. 58, 23 N. Y. Supp. 135, the present 
view is stated as follows: "It is claimed that this principle of ademp- 
tion is not applicable to a bequest of residue, but while the earlier 
authorities seem to have so indicated, yet the later ones hold the 
contrary." In Montefiore v. Guedalla, 1 De Gex, F. & J. 93, Lord 
Chancellor Campbell writing the opinion, at page 99: "It has been 
said that there cannot be an ademption where a testamentary gift 
is of the residue of the testator's property. This position rests upon 
no principle, and if strictly acted upon would produce great injustice. 
The doctrine of ademption has been established for the purpose of 
carrying into effect the intention of fathers of families in providing 



Estate op Garratt. 411 

for their children, and of preventing particular children from obtain- 
ing double portions, contrary to said intention. The only reason for 
the exception is that a residue is uncertain and may be worthless. 
.... But if a testator, after directing his executor to pay debts, 
funeral expenses, and legacies, goes on to say: 'And whereas, I wish 
all the residue of my personal property to be equally divided among 
my three children, I direct that each of them receive one-third of 
the residue,' and afterward he advances £5,000 to a daughter on 
her marriage, or to a son to purchase a commission in the army, 
can there be any doubt that he meaut this sum to be deducted from 
the one-third of the residue coming to the daughter or the son?" 
Speaking of the cases to the contrary, he said: "The whole of that 
class of cases has been swept away by Thynne v. Glengall, 2 H. L. 
Cas. 131. Upon the whole, [Lord Campbell still writing] I think 
the question whether a gift of residue does or does not operate as an 
ademption or satisfaction must depend upon the intention": See, also, 
2 Williams on Executors, 1442. 

A daughter's share of the residue was held adeemed by advance- 
ments made upon her marriage in Beckton v. Barton, 27 Beav. 99; 
Stevenson v. Masson, L. E. 17 Eq. 78. And see In re Vickers, L. R. 
37 Ch. D. 525, in which case a bequest of the residue was held 
adeemed by advancements to sons in business. 

In Meinertzagen v. Walters, L. R. 7 Ch. 670, a testator directed his 
trustees to pay the income of one-half of the residue to his widow 
for life, and to divide the other half between his children in equal 
shares, as tenants in common. After the date of the will, the 
testator made advances to some of his children. It was held that 
such advances could only be brought into account for the benefit of 
the children among themselves, and that the widow was not en- 
titled to have her income increased by having the advances brought 
into account in estimating the residue. In his opinion, Mellish, L. J., 
said: "If the rule is, that we are to carry out what the testator 
intends, it is clear that when he makes a gift in his lifetime, as in 
this case, he does not intend to take away from the residue which he 
has given to a stranger. It cannot possibly be disputed that if the 
testator had given to his widow a life interest in the whole of the 
residue, the fact of making a gift in his lifetime to a child, just 
as to anybody else, must have had the effect of diminishing that 
residue; and it certainly appears to me contrary to reason to hold 
that if, instead of having given his wife a life interest in the whole 
residue, he gives her a life interest in the half, and then makes 
presents to children, she is in that ease to have a life interest in 
that which he meant the child to enjoy immediately." 

Time When Advancement Made. — It is recognized as the law in 
all of the states and in England that a legacy is not adeemed, by 
an advancement made prior to the execution of the will bestowing 
the legacy: Chapman v. Allen, 56 Conn. 152, 14 Atl. 780; In re Lyon's 
Estate, 70 Iowa, 375, 30 N. W. 642; Jacques v. Swasey, 153 Mass, 



412 Coffey's Probate Decisions, Vol. 3. 

596, 27 N. E. 771; Matter of Crawford, 113 N. Y. 560, 21 N. E. 692; 
Zeiter v. Zeiter, 4 Watts (Pa.), 212, 28 Am. Dec. 698; Taylor v. 
Cartwright, L. K. 14 Eq. 167. It will, of course, operate as an ademp- 
tion if the testator charges it in his will against the legatee: 
Kreider v. Boyer, 10 Watts (Pa.), 54; Strother v. Mitchell, 80 Va. 
149; and in Upton v. Prince, Cas. t. Talb. 17, a father advanced some 
of his children with portions during his lifetime, and then made a 
will, in which he recited that he had advanced two of the children, 
but omitted to recite the third, whom he had also advanced, and left 
him a certain sum, and devised the residue equally among them; 
it was held that the money advanced to the third son should go in 
satisfaction of the legacy. 

Where a grandfather made provision for the marriage of his grand- 
son, which he did not fulfill to the letter, but made a larger and 
more beneficial one by will, the latter is a substitution for the 
former, and excludes the idea of a double portion: Waters v. How- 
ard, 8 Gill, 262. 

In Eobbins v. Swain (Ind.), 32 N. E. 792, an advance was made 
by an aunt to one of her nieces, who gave her a receipt, prior to the 
execution of the will, acknowledging the sum as part of the bequest. 
It was held that this was an ademption pro tanto of the legacy, 
as the testatrix intended by her will to make her bounty to this 
and another niece equal, and although the receipt was not mentioned 
in the will. 

Devises of Real Estate. — The doctrine of ademption has no appli- 
cation to devises of real estate, acting only upon personalty be- 
queathed by will: Marshall v. Rench, 3 Del. Ch. 239; Weston v. John- 
son, 48 Ind. 1; Swails v. Swails, 98 Ind. 511; Allen v. Allen, 13 S. 
C. 512, 36 Am. Eep. 716; Clark v. Jetton, 5 Sneed (Tenn.), 229. The 
reason for this is well expressed in Fisher v. Keithley, 142 Mo. 
244, 64 Am. St. Eep. 560, 43 S. W. 650, in the following language: 
"A conveyance by the testator, during his lifetime, of the land 
previously devised, operates as a revocation of the devise. This 
results from necessity on account of a failure of the subject of the 
devise. It cannot be regarded either as ademption or as an excep- 
tion to the statutory mode of revocation. In neither case is it in- 
tended by the courts to set aside the statute or to defeat its pro- 
visions. Eeal estate is known and transferred by its description, 
and in case specific land is devised, a subsequent conveyance of other 
land does not take the devised land out of the will, and cannot effect 
an ademption of the devise without violating the letter and spirit 
of. the statute. The statute was supposed to subserve a salutary pur- 
pose, and should not be disregarded by the courts, even to carry 
out the intention of the testator, and to accomplish a more equitable 
division of his property among his children." See, also, Davys v. 
Boucher, 3 Younge & C. 397, which holds that to allow ademption in 
such cases would be virtually repealing that section of the statute of 
frauds relating to the revocation of wills of real estate. 



Estate of Garratt. 413 

An exceedingly strong case in this connection is Burnham v. Com- 
fort, 108 N. Y. 535, 2 Am. St. Eep. 462, 15 N. E. 710. There a 
testator, by will, devised certain land to his daughter. After its 
execution, in consideration of a sum of money, she signed a written 
instrument which stated that the sum so received was in lieu of her 
share of her father's estate; and it was intended to be in satisfaction 
of the devise. The testator never altered his will, and died fifteen 
years after. It was held that the daughter was entitled to recover 
the land devised, the writing not working a revocation, which could 
only be done by alienation of the land by the testator, or by com- 
plying with the statute. 

The Virginia court, however, has held a contrary doctrine, and in 
Hansbrough v. Hooe, 12 Leigh (Va.), 316, 37 Am, Dec. 659, a devise 
of land was considered adeemed by a gift of other land. 

Pro Tanto Ademption. — In an old English case — Hartop v. Whit- 
more, 1 P. Wms. 681 — it is laid down as the law that where, by 
will, a daughter is given £500, and afterward on her marriage, the 
testator gives her £300 for her portion, this is a revocation of the ^ 
bequest. 

The law now is otherwise, and in such a case where ademption 
occurs, it is pro tanto only, and not absolute: New Albany Trust Co. 
V. Powell (Ind. App.), 64 N. E. 640; Brady v. Brady, 78 Md. 461, 28 
Atl. 515; Hoitt v. Hoitt, 63 N. H. 475, 56 Am. Rep. 530, 3 Atl. 604; 
Eichardson v. Eichardson, Dud. Eq. (S. C.) 184; Thellusson v. Wood- 
ford, 4 Madd. 420; Pym v. Lockyer, 5 Mylne & G. 29; Dawson v. 
Dawson, L. R. 4 Eq. 504; Nevin v. Drysdale, L. E. 4 Eq. 517. 

So where land is conveyed or sold, which has been devised, this 
operates as a revocation only as to the portion transferred: Carter 
V. Thomas, 4 Me. 341; Emery v. Union Soc, 79 Me. 334, 9 Atl. 891; 
Hawes v. Humphrey, 9 Pick. (Mass.) 350, 20 Am. Dec. 481; Webster 
V. Webster, 105 Mass. 538. And where a testator undertakes to dis- 
pose of real and personal property, and subsequently conveys the 
real estate, this does not revoke the will as to the personalty, but 
only pro tanto, as to the amount actually alienated: Warren v. 
Taylor, 56 Iowa, 182, 9 N. W. 128. 

Burden of Proof. — The doctrine of ademption by advanced portions 
proceeds entirely along the lines of the intention of the testator. 
In the ease of his child, it is presumed to be in satisfaction of the 
legacy, and the burden is upon the child to show that such was not 
the testator's intention, and if this is done, no ademption occurs. 
So where a gift has been made to a stranger, although not presumed 
as a satisfaction, it may be shown to have been really so intended, 
but the burden is on the person asserting it: Carmichael v. Lathrop, 
108 Mich. 473, 66 N. W. 350. 

Admissibility of Parol Evidence. — To repel this presumption, it is 
now well settled that parol evidence is admissible. "The object of. 
Buch proof is not to change the will, or to give the language em- 
ployed a meaning different from that which it ordinarily and appro- 



414 Coffey's Probate Decisions, Vol. 3. 

priately has, but merely to show that the testator has not executed 
or satisfied some bequest contained in it, in whole or in part. The 
proof, in other words, does not alter, add to, or change the will, 
but is admitted to show with what intent the subsequent portion, 
gift, or advancement was made": May v. May, 28 Ala. 141. This 
is borne out by the following authorities: Johnson v. Belden, 20 
Conn. 322; Kogers v. French, 19 Ga. 316; Eichardson v. Eveland, 
126 111. 37, 18 N. E. 308; Timberlake v. Parish, 5 Dana (Ky.), 345; 
Matter of Townsend, 5 Dem. (N. Y.) 147; Degraaf v, Teerpenning, 
52 How. Pr. (N. Y.) 313; Langdon v. Astor, 16 N. Y. 9, 3 Duer, 477; 
Gill's Estate, 1 Pars. Eq. Cas. (Pa.) 139; Biggleston v. Grubb, 2 
Atk. 48; Shudal v. Jekyll, 2 Atk. 516; Kirk v. Eddowes, 3 Hare, 509; 
Ellison V. Cookson, 1 Ves. Jr. 100. 

If the presumption against double portions is attempted to be re- 
butted by parol, it may be supported by evidence of the same char- 
acter: Miner v. Atherton, 35 Pa. 528; Powys v. Mansfield, 3 Mylne 
& C. 359. In such a case equity raises the presumption against 
double portions, and parol evidence is admitted merely to confirm 
the presumption already raised: Sims v. Sims, 10 N. J. Eq. 158. 

In Wallace v. Du Boise, 65 Md. 153, 4 Atl. 402, parol evidence was 
held admissible where the money was advanced by a father under 
such circumstances as not to raise the presumption of satisfaction, 
to show that such was really his intention. 

Strength of the Presumption. — Advancements to children are pre- 
sumed to be in satisfaction of legacies, and this presumption is not 
rebutted by slight circumstances: Hinchcliffe v. Hinchcliffe, 3 Ves. 
Jr. 516. So where there is a slight difference between the gift and 
the legacy as to the time of payment, it will not prevail against 
the presumption of satisfaction: Barclay v. "Wainwright, 3 Ves. Jr. 
462; Hartopp v. Hartopp, 17 Ves. Jr. 184. A contrary view is held 
in Van Houten v. Post, 32 N. J. Eq. 709, 33 N. J. Eq. 344, holding 
that the presumption is slight, and citing in support Rosewell v. 
Bennet, 3 Atk. 77; Kirk v. Eddowes, 3 Hare, 509. 

As to the strength of the presumption, the court in May v. May, 
28 Ala. 141, said: "Had the amounts advanced been inconsiderable, 
the presumption that the provisions were cumulative and intended 
BO to operate, would have been much less stringent. But when the 
provision amounts to as much, or more, or approximates very nearly 
the amount to which the child would be entitled under an equal 
distribution as provided for in the will, the presumption becomes 
very strong that the father was executing his will, in part at least, 
and under such circumstances, the law requires very clear and satis- 
factory proof that it was intended by the father to give the children 
thus advanced double portions." As to the occasion of making the 
gift, and its influence upon the presumption, see Robinson v. Whitley, 
9 Ves. Jr. 577. 

Intention of Testator. — The intention of the testator being the 
essence of ademption by advancement, the assent of the legatee ia 



Estate of Garratt. 415 

not necessary: Cowles v. Cowles, 56 Conn. 240, 13 Atl. 414. In 
Georgia a legacy may be adeemed by delivery of property to the 
legatee during the testator's lifetime, but the delivery must be of 
such a character as to show it was the testator's intention to f)art 
at that time irrevocably with dominion over the property; and 
ademption is a question of fact for the jury; Clayton v. Akin, 38 
Ga. 320, 95 Am. Dec. 393. 

A Kentucky statute provides that a provision for or advancement 
to, any person, whether child or stranger, shall be deemed a satis- 
faction in whole or in part of a devise or bequest contained in the 
will, in all cases in which it shall appear from parol or other evi- 
dence to have been so intended. Under this statute, one claiming 
an advancement to be in satisfaction of a legacy must aver that 
such was the intention of the testator: Swinebroad v. Bright, 23 Ky. 
Law Eep. 55, 62 S. W. 484. 

Testator's Books of Account as Evidence. — The books of account of 
a testator, wherein certain sums are directed to be taken from a 
child's portion, as bequeathed by will, are not evidence per se. The 
fact of advancement must be proved by evidence aliunde, which 
taken in connection with the books would prove the fact: Ben- 
jamin v. Dimmick, 4 Kedf. (N. Y.) 7; Lawrence v. Lindsay, 68 
N. Y. 108; Marsh v. Brown, 18 Hun, 319. 

Specific Legacies — Testator's Intention. — The class of legacies thus 
far discussed are those known as general or pecuniary. We now 
come to another class, as to the ademption of which some conflict 
and confusion has arisen — specific legacies, which are, as the name 
implies, bequests of certain, definite objects: Hood v. Haden, 82 Va. 
588. 

One line of cases holds that the ademption of a specific legacy 
does not depend upon the intention of the testator, the sole test 
being, Does the thing bequeathed remain in specie at the time of 
the testator's death? If it does not, it is adeemed: Richards v. 
Humphreys, 15 Pick. (Mass.) 133; Beck v. McGillis, 9 Barb. (N. Y.) 
35; Hoke v. Hermann, 21 Pa. 301; Stanley v. Potter, 2 Cox, 180; 
Humphreys v. Humphreys, 2 Cox, 184. 

The doctrine of these cases is repudiated and criticised in Beall 
V. Blake, 16 Ga. 119, in the following strong language: "A testator's 
intention, if that is not illegal, is the law to his will. To this rule 
there is no exception of which I am aware. And yet I am aware, 
that in 1786, Lord Thurlow, as chancellor, in the case of Ashburner 
V. Macguire, commenced the making of an exception to it, and that 
in the course of a short time afterward in the cases of Badrick v. 
Htevens, 3 Bro. C. C. 431, Stanley v. Potter, 2 Cox, ISO, and Hum- 
phries V. Humphries, 2 Cox, 184, he completed the work, as far as in 
him it lay to complete it. 

"In the last of these cases, he makes the announcement, 'that 
he was satisfied, from the consideration he had given to the cases 
on a former occasion, that the only rule to be adhered to, was to as- 



416 Coffey's Probate Decisions, Vol. 3. 

certain whether the subject of the specific bequest remained in 
specie at the death of the testator; and if it did not, that then 
there must be an end of the bequest; that the idea of discussing 
what might be the particular motives and intentions of the testator, 
in each case, in destroying the subject of the bequest, would be pro- 
ductive of endless uncertainty and confusion': Koper on Legacies, 
244. 

"Now a thing cannot be said to 'remain in specie' a testator's, 
at the time of his death, if before that time he has sold it or other- 
wise parted with it, or if the thing has perished, or if it was never 
his, but was always another's, although he thought it to be his when 
he bequeathed it. Lord Thurlow's announcement comes, therefore, to 
this: That if a testator, after making his will, has sold the thing 
which constitutes a specific bequest, or has otherwise parted with 
it; or if the thing has itself perished; or if it was never his to be- 
queath, but was always another's, although he thought it his — in 
any of these cases, the specific bequest is adeemed — is so completely 
adeemed, that if the case be that the thing given has perished, 
there can be no replacement of it by an equivalent, in money or 
other thing; or if the case be that the thing bequeathed has ceased 
to belong, or has never belonged to the testator, there can be made, 
by the executor with the true owner, no arrangement by which 
to render the thing subject to the bequest, no odds how manifest 
it inay be in the will that the testator intended such replacement, 
or arrangement, whichever it might be, that the case should re- 
quire 

"The upshot of this innovation of Lord Thurlow was a state 
of evil so intolerable that parliament had, at length, to interpose 
with a statute for its suppression. This parliament did, by Stat- 
ute 1 Victoria, chapter 26, section 23, which enacts, 'that no con- 
veyance, or other act, made or done subsequently to the execution 
of a will of or relating to any real or personal estate therein 
comprised, except an act by which such will shall be revoked, as 
aforesaid, shall prevent the operation of the will, with respect to 
such estate, or interest in such real or personal estate, as the testator 
shall have power to dispose of by will, at the time of his death.' 
And section 24, which enacts 'that every will shall be construed with 
reference to the real estate, and personal estate comprised in it, 
to speak and take effect as if it had been executed immediately 
before the death of the testator, unless a contrary intention shall 
appear in the will.' 

"The effect of these enactments must be, in a great measure, if 
not altogether, to suppress Lord Thurlow's innovation, and to make 
the old rule its pristine breadth — to make it a rule without excep- 
tion — the old rule, that the testator's intention gives law to his will." 

Beq.uest of Debt. — The bequest of a debt is a specific legacy, and 
payment to the testator during his lifetime works an ademption 
thereof: Succession of Batchelor, 48 La. Ann. 278, 19 South. 2S3; 



Estate of Garratt, 417 

Badrick v. Stevens, 3 Bro. C. C. 431; Fryer v. Morris, 9 Ves. Jr. 
360; Pawlet's Case, Ld. Eaym. 335; Manton v. Tabois, L. R. 30 
Ch. D. 92. So where a husband gives and bequeaths to his wife 
"all moneys and interest that may be recovered of and from Dr. K., 
for the purchase of the Penrose estate," and he receives the money 
therefor in his lifetime, the specific debt is adeemed: Gilbreath v. 
Alban, 10 Ohio, 64. So a legacy given to satisfy a debt due a 
legatee from a third person is in the nature of a specific legacy, 
and payment by the testator in his lifetime works an ademption: 
Tanton v. Keller, 167 111. 129, 47 N. E. 376, affirming 61 111. App. 
625. See, also, Taylor v. Tolen, 38 N. J. Eq. 91. 

A distinction was formerly made in the case of a bequest of a 
debt, between when it %.'as voluntarily paid, and when paid by com- 
pulsion. In the former case it was held not to work an ademption, 
as the act was not that of the testator, and he could not help 
receiving the amount; while in the latter case the act was his own, 
and showed an intention on his part to treat the legacy as at an 
end: Stout v. Hart, 7 N. J. L. 414; Lawson v. Stitch, 1 Atk. 507; 
Crockat v. Crockat, 2 P. Wms. 164; Rider v. "Wager, 2 P. Wins. 328; 
Drinkwater v. Falconer, 2 Ves. 623; the distinction being borrowed 
from the civil law: Birch v. Baker, Mosely, 373. 

This distinction is at present not recognized, and ademption is 
held to have taken place when the debt was paid, regardless of 
whether done voluntarily or under compulsion: Wyckoff v. Perrine, 
37 N. J. Eq. 118; Ashburner v. Macguire, 2 Bro. C. C. 108, 2 White 
& Tudor Lead. Gas., pt. 1, p. 246. 

A debt may be made the subject of an advancement the same as 
a gift of money. So where by will a testator, after reciting that 
his son owed him a certain sum, due on notes, released him from 
the payment of interest up to the time of his death. Some years 
later he made a codicil, not referring to said release. At the date 
of the will the son owed the testator £1,400, and between the date 
of its execution and that of the codicil that sum was paid off, and 
a subsequent advance of £1,200 was made to the son, which was 
owing at the testator's death. It was held that the release of in- 
terest was equivalent to a specific legacy of the interest on the 
debt due when the will was made, and that it had been adeemed, 
not extending beyond the date of the will: Sidney v. Sidney, L. R. 
17 Eq. 65. See, also, Davis v. Close, 104 Iowa, 281, 73 N. W. 600, 

The declarations of a parent, made after debts have been con- 
tracted, of an intention to treat them as advancement, are not 
admissible, such declarations not being communicated to the child, 
nor accompanied by an act sufficient to obliterate the obligations as 
debts: Yundt's Appeal, 13 Pa. 575, 53 Am. Dec. 496. 

Where the proceeds of a debt, and not the debt itself, given by 

will, are paid during the life of the testator, no ademption occurs. 

In Coleman v. Coleman, 2 Ves. Jr. 639, the testator gave the interest 

of a certain bill of exchange to his wife for life, and directed that 

Prob. Dec, Vol. III. — 27 



418 Coffey's Probate Decisions, Vol, 3. 

after her death the bill should be sold and the money divided among 
certain persons; the bill was paid before the testator's death, and 
was held not adeemed thereby. So where "an amount of money" 
that might accrue from a certain claim was bequeathed, and subse- 
quently paid, under order of court, the money being invested in 
consols, which were treated as subjects of the legacy, ademption was 
held not to have occurred, the court saying: "The strict construction 
of the testator's language makes it not a gift of the debt qua debt, 
but of the sum of money produced when the debt was recovered and 
ceased to exist as a debt. This goes to show that the testator con- 
templated the recovery of the debt in his own lifetime, when the 
subject of the gift could not be the debt itself, but the amount re- 
covered in respect of it'': Clark v. Browne, 2 Smale & G. 524. 

Where a legacy of £2,000 was devised, which was made up of 
debts due the testator and mentioned in a schedule annexed to the 
will, but in fact they amounted only to £1,700, it was held that the 
devisee was entitled to the full £2,000: Pettiward v. Pettiward, Eep. 
T. Pinch, 152. 

Stocks, Shares and Bonds. — Stocks and bonds are the common sub- 
jects of bequests, and difficulty has arisen in the application of the 
doctrine to them. The sale of stock specifically bequeathed, the 
same as the sale of any chattel, works an ademption, and the diffi- 
culty lies in determining whether the legacy is specific. Where a 
testator leaves the income of a certain number of shares, which 
is the exact number he owns at the time, and subsequently sells 
them, the legacy is specific and adeemed: White v. Winchester, 6 
Pick. (Mass.) 48. So where "my £1,000 East India stock" was left 
by will, it was held specific and adeemed by sale thereof: Ashburner 
v. Macguire, 2 Bro. C. C. 108, 2 White & Tudor Lead. Cas., pt. 1, 
p. 246, See, also, Douglass v. Douglass, 13 App. D. C. 21; Harvard 
Unitarian Soc. v. Tufts, 151 Mass. 76, 23 N. E. 1006; Blackstone v. 
Blackstone, 3 Watts (Pa.), 335, 27 Am. Dec. 359. 

In Hosea v. Skinner, 32 Misc. Eep. 653, 67 N. Y. Supp. 527, the 
testator left shares or the proceeds thereof "when realized as same 
would have been to me." Before his death they were sold and 
the proceeds invested in shares of another company. It was held 
that the legacy was specific and adeemed, and the legatee not en- 
titled to the other shares. In Matter of Andrew's Estate, 25 Misc. 
Eep. 72, 54 N. Y. Supp. 708, shares or "the proceeds thereof when 
realized" were bequeathed, and sale of them by the testator was 
held no ademption, and the legatee entitled to the proceeds. 

The sale of stock specifically bequeathed, then, working an ademp- 
tion, stock subsequently purchased by the testator does not pass to 
the specific legatee: Harrison v. Jackson, L. E. 7 Ch. D. 339; Mac- 
donald v. Irvine, L, E. 8 Ch. D. 101. In Pattison v. Pattison, 1 
Mylne & K. 12, a testator bequeathed certain annuities, sold them 
and bought others, different only in that they terminated a quarter 



Estate of Garratt. 419 

of a year sooner. The court held that the specific thing bequeathed 
not existing at his death, it was adeemed. 

Ademption by Exchange, Investment and Conversion. — The same 
rule applies where it is exchanged for, or converted into, other 
security. So where a testator bequeathed debentures in a certain 
company, and subsequently converted them into debenture stock 
of the same company, the latter did not pass by will: In re Lane, 
L. E. 14 Ch. D. 856. 

Slight and immaterial changes in form of the security do not 
work an ademption: In re Frahm's Estate (Iowa), 94 N. W. 444; 
as where the stock is vested in trustees for the use of a person, 
who afterward takes it into her own name: Dingwell v. Askew, 1 
Cox, 427. Where stock in an insurance company was left, which 
company lost its capital stock in the course of business, after the 
making of the will, and on its stock being filled again, the testator 
paid up part only of his shares and retained them till his death, 
the legacy was held not to be adeemed as to such part of the 
stock: Havens v. Havens, 1 Sand. Ch. (N. Y.) 324. 

In Ee Peiree, 25 R. I. 34, 54 Atl. 588, a testatrix bequeathed 
shares of stock in a bank, which subsequently during her lifetime 
consolidated with other banks, the new concern taking over the 
liabilities and assets of the several banks without a formal liquida- 
tion, and their stockholders were allowed to exchange their shares 
for shares in the consolidated bank. No ademption was held to 
have occurred, although the testatrix had to make a small addi- 
tional payment: See, also. In re Pitkington's Trusts, 6 N. E. 246. 
j An exception to the rule exists where the alteration in the stock 
lis brought about by an act of law. So where stock bequeathed is 
subsequently turned into annuities by act of parliament, it is not 
adeemed: Bronsdon v. Winter, 9 Amb. 56; nor does the conversion 
of a state bank into a national bank, under an act of Congress, 
adeem the stock: Maynard v. Mechanics' Nat. Bank, 1 Brewst. (Pa.) 
483. See in this connection Walton v. Walton, 7 Johns. Ch. (N. Y.) 
258, 11 Am. Dec. 456, and Partridge v. Partridge, Cas. t. Talb. 226. 

In Oakes v. Oakes, 9 Hare, 666, a bequest was made of all the 
testator's Great Western Eailway shares, and all other railway shares 
of which he might be possessed at the time of his death; this was 
held to pass the Great Western Eailway shares which he had at the 
date of his will, and which were afterward converted into consoli- 
dated stock, by resolution of the company, made under authority of 
an act of parliament; but not to pass the consolidated stock pur- 
chased by the testator after the date of the will, share and stock 
being two different things. 

When the stock bequeathed is sold, the legacy is adeemed, even 
though similar shares be in the testator's possession at the time of 
his death. So where, being possessed of £1,000 guaranteed stock in 
the N. B. railway, a testator left to a legatee "my one thousand 
N. B. preference shares," and afterward sold them, and died possessed 



420 Coffey's Probate Decisions, Vol. 3. 

of shares in the N. B. railway, acquired by several successive pur- 
chases, exceeding the amount bequeathed, it was held to be adeemed: 
In re Gibson, L. R. 2 Eq. 669. The court there said: "In this case 
the testator, at the time of his death, had not this specific stock 
in any shape. He had parted with it, and acquired by subsequent 
purchase a much larger number of shares. These subsequent pur- 
chases were not in any shape a replacing of the original fund, and 
there is nothing to lead the court to suppose that, having once 
adeemed the specific bequest, the testator has replaced the identical 
thing. He has distinctly referred to one thing in his will, which 
was no longer in existence at the time of his death. That thing, 
and that only, can be considered as the subject of the bequest." 

In Partridge v. Partridge, Cas. t. Talb. 226, one devised to another 
£1,000 capital South Sea stock; at the time of making his will he 
had £1,800 such stock, which afterward, by sale, he reduced to 
£200, subsequently increasing it to £1,600, which amount he had when 
he died. In his opinion the lord chancellor said: "All cases of 
ademption of legacies arise from a supposed alteration of the in- 
tention of the testator; and if the selling out of the stock is an 
evidence to presume an alteration of such intention, surely his 
buying in again is as strong an evidence of his intention that the 

legatee should have it again It would be very hard in the 

case at bar to consider the selling as an ademption, because he 
might sell out for some particular purpose, and as soon as that 
purpose was answered he might buy in again." 

The investment of proceeds unauthorized by the testator has been 
held not to work an ademption: Busan v. Brandon, 8 Sim. 171. The 
facts in that case were as follows: A resident of Jamaica bequeathed 
to a legatee £2,000, part of £7,000 in the hands of his agents in Eng- 
land. He afterward went to Philadelphia, where he died. A week 
before his death he wrote to his agent in Jamaica, requesting him 
to order his agents in England to invest all of the above-mentioned 
sum in any stock most beneficial to his estate. The agent wrote 
accordingly, but before the arrival of his letter in England, the 
jigents there had voluntarily invested the whole of the testator's 
moneys in their hands in certain securities. No ademption resulted, 
the court saying: "A mere unexecuted intention to change the state 
of a fund, which the testator might have revoked, and which, in 
fact, was never carried into execution, cannot, in any sense, be con- 
sidered as an ademption." 

A testator, after bequeathing specific stock, was found a lunatic, 
and under an order in lunacy the stock was sold and the proceeds 
invested in consols. The court held the first stock adeemed, and the 
consols went into the residue of the estate: In re Freer, L. R. 22 
Ch. D. 622; Jones v. Green, L. R. 5 Eq. 555. In Jenkins v. Jones, 
L. R. 2 Eq. 323, however, after the testator had become insane, the 
specific legatee, with the concurrence of the executrix, put the money 
derived from the sale of the shares in a bank,